$~A-11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:18.4.2012
+ CM(M) 773/2011 & CM No.12392/2011
BHAGIRATHI ..... Petitioner
Through: Mr.K.P.Mavi, Adv.
versus
RAJINDER SINGH & ORS ..... Respondents
Through: Mr.Manish Chauhan, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 Impugned orders are dated 26.4.2011 and 21.5.2011. Vide order dated 26.4.2011 the application filed by the petitioner/defendant no.2 under Section 10 of the Code of Civil Procedure (hereinafter referred to as the 'Code') seeking stay of the Civil Suit No.929/2008 had been declined. The second order dated 21.5.2011 had declined the prayer made by the defendant for filing written statement; court had noted that the period for filing written statement is already long since over. The application under Section 10 of the Code filed by the defendant had been dismissed on 26.4.2011 and even after the dismissal of the said application written statement was not filed and as such the submission CM(M) No.773/2011 Page 1 of 5 of the defendant that he did not file his written statement for the reason that his application under Section 10 of the Code was noted as an argument devoid of merit.
2 These two orders are the subject matters of the present petition. 3 Record shows that the parties are closely related; petitioner is the daughter-in-law of the respondent no.2 namely Smt. Vedwati. Smt. Vedwati had filed a suit for possession and damages against her son and her daughter-in-law namely Bhagirathi. This suit was filed on 28.5.1999. Contention was that all the legal heirs of Gopi Chand (deceased husband of the petitioner) have relinquished their shares in favour of Smt. Vedwati and in view of this aforenoted relinquishment deed dated 17.4.1996 Smt. Vedwati had become complete owner of the suit property and she is entitled for the possession of the suit property. Her daughter-in-law and son both are living in the aforenoted suit property. She had accordingly filed the present eviction petition seeking eviction of her daughter-in-law(Bhagirathi- defendant no.2) as also respondent no.1 her son.
4 Thereafter a second suit had been filed by the present petitioner i.e. Bhagirathi which was a suit for maintenance/residence under Section CM(M) No.773/2011 Page 2 of 5 18(2) of the Hindu Adoption and Maintenance Act, 1986; prayer made in this suit has been perused. Prayer (bb) is to the effect that the relinquishment deed dated 11.4.1996 by virtue of which her husband Rajinder Singh had relinquished his share in the suit premises in faovur of her mother-in-law (Vedwati) be declared null and void. This suit was filed in October 2007.
5 Thereafter an application had been filed by the petitioner/Bhagirathi under Section 10 of the Code of Civil Procedure (hereinafter referred to as the Code) which was on 26.4.2011. The averments made in this application have been perused. Contention was that since matters in dispute in both the aforenoted suit are the sane, the proceedings in the present suit i.e. second suit be stayed till the disposal of the first suit.
6 Section 10 of the Code postulates that no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claiming under the same title. This section only bars trial of the second suit and not the institution. The matter in issue in both suits must be directly and CM(M) No.773/2011 Page 3 of 5 substantially the same. One of the tests for the applicability of Section 10 is whether the final decision reached in the first suit will operate as a res judicata in the second suit. The object of this Section is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. 7 The first suit as noted supra is a suit for possession; the claim of the plaintiff Vedwati is not based on the relinquishment deed alone; she is admittedly a co-owner in the suit property having derived title in the suit premises from her deceased husband. Even a co-owner can maintain a suit for possession. The prayers made in the first suit are in no manner related or a matter substantially in issue in the second suit. Presuming that the prayer in the first suit is allowed and a decree for possession is passed in favour of Ved Wati, it would not take away the right of Bhagirathi to continue with her suit for maintenance and to get the relinquishment deed declared null and void as Ved Wati is even otherwise a co-owner in the aforenoted suit premises having derived her co-ownership by virtue of being the widow of Gopi Chand. The matter in issue in the first suit and the second suit are totally different. Application under Section 10 of the code was rightly dismissed. Order CM(M) No.773/2011 Page 4 of 5 calls for no interference in this count.
8 The second impugned order dated 21.5.2011 had foreclosed the right of the petitioner to file written statement. Record shows that the defendant had been served and time for filing written statement commenced from 26.4.2010; court had, however, on the ground of leniency even excluded the period even during which the application under Section 10 of the Code was filed by the defendant remained pending. Application under Section 10 of the Code was dismissed on 26.4.2011. Yet even up to 26.4.2011 written statement was not filed. Defence of the defendant was rightly struck off as no explanation has been furnished whatsoever and not a whisper has been made even before the court as to why the written statement was not filed during this intervening period. Order dated 26.5.2011 also does not call for any interference.
9 Petition is without any merit. Dismissed.
INDERMEET KAUR, J
APRIL 18, 2012
nandan
CM(M) No.773/2011 Page 5 of 5