* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 2nd November , 2017
Decided on: 15th November, 2017
+ CS(OS) 430/2016
SH SAURABH SHARMA
..... Plaintiff
Represented by: Ms. Neha Garg, Adv.
versus
SMT OM WATI AND OTHERS
..... Defendant
Represented by: Mr. N.K. Goyal, Adv. for
D-1 to 4.
Mr. Amit Gupta, Adv. for
D-5&6.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1.
Plaintiff filed the present suit inter-alia seeking a decree of declaration of being owner of 1/16th share in the suit property No.500/5, Pandav Nagar, Vishwas Nagar, Shahdara; partition of the suit property and injunction against the defendant Nos.1 to 4. Plaintiff Saurabh Sharma is the son of defendant No.2 Ashok Sharma. Defendant No.1 is the wife of late Sunder Lal Sharma whereas defendant Nos.2 and 3 i.e. Ashok Sharma and Gopal Sharma the sons of late Sunder Lal Sharma, defendant No.4 the married daughter of late Sunder Lal Sharma and defendant No.5 and 6 are the grand- daughters of late Sunder Lal Sharma and real sisters of the plaintiff.
2. It is the case of the plaintiff that the plaintiff and defendant No.5 and 6 (though wrongly stated in the plaint as defendant No.4 and 5) have been CS(OS) 430/2016 Page 1 of 6 repeatedly requesting the defendant No.1 to give the share from the sale proceeds of 150 sq.yards of the property sold by defendant No.1 to one Anil Jethliya in the year 2012 without any legal necessity. Plaintiff claims to be in possession of three shops in the suit property and alleges that defendant No.1 is asking for the keys of the suit property so that she could sell the said property. It is claimed that the property is a joint Hindu undivided property and plaintiff and defendants are residing together at 3/156, Gali Ganga Ram, Telwara, Shahdara as joint family members.
3. On summons being issued a common written statement was filed by defendant No.1 to 4 seeking rejection of the plaint under Order VII Rule 11 CPC and also that the suit was barred under Order II Rule 2 CPC as the plaintiff had already filed a suit against defendant No.2 on the same allegations which is pending in the Court of the learned ADJ, Shahdara. It is also claimed that the suit has been under-valued.
4. No objections have been filed by defendant Nos. 5 and 6 and vide order dated 20th February, 2017 learned counsel on their behalf stated that defendant Nos. 5 and 6 were supporting the claim of the plaintiff.
5. On the pleadings of the parties this Court settled the issues with issue No.(1) as "Whether the suit is barred under Order II Rule 2 CPC be treated as a preliminary issue? (OPD-1-4)".
6. Learned counsels for the parties have addressed their respective arguments on the preliminary issue. Learned counsel for the defendant Nos. 1 to 4 states that the plaintiff having already instituted a suit in respect of the same property cannot maintain the present suit whereas learned counsel for the plaintiff relying upon the decision of this Court in ILR (2012) 6 DELHI 262 Sat Bhan Singh & Anr. Vs. Mahipat Singh & Ors. claims that since in CS(OS) 430/2016 Page 2 of 6 the earlier suit the plaintiff did not claim the relief of partition, the present suit is not barred under Order II Rule 2 CPC.
7. Copy of the plaint in Suit No. 307/2015 pending before the Senior Civil Judge, Karkardooma has been placed on record. The said suit was filed by Saurabh Sharma, the plaintiff herein along with his mother Savita Sharma, w/o defendant No.2 impleading the defendants No.1 to 4 herein as defendants. The prayers in the said suit inter-alia were a decree of permanent injunction restraining the defendants, their agents, servants, etc., from selling alienating or parting with possession or creating any third party interest in the suit property i.e. market constructed on a total area of 220 sq. yards forming part of property No.500/5 (old), new No. (26/66) situated at Pandav Road, Vishwas Nagar, Shahdara; a decree of declaration in favour of the plaintiff's declaring them as legal and rightful co-owners of the market constructed on a total area of 220 sq. yards on the suit properties besides costs.
8. The said suit was rejected under Order VII Rule 11 CPC vide order dated 28th November, 2015 by the learned Civil Judge on the ground that admittedly the plaintiffs therein were not in physical possession of the suit property nor share of the plaintiffs have been partitioned and cloud is raised over their title which is in dispute, hence they were required to file a suit for declaration, possession with or without a consequential injunction and not a suit for declaration and injunction simplicitor. An appeal was filed by the plaintiffs in the said suit against the order of the Civil Judge dated 28th November, 2015 rejecting the suit as not maintainable. Vide order dated 5th July, 2016 the learned ADJ in RCA No.133/2016 permitted the plaintiff to CS(OS) 430/2016 Page 3 of 6 withdraw the appeal with liberty to file appropriate case before appropriate Court.
9. In AIR (1949) Privy Council 78 Mohammad Khalil Khan & Ors. Privy Council laid down the principles governing bar of a subsequent suit under Order II Rule 2 CPC as under:
"(1) The correct test in cases falling under O. 2 R. 2, is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit,"
(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment.
(3) If the evidence to support the two claims is different, then the causes of action are also different.
(4) The causes of action in the two suits may be considered to be the same if in substance they are identical. (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers.... to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour."
10. The Constitution Bench of Supreme Court in the decision reported as 1995 Supp (4) SCC 286 Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma held as under:
"57. Even assuming, although there appears no doubt, that the finding recorded by the High Court in its earlier judgment on the authenticity of the canon survived, there is yet another reason to disregard it. If the excommunication of Dionysius was invalid for violation of principles of natural justice, as was found by the Bench reviewing the order, then the findings on other issues were rendered unnecessary and it is fairly settled CS(OS) 430/2016 Page 4 of 6 that the finding on an issue in the earlier suit to operate as res judicata should not have been only directly and substantially in issue but it should have been necessary to be decided as well. For instance, when a decision is taken in appeal the rule is that it is the appellate decision and not the decision of the trial court that operates as res judicata. Consequently where a suit is decided both on merits and on technical grounds by the trial court, and the appellate court maintains it on technical ground of limitation or suit being not properly constituted then the decision rendered on merits by the trial court ceases to have finality. In Abdullah Ashgar Ali Khan v. Ganesh Dass [AIR 1917 PC 201 : 45 Cal 442 : 19 Bom LR 972] the Court while considering the expression, "heard and finally decided" in Section 10 of the British Baluchistan Regulation IX of 1896 held that where the suit was dismissed by two courts on merits but the decree was maintained in second appeal because the suit was not properly constituted then the finality on merits stood destroyed. In Sheosagar Singh v. Sitaram Singh [ILR (1897) 24 Cal 616 : 24 IA 50 : 1 CWN 297] where parentage of defendant was decided in his favour by the trial court but the High Court maintained the order as the suit was defective the claim of the defendant in the latter suit that the finding on parentage operated as res judicata was repelled and it was held that the question of parentage had not been heard and finally decided in the suit of 1885. The appeal in that suit had put an end to any finality in the decision of the first court, and had not led to a decision on the merits.
58. The rationale of these decisions is founded on the principle that if the suit was disposed of in appeal not on merits but for want of jurisdiction or for being barred by time or for being defectively constituted then the finality of the findings recorded by the trial court on merits stands destroyed as the suit having been found to be bad for technical reasons it becomes operative from the date the decision was given by the trial court thus rendering any adjudication on merits impliedly unnecessary. On the same rationale, once the Royal Court of Appeal allowed the review petition and dismissed the appeal as the excommunication of Dionysius was contrary to principles of CS(OS) 430/2016 Page 5 of 6 natural justice and he had not become heretic then the finding on authenticity of the canon etc. rendered in the original order was rendered unnecessary. Therefore, the finding recorded on the authenticity of the canon and power of the Patriarch etc. recorded in the earlier order could not operate as res judicata in subsequent proceedings.
[Emphasis supplied]"
11. Considering that in the appeal filed against rejection of the earlier suit liberty was granted to the plaintiff to file appropriate case in appropriate Court, the present suit cannot be rejected for not taking leave under Order II Rule 2 CPC. The preliminary issue No.(1) is thus decided in favour of the plaintiff and against the defendants.
(MUKTA GUPTA) JUDGE NOVEMBER 15, 2017 'ga' CS(OS) 430/2016 Page 6 of 6