High Court of Delhi was dealing with petition challenges the impugned order dated 30th November, 2021. Vide said order, the application under Order VII Rule 11 CPC, filed by the Petitioner was dismissed.
Brief Facts:
This litigation is between two brothers, Pavan Arya and Ramesh Arya, and the suit herein was instituted by the Respondent in 2017 concerning the suit property. Between the members of the Arya family, there was another suit for partition filed in 2018, by the Petitioner. This partition suit which was filed before the Delhi High Court was decreed vide order dated 5th September, 2019. The suit out of which the present petition arises, is a suit for permanent and mandatory injunction, filed in 2017, prior to the suit seeking a decree for partition.
The question that the Petitioner’s counsel seeks to raise is that the injunction as sought cannot be granted by the Trial Court in view of the judgment on partition already passed by the High Court dated 5th September, 2019. The application was moved by the Petitioner for rejection of the plaint. The said application has been rejected by the Trial Court vide the impugned order, on the ground that the judgment in the partition suit dated 5th September, 2019 only established the shares of all the parties i.e., it determined the rights of all co-owners in the suit property, however the cause of action in the present suit is different, as here the Respondent is seeking an injunction order to gain access to his lawful share in the suit property. Ld. counsel for the Petitioner submitted that if the Trial Court proceeds further, it may result in contradicting the decree which has been passed by the High Court.
HC’s Observations:
The issue before the Court was whether the plaint is liable to be rejected under Order VII Rule 11 CPC. Court found that as per the Trial Court, the application under Order VII Rule 11 CPC has been rejected on the ground that the judgment dated 5th September, 2019 in fact, only, recognized the shares of all the parties.
Court observed that the final decree for partition was passed on 5th September, 2019. However, the admitted position is that none of the decree holders/siblings have taken any steps to give effect to the said final decree of partition. No steps for sale of the property have been taken nor have any remedies been invoked to execute the said decree. In the meantime, the suit filed by the Respondent is proceeding further and the Petitioner has now been unsuccessful in getting the said plaint rejected.
Court stated that it is unclear to the Court as to why none of the parties are taking any steps to give effect to the decree for partition dated 5th September, 2019. Court further stated that whatever may be the reasons between the parties to not effectuate the decree dated 5th September, 2019, the Court does not believe that the suit for permanent and mandatory injunction is liable to be rejected in view of the partition decree.
HC Held:
After evaluating submissions made by both the parties the Court held that “though there is no doubt that the share of the various parties had been determined by the said partition decree, if there are any intervening prayers for injunction which any of the parties wishes to seek, they cannot be stopped from availing of their legal remedies. The injunction as sought relates to the enjoyment and peaceful possession of the property and shall not in any way impinge upon the judgment passed by the Court.”
Bench: Justice Prathiba M. Singh
Case Title: Ramesh Arya v. Pavan Arya
Case Details: C.R.P. 101/2021
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