R.S. Jain vs R. Srinivasan
1987 Latest Caselaw 136 Del

JUDGMENT

Sunanda Bhandare, J.

(1) By this petition under Section 24 of the Code of Civil Procedure the petitioner is seeking transfer of the suit no. 290 of 1985pending in the Court of Shri V.K. Jain, Sub Judge, 1st Class, Delhi filed by the respondents against the petitioner for permanent and mandatory injunction restraining her, through her agents, representatives, employees or associates from constructing rooms and digging the Barsati floor of Flat No. 402, 5Kaushalya Park, Hauz Khas, New Delhi and other consequential relief on the ground that another suit filed by Shri Ashok Kumar Jain who is the son of the petitioner herein, for recovery of damages against the petitioner and fiveothers, is pending in this Court and it is expedient to hear the two suitstogether.

(2) Learned counsel for the petitioner contended that the issues in the two suits are somewhat similar and if both the suits are tried together, it will avoid multiplicity and conflicting decisions. Learned counsel referred to the judgment of the Supreme Court in Indian Overseas Bank, Madras v. Chemical Construction Co. & Others, wherein it has been held as follows :- "ALTHOUGH the exercise of this discretionary power cannot be imprisoned within the strait-jacket of any cast iron formula uniformly applicable to all situations. Yet, certain broad propositions as to what may constitute a ground for transfer can be deduced from judicial decisions. One of them is that where two suits raising common questions of facts and laws between parties common to both the suits, are pending in two different courts, it is generally in the interest of justice to transfer one of those suits to the other forum to be tried by the same Court, with consequent avoidance of multiplicity in the trial of the same issues and the risk of conflicting decisions thereon. The instant case falls squarely within this category."

From the perusal of the plaint in the two suits and considering the rival contentions advanced by the learned counsel for the parties, it appears that inS.N. 290/85 for injunction pending in the Court of Shri V.K. Jain, Sub Judge,Delhi though the plaintiff therein i.e. respondent herein has admitted that Shri Ashok Kumar Jain ; e. son of the petitioner herein is the owner of Barsati floor No. 402, this Ashok Kumar Jain has not been made a party to the suit and the relief sought for is against the mother of Shri Ashok Kumar Jain.Apart from Mrs. R.S. Jain, petitioner herein, there are three other defendants namely ; S.H.O., Police Station Hauz Khas, New Delhi, Municipal Corporation of Delhi and Shri Vijay Kapur who was the original owner of the land on which the building was constructed and it is alleged that these three defendants did not take any remedial action against Mrs. R.S. Jain from carrying on the construction. The main allegation in this suit is that the construction carried out by Mrs. R.S. Jain is unauthorised and has resulted in weakening the portion in the occupation of the plaintiff because the building has become weak and developed cracks in walls. The suit for damages pending in this Court is filed by Shri Ashok Kumar Jain who is the son of the present petitioner. The present petitioner is not a party in that suit and apart from respondent no. 1 herein, there are 5 other defendants who are also the residents of the same building. In this suit, Shri Ashok Kumar Jain has claimed damages of Rs. 1,50,000.00 suffered not only on account of the injunction obtained by respondent No. 1 herein from the court of Shri V.K.Jain, subJudge, 1st Class,, Delhi but also because of the loss caused by the defendants to their property by breaking and causing damages to the suit property.Though, it may be true that some of the evidence in the two suits is likely to be over-lapping, I find that the main controversy in the two suits is notcommon. Though, in the suit pending before Shri V. K. Jain, Sub Judge,1st Class, Delhi it is admitted by respondent no. 1 that the real owner isAshok Kumar Jain. Ashok Kumar Jain is not a party to that suit nor are the other tenants parties in the suit for damages. Thus, the parties in both the suits are also not common.

(3) This being the position, in my view, the case of the petitioner is not covered by the principle laid down by the Supreme Court in Indian OverseasBank's case (supra).

(4) In the result the petition is dismissed.