Ram Dass Narang vs Attar Singh
1995 Latest Caselaw 623 Del

JUDGMENT

Devinder Gupta, J.

(1) This is defendant's application for staying the suit under Section 10 of the Code Civil Procedure on the ground of pendency of a previously instituted suit between same parties in which it is alleged that issues and controversies are substantially same between the parties.

(2) I have heard learned counsel for the parties, who have taken me through the tire record.

(3) Plaintiffs are the son of Jai Ram Narang and have claimed a decree of declaration that judgment and decree passed in suit No.63/76 by the court of Shri P.L.Singla, then Sub Judge 1st Class, Delhi is null and void and is not binding on them. They have also prayed for declaration that defendant has no right, title or interest in shop 10.39, Edward Lines, Kingsway Camp, Delhi or any part thereof and that plaintiffs re the exclusive owners of shop No.39, Kingsway Camp, Delhi and that no partition shop No.39 had ever taken place between late Jai Ram Narang and the defendant. Decree for injunction has also been claimed by the plaintiffs restraining the defenadants from claiming any right, title or interest in terms of the decree passed by Shri P.L.Singla, the then Sub Judge, 1st class, Delhi

(4) All the averments made in the plaint need not be stated since the prayer clause self gives an inclination about the nature of the averments made by the plaintiffs in the plaint.

(5) The suit was instituted on 19th November, 1991. It is not in dispute that prayer in the suit instituted by the defendant on 30th September, 1991 against the plaintiffs and two others is for injunction with respect to part of the suit property, namely, shop No.39B, Edward Lines, Kingsway Camp, Delhi restraining them from demolishing the partition wall and from dispossessing him from the suit property. The suit has been filed by the defendant alleging himself to be the owner on the basis of a partition effected between him and late Shri Jai Ram Narang and also claiming title on the basis of the decree passed in Suit No.63 of 1967 titled as Attar Singh v. Jai Ram etc. decided on 2nd October, 1967 by Shri P.L.Singla. It is also not in dispute that plaintiffs herein have filed a written statement in the said suit in which they have disputed the defendant's title to shop 39-B, which is part of shop no.39 and have also challenged the legality and validity of the decree passed by Shri P.L.Singla. In other words, by way of defense to the defendant's suit the plaintiffs have set up the same case which they have pleaded in the plaint in the instant suit. Copy of the issues framed in the suit instituted by the defendant, which is presently registered as suit No.21/91 and is stated to be pending in the court of Mrs.Mamta Shingla, Sub Judge, Delhi have also been placed on the record.

(6) No doubt, there is no specific issue framed in the previously instituted suit as regards the legality and validity of the decree which has been challenged by the plaintiffs in the instant suit but the said issue, as regards the legality and validity of the decree passed by Shri P.L.Singla is the main substantial issue arising for determination between the parties.

(7) In the previously instituted suit an issue has been framed that whether Altar Singh is in possession of the suit property as an owner for which while rebutting the evidence which to be led by the defendant Attar Singh, it will be necessary for the plaintiffs to point out to the court all grounds raised in the instant suit seeking to challenge the decree for which they are seeking declaration that decree passed in Suit no.63/87 by the court of Shri P.L.Singla, the then Sub Judge 1st Class, Delhi is null and void and is not binding on them.

(8) Since in the previously instituted suit between the parties, the primary issue is also the subject matter which in the instant suit, is directly and substantially in issue, the proceedings in the instant suit are liable to be stayed till the disposal of suit No.21/92 titled as Attar Singh v. Jai Ram Narang pending in the court of Mrs.Mamta Shingla, Sub Judge, 1st class, Delhi. Ordered accordingly. The application is allowed. Liberty is reserved to the plaintiffs to have the instant suit revived after the disposal of the previously instituted suit.