Delhi State Committee Of ... vs Rajesh Malik And Ors.
1997 Latest Caselaw 876 Del

JUDGMENT

Lokeshwar Prasad, J.

(1) The present petition has been filed by the petitioner, named above, under Section 24 and Section 151 of the Code of Civil Procedure,1908 (hereinafter referred to as 'the CPC') with the prayer that necessary orders for transferring the Probate Petition No. 87/94, pending in the Court of District Judge, Delhi to this Court, be passed and the same be tried alongwith Suit No. 601/94 - entitled Delhi State Committee of Communist Party of India (Marxist) v. Shri Rajesh Makhija & Ors.

(2) The facts relevant for the disposal of the present petition he in a narrow compass. The petitioner has filed a suit (Suit No. 601/94 - entitled Delhi State Committee of Communist Party of India (Marxist) v. Shri Rajesh Malik and Others) for possession and mesne profits in respect of property bearing No.C-9, New Multan Nagar, New Delhi (to the extent of 3/4th share in the above said property) in this Court which is still pending. The above suit is in respect of a duly registered will dated the 17th 0ctober,1989 stated to have been executed by late Shri Krishan Lal Malik, vide which, it is alleged, that said Shri Krishan Lal Malik bequeathed and demised all the property movable and immovable in favour of the petitioner/plaintiff. Said Shri Krishan Lal Malik, it is stated, has expired on 15.11.93. Shri Rajesh Malik, respondent/defendant No. 1 has filed a petition (Probate Petition No. 87/94 - entitled Shri Rajesh Malik & Ors. v. The State) under Section 276 of the Indian Succession Act,1925 for the grant of the probate of the Will dated 8th November,1993 alleged to have been executed by late Shri Krishan Lal Malik in respect of property bearing No. C-9, New Multan Nagar, Delhi and other movable properties. The above said petition, filed by respondent/defendant No. 1 Shri Rajesh Malik, is pending the Court of District Judge, Delhi. The parties to the suit (Suit No.601/94) are also parties in the above said Probate Petition pending in the Court of District Judge, Delhi.

(3) It is stated that since both the proceedings i.e. Suit No. 601/94, pending before this Court and Probate Petition No. 87/94, pending in the Court of District Judge, Delhi, involve the same question of facts and law and are in respect of the same property, it is expedient in the interest of justice that both the matters are tried by the same Court.

(4) Notice of the above mentioned application was given to the respondents who have filed a detailed reply to the petition opposing the prayer made by the petitioner.

I have heard the learned Counsel for the parties at length and have also carefully gone through the documents/material on record. The main thrust of the learned Counsel for the petitioner, during the course of arguments was that since both the matters i.e. Suit No. 601 /94, pending in this Court and Probate Petition No. 87/94, pending in the Court of District Judge, Delhi involve same question of facts and law and are in respect of the same property it is in the interest of justice that both the above matters are tried by the same Court. The learned Counsel for the petitioner also stated that in order to avoid conflict of judgments and multiplicity of litigation it is expedient in the interest of justice that both the above referred matters be tried by the same Court. It was urged by him that in view of the above facts the petition, bearing No. 87/94 be directed to be transferred to this Court and be tried alongwith Suit No. 601/94. On the other hand the learned Counsel for the respondents stated that no doubt both the matters involve common question of law and facts but in view of the facts and circumstances of the case, the present petition filed by the petitioner and deserves to be dismissed with costs.

(5) As per settled law where there are two suits/matters which raise certain common questions of fact and law, having a substantial bearing on the decision of each of the cases, it is desirable that they should be tried at the same place and by the same Judge. The above course is necessary in order to avoid multiplicity in the trial of the same issues and conflict of decisions. In the present petition it is noticed that in para 4 of the reply filed on behalf of the respondents it has been admitted by the respondents in unequivocal term that both the above mentioned matters involve common questions of law and facts. In view of the position explained above, in my opinion, it would be just and proper that the two matters i.e. Suit No. 601/94- entitled Delhi State Committee of Communist Party of India (Marxist) v. Shri Rajesh Malik and Others pending in this Court and Probate Petition No. 87/94 - entitled Shri Rajesh Malik & Ors. v. The State, pending in the Court of District Judge, Delhi are tried by the same Court. Accordingly, the petition is allowed and it is directed that the Probate Petition No. 87/94 - entitled Shri Rajesh Malik & Ors. v. The State, pending in the Court of District Judge, Delhi is withdrawn and transferred to this Court to be tried alongwith Suit No. 601/94 pending in this Court. In facts and circumstances of the case the parties are left to bear their own costs. Petition stands disposed of in above terms.