Smt. Premlata Gandhi And Ors. vs Smt. Nimmi Gandhi
2004 Latest Caselaw 1054 Del

JUDGMENT

H.R. Malhotra, J.

1. This is an application under Section 10 of the Code of Civil Procedure read with Section 151 CPC by the defendant seeking stay of the suit primarily on the ground that previously instituted between the same parties is pending before the Calcutta High Court and that the matter in issue involved in the suit in hand is also directly and substantially in issue in previously instituted suit between the same parties at Calcutta High Court and therefore according to the defendant the present suit filed by the plaintiffs is liable to be stayed under Section 10 of CPC.

2. The defendant while making this application has also annexed copy of the plaint of Calcutta High Court.

3. The plaintiffs have filed reply to this application repudiating the averments made in the defendant's application and claiming that two suits , one filed by the defendant at Calcutta and another filed by the plaintiff in Delhi are not alike in natur nor the matter in issue in both the suits are directly and substantially similar.

4. After hearing learned counsel for both the parties and also having perused the provisions of Section 10 I am of the considered opinion that the suit filed in this Court cannot be said to be of similar nature as filed in Calcutta High Court nor it can be said that matter in issue arising in this suit is directly and substantially in issue in previously instituted suit at Calcutta High Court. Two suits are of absolutely different nature. The suit filed before this Court is suit for partition in respect of two immovable properties situated within the jurisdiction of Delhi whereas the suit instituted in Calcutta High Court is a suit for declaration and permanent injunction and also mandatory injunction. The relief claimed in the previously instituted suit is completely distinct from the reliefs claimed in the suit in this Court. More so parties in the suit filed at Calcutta are substantially different than the parties in the suit filed in Delhi High Court. From the reading of the plaint filed at Calcutta High Court and the one filed in Delhi High Court, it is quite evident that issue which shall be framed in due course of time after completing the pleadings will be completely different than the issue to be framed by Calcutta High Court. So the parties will have to lead different evidence for the purpose of proving the respective controversies. These two suits even do not look like in terms of the pleadings. Even otherwise the properties for which partition is sought are situated in Delhi. Therefore according to Section 16, suit affecting partition of immovable properties have to be instituted in the Court within local limits of whose jurisdiction the property is situated. In the case in hand the properties sought to be partitioned are situated in Delhi and the defendant also resides and works for gain in Delhi and there being a clear mandate in view of Section 16 of CPC suit for partition of immovable property in any event is to be tried by this Court; immovable property being situated in Delhi. For all these reasons the application has no merit and is dismissed as such.