Bhagirathi vs Rajinder Singh & Ors.
2012 Latest Caselaw 2514 Del

$~A-11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                       Date of Judgment:18.4.2012
+        CM(M) 773/2011 & CM No.12392/2011

      BHAGIRATHI                             ..... Petitioner
                            Through:   Mr.K.P.Mavi, Adv.
                   versus

      RAJINDER SINGH & ORS          ..... Respondents
               Through: Mr.Manish Chauhan, Adv.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 Impugned orders are dated 26.4.2011 and 21.5.2011. Vide order

dated 26.4.2011 the application filed by the petitioner/defendant no.2

under Section 10 of the Code of Civil Procedure (hereinafter referred to

as the 'Code') seeking stay of the Civil Suit No.929/2008 had been

declined. The second order dated 21.5.2011 had declined the prayer

made by the defendant for filing written statement; court had noted that

the period for filing written statement is already long since over. The

application under Section 10 of the Code filed by the defendant had

been dismissed on 26.4.2011 and even after the dismissal of the said

application written statement was not filed and as such the submission

of the defendant that he did not file his written statement for the reason

that his application under Section 10 of the Code was noted as an

argument devoid of merit.

2 These two orders are the subject matters of the present petition.

3 Record shows that the parties are closely related; petitioner is the

daughter-in-law of the respondent no.2 namely Smt. Vedwati. Smt.

Vedwati had filed a suit for possession and damages against her son and

her daughter-in-law namely Bhagirathi. This suit was filed on

28.5.1999. Contention was that all the legal heirs of Gopi Chand

(deceased husband of the petitioner) have relinquished their shares in

favour of Smt. Vedwati and in view of this aforenoted relinquishment

deed dated 17.4.1996 Smt. Vedwati had become complete owner of the

suit property and she is entitled for the possession of the suit property.

Her daughter-in-law and son both are living in the aforenoted suit

property. She had accordingly filed the present eviction petition seeking

eviction of her daughter-in-law(Bhagirathi- defendant no.2) as also

respondent no.1 her son.

4 Thereafter a second suit had been filed by the present petitioner

i.e. Bhagirathi which was a suit for maintenance/residence under Section

18(2) of the Hindu Adoption and Maintenance Act, 1986; prayer made

in this suit has been perused. Prayer (bb) is to the effect that the

relinquishment deed dated 11.4.1996 by virtue of which her husband

Rajinder Singh had relinquished his share in the suit premises in faovur

of her mother-in-law (Vedwati) be declared null and void. This suit was

filed in October 2007.

5 Thereafter an application had been filed by the

petitioner/Bhagirathi under Section 10 of the Code of Civil Procedure

(hereinafter referred to as the Code) which was on 26.4.2011. The

averments made in this application have been perused. Contention was

that since matters in dispute in both the aforenoted suit are the sane, the

proceedings in the present suit i.e. second suit be stayed till the disposal

of the first suit.

6 Section 10 of the Code postulates that no court shall proceed with

the trial of any suit in which the matter in issue is also directly and

substantially in issue in a previously instituted suit between the same

parties or between parties under whom they or any of them claiming

under the same title. This section only bars trial of the second suit and

not the institution. The matter in issue in both suits must be directly and

substantially the same. One of the tests for the applicability of Section

10 is whether the final decision reached in the first suit will operate as

a res judicata in the second suit. The object of this Section is to prevent

the courts of concurrent jurisdiction from simultaneously trying two

parallel suits in respect of the same matter in issue.

7 The first suit as noted supra is a suit for possession; the claim of

the plaintiff Vedwati is not based on the relinquishment deed alone; she

is admittedly a co-owner in the suit property having derived title in the

suit premises from her deceased husband. Even a co-owner can

maintain a suit for possession. The prayers made in the first suit are in

no manner related or a matter substantially in issue in the second suit.

Presuming that the prayer in the first suit is allowed and a decree for

possession is passed in favour of Ved Wati, it would not take away the

right of Bhagirathi to continue with her suit for maintenance and to get

the relinquishment deed declared null and void as Ved Wati is even

otherwise a co-owner in the aforenoted suit premises having derived her

co-ownership by virtue of being the widow of Gopi Chand. The matter

in issue in the first suit and the second suit are totally different.

Application under Section 10 of the code was rightly dismissed. Order

calls for no interference in this count.

8 The second impugned order dated 21.5.2011 had foreclosed the

right of the petitioner to file written statement. Record shows that the

defendant had been served and time for filing written statement

commenced from 26.4.2010; court had, however, on the ground of

leniency even excluded the period even during which the application

under Section 10 of the Code was filed by the defendant remained

pending. Application under Section 10 of the Code was dismissed on

26.4.2011. Yet even up to 26.4.2011 written statement was not filed.

Defence of the defendant was rightly struck off as no explanation has

been furnished whatsoever and not a whisper has been made even before

the court as to why the written statement was not filed during this

intervening period. Order dated 26.5.2011 also does not call for any

interference.

9     Petition is without any merit. Dismissed.




                                           INDERMEET KAUR, J

APRIL 18, 2012
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