Delhi High Court
Smt. Shachi Mahajan vs Smt. Santosh Mahajan on 29 August, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M.(M) No.799/2014 & C.M.Nos.14172/2014(stay)14173/2014(Exemption)
% 29th August, 2014
SMT. SHACHI MAHAJAN ......Petitioner
Through: Mr.A.P.N.Giri, Advocate.
VERSUS
SMT. SANTOSH MAHAJAN ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India impugns
the order of the trial court dated 23.7.2014 by which the trial court dismissed
the application filed by the petitioner/defendant under Section 10 read with
Section 12 and Order II Rule 2 of the Code of Civil Procedure (CPC). In the
subject application, the petitioner/defendant claimed that the present suit is
filed on the same cause of action which arose in the earlier filed suit.
2. The first suit which was filed by the respondent/mother-in-law was a
suit for permanent injunction, that the petitioner/defendant who was also the
defendant in the earlier suit, should not dispossess the respondent/mother-in-
law, the owner, from the portion in the suit property i.e D-113, Anand Vihar,
Delhi which is in occupation of the respondent/mother-in-law. That portion
in the earlier suit was a portion of the suit property which was in possession
of the respondent/plaintiff. Injunction was claimed therefore by the mother-
in-law against the daughter-in-law that the mother-in-law who was the
owner should not be dispossessed of that portion of the property which was
in her occupation and that too as owner of the suit property.
3. The second suit i.e the present/subject suit is a suit filed by the
respondent/plaintiff against the petitioner/defendant with respect to one
room on the first floor of the suit property. This one room on the first floor
of the property was not the subject matter of the earlier suit for permanent
injunction. Therefore, the present suit for possession, mesne profits etc is
with respect to only one room on the first floor of the property, and to seek
possession and mesne profits thereof is therefore a separate cause of action
than the cause of action of the earlier suit for injunction.
4. The trial court has dealt with this aspect in the relevant para 5 of the
impugned order, and which reads as under:-
" 5. I have heard learned counsel for the parties and gone
through the record of the case. Ld. counsel for the defendant
has cited the case laws:- (1) AIR 2013 SC 1712 (2) (2013) 1
SCC, 625 and (3) (2014) 3 SCC 595. It is clear from the
record that plaintiff had filed earlier suit for permanent
injunction against the defendant on the basis of the cause of
action accrued on different dates starting from 16.10.2012 to
19.10.2012 for the relief against forceful dispossession and the
present suit has been filed by the plaintiff seeking recovery of
the portion which is in occupation of the defendant alongwith
the relief of permanent injunction. The case of action a well as
the reliefs claimed in both the suits are different and the
subsequent suit has not been filed on the basis of the cause of
action accrued for the earlier suit. It is clear that the earlier suit
was filed on 20.12.2012 and the present suit has been filed
after plaintiff served the defendant with a legal notice dated
22.12.2012 for vacating the suit property and handing over its
possession to the plaintiff. Thus, it is clear from the pleadings
of the present suit that cause of action for filing the present suit
only accrued after plaintiff served the defendant with aforesaid
notice and also when defendant failed to vacate the suit
property. The cause of action for filing the present suit for
possession was not available to the plaintiff at the time of filing
of the earlier suit. Thus, the present suit not hit by the
provisions of section 12 and Order 2 Rule 2 CPC and thus, the
same is maintainable. The Hon'ble Supreme Court has held in
the case laws cited by learned counsel for the defendant that
the subsequent suit is liable to be dismissed if cause of action
for filing the subsequent suit was available with the plaintiff at
the time of instituting the first suit. It is clear from the
aforesaid discussions that the cause of action for filing the
present suit was not available with the plaintiff at the time of
instituting the earlier suit. Thus, it is mot respectfully observed
that the present suit is not barred by the provisions of Order 2
Rule 2 & Section 12 CPC. The provisions of section 10 CPC
are also not applicable to the present case as subject matter of
both the suits are different, as such, the proceedings of the
present suit are also not liable to be stayed."
5. I do not find any error in the impugned order because cause of action
in the earlier suit was for permanent injunction to restrain the present
petitioner from dispossessing the respondent/plaintiff from the portion of the
property i.e D-113, Anand Vihar, Delhi which was the subject matter of the
earlier suit and which was different than the subject suit in which the dispute
is only with respect to one room on the first floor of the property which is in
possession of the petitioner/defendant and whose possession etc is sought by
the respondent/plaintiff in the present suit.
6. In view of the above, it cannot be said that the cause of action of the
earlier suit and the present suit is the same.
7. Dismissed. Parties are left to bear their own costs.
VALMIKI J. MEHTA, J
AUGUST 29, 2014
KA
