Rani Kukreja vs Rani Kukreja
2021 Latest Caselaw 5006 HP

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      IN   THE   HIGH   COURT OF   HIMACHAL         PRADESH, SHIMLA




                                                          .
                   ON THE 21st DAY OF OCTOBER, 2021





                                BEFORE

                 HON'BLE MR. JUSTICE SANDEEP SHARMA





           CIVIL MISC. PETITION MAIN (ORIGINAL) No.84 of 2020
     Between:

     RANI KUKREJA,





     W/O SH. NIRMAL KUKREJA,
     R/O DAIZY BANK ESTATE,
     LOWER JAKHU, SHIMLA-171001
                                                               ....PETITIONER


     (BY MR. B.C.NEGI, SENIOR
     ADVOCATE WITH MR. UDIT
     SHAURYA KAUSHIK, ADVOCATE)


     AND


1.   M/S BHAGRA RESORTS




     THROUGH PRABHA BHAGRA,
     C/O BHAGRA NIWAS,
     THE MALL SHIMLA-171001





2.   SH. KRISHAN KANTA BHAGRA,
     (DIRECTOR BHAGRA RESORTS)





     S/O LATE SH. K. B. BHAGRA,
     C/O BHAGRA NIWAS,
     THE MALL SHIMLA-171001

3.   SH. SURYA KANTA BHAGRA,
     (DIRECTOR BHAGRA RESORTS)
     S/O LATE SH. K. B. BHAGRA,
     C/O BHAGRA NIWAS,
     THE MALL SHIMLA-171001

                                                       ....RESPONDENTS
4    THE DIRECTOR TOWN AND
     COUNTRY PLANNING C/O
     BLOCK NO. 32-A SDA COMPLEX
     KASHUMPTI, SHIMLA-171009




                                         ::: Downloaded on - 31/01/2022 23:12:49 :::CIS
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5   THE ASSISTANT TOWN
    PLANNER SADA KUFRI, C/O




                                                                       .
    BLOCK NO. 32-A SDA COMPLEX





    KASHUMPTI, SHIMLA-171009
                                                  ....PERFORMA RESPONDENTS
    (BY MR. AJAY KUMAR, SENIOR





    ADVOCATE WITH MR. SUMIT
    SOOD, ADVOCATE, FOR R-1 TO
    R-3)

    (BY MR. DESH RAJ THAKUR,





    ADDITIONAL       ADVOCATE
    GENERAL, WITH MR. KAMAL
    KISHORE   SHARMA,   DEPUTY
    ADVOCATE    GENERAL,   FOR
    RESPONDENT-THE STATE)

    (BY  MR.   ANIL    CHAUHAN,

    ADVOCATE, FOR R-5)


    Whether approved for reporting?.



    This petition coming on for orders this day, the Court passed the following:




                                         ORDER

By way of instant petition filed under Article 227 of the

Constitution of India, petitioner has prayed for following reliefs:

"a. Direct RespondnetNo.1 to deposit Cost of Rs.1,00,000/- pending since deposit since 28.06.2011. and/or

b. The record of the Ld. Court below pertaining to Civil Suit No. 141- 1 of 18/17 titled as Messers Bhagra Resorts versus Rani Kukreja, Appeal No. 96/2019 titled as Messers Bhagra Resorts Versus Rani Kukreja & Civil Suit No.45 of 2019 titled as Messers Bhagra Resorts & Ors v. Rani Kukreja & Ors, may kindly be called for; and /or c. The suit filed by the respondent No.1 plaintiff before the learned Civil Judge Court No.3 Shimla, bearing Civil Suit No. 45 of 2019, may kindly be rejected with exemplary costs. And /or d. The appeal filed by the respondent No.1 bearing No. 96/2019, titled as Messers Bhagra Resorts versus Rani Kukreja may kindly be dismissed with exemplary costs. And /or e. Exemplary costs be imposed upon the respondents for abusing the process of law and harassing the Petitioner herein"

2. Precisely, grouse of the petitioner as reflects from the

.

averments contained in the petition and as is projected by learned

Senior Counsel, representing the petitioner, is that since respondents

No. 1 to 3, have repeatedly filed different civil suits against them with

respect to the same subject matter and same cause of action, on one

pretext or the other, civil suit bearing No. 45/2019, pending

adjudication in the court of learned Civil Judge Court No.3, Shimla

needs to be quashed being totally barred by provisions contained under

Order 7 Rule 11 CPC.

3. Having heard learned counsel for the parties and perused the

material available on record, this Court finds that one Smt. Prabha

Bhagra, had filed Civil Suit No. 11 of 1999 for specific performance

against Smt. Jayanti Devi, Smt. Prabha Singh, Smt. Shelja Devi and

Ms. Girja Singh, but the same was dismissed and judgment passed in

this case has attained finality. Since suit property, which was subject

matter of the aforesaid suit bearing No. 11 of 1999, was subsequently

purchased by the petitioner herein Rani Kukreja, she became the

absolute owner of the suit property. Ms. Prabha Bhagra, filed suit No.

59-1-2011 for adverse possession against the present petitioner qua

the property, which was subject matter of the earlier suit filed by Ms.

Prabha Bhagra. In the aforesaid background, petitioner herein

approached this court by way of CMPMO No. 185 of 2011 filed under

Article 227 of the Constitution of India, praying therein to quash the

suit detailed herein above and for initiating contempt proceedings

against Smt. Prabha Bhagra for initiating vexatious proceedings

.

concealing material facts. Vide judgment dated 28.6.2011 (Annexure

P-2), this Court quashed the stay order dated 11.5.2011, passed by the

learned trial court in the suit as referred herein above and reserved the

liberty to the petitioner herein to file appropriate application under

Order 7 Rule 11 CPC, praying therein for rejection of the suit on the

ground that it discloses no cause of action. While passing aforesaid

order, though this Court burdened Smt. Prabha Bhagra with costs of

Rs. 1.00 lac for her having filed vexatious litigation but while directing

her to deposit the amount of costs with HP State legal Service

Authority, Shimla, within six weeks, observed that in case costs is not

deposited, suit having been filed by Ms. Prabha Bhagra, shall be

deemed to be dismissed. Since Ms. Prabha Bhagra, failed to deposit

the costs awarded vide aforesaid judgment dated 28.6.2011 passed by

this Court, case No.59-1 of 2011 came to be dismissed for want of

prosecution.

4. After dismissal of the earlier suit as has been taken note

herein above, respondents No 1 to 3 filed fresh suit, claiming therein

easementary rights over the suit property. Petitioner herein filed

application under Order 7 Rule 11 CPC, praying therein rejection of the

plaint, which was allowed, but being aggrieved with order of rejection of

the plaint passed by the competent court of law, respondents No. 1 to 3

filed an appeal before the learned District Judge Shimla. Before

aforesaid appeal could be decided by the learned appellate court,

respondent No.3 filed another suit for injunction bearing Civil Suit

.

No.45 of 2019, against the petitioner herein and as such, petitioner has

again approached this court in the instant proceedings, seeking therein

relief as detailed herein above on the ground that she is being

unnecessarily harassed by the respondents by way of filing vexatious

litigations on same and similar cause of action. Besides above,

petitioner also raised ground that suit sought to be quashed is

otherwise not maintainable being barred under Order 7 rule 11 CPC.

5. Mr. Ajay Kumar, learned senior counsel, appearing for

respondents No. 1 to 3, while making this Court peruse record

vehemently argued that since suit sought to be quashed in the instant

proceedings is altogether on different grounds based upon different

cause of action, prayer made in the petition cannot be accepted.

6. To the contrary, Mr. B.C. Negi, learned Senior Counsel,

appearing for the petitioner, also attempted to persuade this Court to

agree with his contention that civil suit bearing 45 of 2019 sought to be

quashed in the instant proceedings, has been filed with a view to

harass the petitioner without there being any cause of action. Mr. Negi

further argued that though suit sought to be quashed in the instant

proceedings has been filed by the person other than Ms. Prabha

Bhagra, but that is only camouflage, because respondents No. 1 to 3,

are closely related to Ms. Prabha Bhagra, who though may not be party

in the instant suit, but have stakes in the suit property, which was

otherwise subject matter of the earlier litigation initiated at her behest.

7. Perusal of record reveals that earlier, case No. 59-1 of 2011

.

was filed by Ms. Prabha Bhagra in her individual capacity and

respondents No. 1 to 3 were not the party in that suit. This Court

having found earlier litigation initiated at the behest of Ms. Prabha

Bhagra to be vexatious vacated the interim injunction in the suit

reserving liberty to the petitioner herein to file appropriate application

in the competent court of law for rejection of the suit. Though this

Court imposed costs upon Ms. Prabha Bhagra for her having filed

vexatious litigation, but also observed that in case, costs is not

deposited, suit having been filed by Ms. Prabha Bhagra, shall be

deemed to have been dismissed. Though respondents No. 1 to 3 have

claimed that they have no concern, if any, with Ms. Prabha Bhagra, but

bare perusal of material available on record, clearly suggests that Ms.

Prabha Bhagra, is related to respondents No. 1 to 3 and she has also

some stakes in the property, which is subject matter of the suit for

injunction bearing CS No. 45 of 2019. However, since suit is pending

adjudication before the learned trial court and there is specific

provision contained in the Civil Procedure Code for rejection of the suit

on the ground as has been sought to be raised in the instant petition,

there appears to be no justification for this Court to intervene at this

stage, rather, appropriate remedy for the petitioner is to file application

under Order 7 Rule 11 CPC, praying therein for rejection of the plaint,

if not already filed.

8. Otherwise also, record reveals that prior to filing of the suit

.

sought to be quashed in the instant proceedings, learned civil Court

while exercising power under Order 7 Rule 11 CPC has already

quashed the earlier suits having been filed by Ms. Prabha Bhagra and

respondents No. 1 to 3.

9. Consequently, in view of the detailed discussion made

herein above, this court without going into the merits of the case,

deems it fit to dispose of the present petition reserving liberty to the

petitioner to file appropriate application under Order 7 rule 11 CPC for

rejection of the plaint, if so advised and in the event of the filing of such

application, court below shall decide the same expeditiously, preferably

within two months Needless to say, court would decide the application,

if any, filed application under Order 7 Rule 11 CPC in accordance with

law, by affording an opportunity of hearing to both the parties. It is

made clear that observation made in the instant order shall not be

constructed to be reflection on the merits of the main case and shall

remain confined to instant order only.

10. In the aforesaid terms, present petition is disposed of

alongwith pending applications, if any.

    21st October, 2021                                  (Sandeep Sharma),
          (manjit)                                             Judge