Kashi Ram & Ors vs Ramji Lal (Deceased) Thr Lrs & Ors
2023 Latest Caselaw 9386 P&H

                                                           Neutral Citation No:=2023:PHHC:084137




SAO-24 of 2017 (O&M)                                        2023:PHHC:084137
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        IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH


                                                      SAO-24 of 2017 (O&M)
                                                   Date of Order: 05.07.2023

Kashi Ram and others
                                                                      .Appellants
                                     Versus

Ramji Lal (deceased) through LRs and others                       ..Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present: Mr. Ajay Jain, Advocate, for the appellants.

Mr. Parvinder Singh, Advocate for respondent No.1 to 6, 7(i) to 7(vii), 8 & 9.

ANIL KSHETARPAL, J

1. The learned trial court has dismissed the suit by adopting a

strange procedure of framing a preliminary issue and thereafter dismissing

the suit on the ground that the previous suit filed for grant of relief of an

injunction was withdrawn by the plaintiff. In the subsequent suit, the

plaintiffs sought decree of declaration while claiming that the various sale

deeds executed by the defendants were required to be declared null and

void.

2. The First Appellate Court has set aside the impugned judgment

of the trial court. While remitting the case back, the trial court has been

directed to decide the suit comprehensively. The correctness of the order

passed by the First Appellate Court has been assailed in this appeal.

3. This Bench has heard the learned counsels representing the

parties at length and with their able assistance perused the paper book.

4. The learned counsel representing the appellants contends that

the cause of action for both the suits, namely, the first suit for grant of decree

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and injunction as well as the second suit for grant of decree of declaration is

same.

5. The learned First Appellate Court after appreciating the

pleadings in both the suits has concluded that the cause of action for filing

the subsequent suit for declaration is separate. It has been explained that the

defendants subsequently on the basis of mutation of the particular area

started preparations for raising the construction and then the cause of action

for filing the subsequent suit arose.

6. The learned counsel representing the appellants contends that

the subsequent suit is barred under Order 2 Rule 2 of the Code of Civil

Procedure, 1908 that bars the plaintiff to file a second suit in respect of the

portion omitted or relinquished in the first suit. Because the suit is pending

before the trial court, it would not be appropriate for this court to express

any final opinion on the merits of the case.

7. The dismissal of the suit on the principles enshrined in Order 2

Rule 2 CPC is permissible only if the court comes to a definite conclusion

that the relief claimed in the subsequent suit is based on the same and

identical cause of action on which the previous suit was filed and the

plaintiffs had the opportunity to include the relief. in the previous suit. The

reliance placed by the learned counsel representing the appellant on the

judgment passed in Anil Kumar and others vs. Gulab Singh and otehrs,

2020(2) RCR(C) 134, is misplaced because in that particular case it was held

that bar under Order 2 Rule 2 CPC is not applicable in the facts of the

aforesaid case.

8. The learned counsel representing the appellants further tried to

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submit that the suit filed by the plaintiffs is without substance as some of

the co-sharers have sold the property while referring to the specific portion

which is in any case amount to sale of share only. He submits that these

observations of the trial court are in accordance with law.

9. The dismissal of the suit on a preliminary issue is governed as

per the procedure laid in the Code of Civil Procedure, 1908. At this stage, it

would not be appropriate for this Court to express any final opinion on the

merits of the case. The learned First Appellate Court has only permitted the

parties to lead evidence while directing the trial court to decide the suit

comprehensively, deciding the suit on merits.

10. Keeping in view the facts that the suit was instituted in March,

2008, it is considered appropriate to request the trial court to decide the suit

on a priority basis.

11. Needles to observe that the observations made by the First

Appellate Court or by this Court shall not be construed as the final

expression on the merits of the case and the trial court will decide the suit

independently in accordance with law.

12. Disposed of.

13. All the pending miscellaneous applications, if any, are also

disposed of.

July 05, 2023                                            (ANIL KSHETARPAL)
nt                                                             JUDGE


Whether speaking/reasoned                  :YES/NO
Whether reportable                         :YES/NO




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