"Smt. Kailasho And Others vs Rajesh
2022 Latest Caselaw 3818 UK

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      28.11.2022                        SA No.145 of 2022
                                        Hon'ble Alok Kumar Verma, J.

An Original Suit (No.32 of 2012 "Smt. Kailasho and Others vs. Rajesh and Others") was filed for perpetual prohibitory injunction. The said Original Suit was decreed. Against the said decree and judgment dated 03.08.2022, passed by the learned Trial Court, an Appeal (Civil Appeal No. 46 of 2022 "Surajmal and Another vs. Smt. Kailasho and Others"), was filed. The said Civil Appeal has been dismissed. Therefore, the present proposed Second Appeal.

Heard Mr. Nikhil Singhal, the learned counsel for the appellants and Mr. Mohd. Alauddin, the learned counsel for the respondent no.1/2.

The learned counsel appearing for the appellants submitted that admittedly, prior to filing of the Original Suit i.e. Original Suit No. 32 of 2012, Yaspal, the respondent no.1/2 herein- plaintiff no.1/2 had filed a civil suit for the same cause of action against the appellants. The number of the said Original Suit was 12 of 2012. The Original Suit No.12 of 2012 was filed with the same relief as prayed in the said Original Suit No.32 of 2012. The said fact had totally being ignored by both the Courts below.

Having heard the learned counsel for the parties, the present Second Appeal is admitted on the following substantial questions of law:-

(i) As to whether both the courts have erred in law while considering the impact of filing of present suit, during the pendency of earlier suit being O.S. No.12 of 2012, between the same parties in respect of the property involved herein?

(ii) As to whether the present suit is maintainable, without disclosing the factum of pendency of earlier suit by one of the plaintiff against the defendant in respect of same subject matter and same relief and the same is an abuse/misuse of process of law?

The learned counsel for the respondent no.1/2-plaintiff submitted that the respondent-plaintiff is not raising any construction on the suit property. He requested three weeks' time to file objection(s) to the Stay Application.

Issue notice to the remaining respondents.

Steps to be taken within a week. List this case on 21.02.2023.

(Alok Kumar Verma, J.) 28.11.2022

Neha