The subsequent suit for possession was not barred under Order II Rule 2 CPC or Order XXIII Sub-rules 3 & 4 of Rule 1 CPC, as it was filed when the deceased plaintiff actually stood dispossessed during the pendency of the previous suit for injunction, giving rise to a fresh and independent cause of action.

P.K BHASIN, J.

This appeal is directed against the judgment dated 11.03.2005 passed by the learned Additional District Judge as the First Appellate Court whereby the judgment and decree dated 28.03.1998 passed by the Court of Civil Judge in a suit filed by one Shri Achraj Ram Kapur, who died during the pendency of this appeal and is now being represented by his legal heirs, against the appellant herein for a decree of possession and mesne profits in respect of the suit land had been affirmed.

2. This being a second appeal under Section 100 of the Code of Civil Procedure was admitted for hearing on the following two substantial questions of law which appeared to this Court to be arising in the matter for consideration and decision:-

I. Whether the jurisdiction of the Court below is ousted in view of Order 23 Rule 3 in respect of the suit claiming right to possession over the strip of land (hereinafter referred as “suit land”) which right was claimed in the previous suit and which was withdrawn/abandon without the permission of the Court/

II. Is not the suit barred under Order II Rule 2 of Code of Civil Procedure liberty to file fresh suit having been declined by the previous Court?

3. Before proceeding further to decide these questions of law the relevant facts leading to the filing of this appeal may be noticed. Late Shri Achraj Ram Kapur (hereinafter to be referred to as “the deceased plaintiff”) had filed a suit for possession and mesne profits in respect of a small piece of land on the back of shop no. 25 in Old Rajinder Nagar, New Delhi against the defendant and one other person also to whom the defendant had allegedly been put in possession thereof but that person was subsequently dropped by the deceased plaintiff. According to deceased plaintiff that shop was being used by him and the defendant as partners of a partnership firm from September, 1961 but later on the defendant started claiming that he was in fact a tenant thereof from the year 1961. The deceased plaintiff instead of fighting a legal battle to have a decision from the Court that the defendant was not his tenant decided to accept the defendant’s claim that he was a tenant of the shop under him.

4. The suit for possession etc. in respect of the open land at the backside of the tenanted shop, which land the deceased plaintiff claimed to have been allotted and delivered to him by the Ministry of Rehabilitation in the year 1965, had to be filed since the defendant had allegedly occupied that land unauthorisedly.

5. The defendant contested the suit by filing a written statement and claimed that the land in dispute was also a part of the tenancy in respect of shop no.25 since the year 1961 and he had not encroached upon that land. The suit was even otherwise claimed to be barred under Order II Rule 2 of the Code of Civil Procedure since prior to the filing of the present suit for possession etc. in April, 1985 the deceased plaintiff had also filed a suit for permanent injunction against the defendant in which also the subject matter was the same land in respect of which the present suit was filed and the reliefs which had been claimed in the subsequent suit for possession etc. could very well have been claimed in the earlier suit for injunction also but were not claimed.

6. The pleadings of the parties led to framing of the following issues for trial by the trial Court:-

(1) Whether the suit has been properly valued for the purpose of Court fees and jurisdiction? OPP (Amended vide order dt. 25.7.1991).

(2) Whether the suit is barred under the provisions of Sec. 50 of the Delhi Rent Control Act? OPD

(3) Whether the suit is bad for mis-joinder of the parties? OPD

(4) Whether the suit is barred by limitation? OPD

(5) Whether the suit is barred under the provisions of Order II Rule 2 CPC? OPD

(6) What is the extent of tenanted premises? OPP

(7) Whether the plaintiff is entitled for mesne profits, if so, at what rate? OPP

(8) Whether the plaintiff is entitled