The main legal point established in the judgment is that the applicability of provisions such as Order 2 Rule 2 CPC and Order 23 Rule 1 CPC should be carefully considered in the context of filing subsequent suits during the pendency of earlier suits, and courts should avoid dismissing suits on technical grounds without allowing the plaintiff to prove their case during trial.

VALMIKI J. MEHTA

1. At the commencement of hearing in this appeal, Counsel for the respondent No.1 states that respondent No.1 expired on 14.9.2009. The counsel who appears for other respondents was also the counsel for respondent No.1 and in terms of the duty fixed on the counsel under Order 22 Rule 10A of the Code of Civil Procedure, 1908 (CPC), the counsel did not inform the factum of death of respondent No.1. In any case, the controversy in this regard is immaterial inasmuch as Mani Ram Aggarwal was the husband of respondent No.2/defendant No.2 and therefore so far as the present appeal is concerned, the interest of the respondent No.1 is represented. I therefore accept the oral prayer of the appellant to treat the respondent No.2 as a legal heir of respondent No.1. Of course, this is subject to just exceptions and the appellant will subsequently in the subject suit bring on record all the legal heirs of the deceased respondent No.1.

2. This Regular First Appeal filed under Section 96 CPC impugns the judgment of the trial Court dated 18.11.2004 dismissing the suit on the preliminary issue by holding that the suit was barred under Order 2 Rule 2 CPC.

3. The facts of the case are that the appellant/plaintiff filed a suit for declaration, possession and injunction. This suit was originally filed in the original side of this Court and where after due to change of pecuniary jurisdiction, same was transferred to the District Court. The following preliminary issue was decided by the trial Court:-

“Whether the present suit is liable to be dismissed as not maintainable in view of the preliminary objection in para no.1 of the written statement of defendants no.1 & 2.”

4. The contention of the defendant Nos.1 and 2 before the trial Court was that the plaintiff had earlier filed a suit on 17.9.1997 for perpetual and mandatory injunction which was registered as suit No.198/1997 and the appellant/plaintiff during the pendency of the said civil suit instituted the present suit in the original side of this Court and therefore the present suit was not maintainable in view of the Order 2 Rule 2 CPC.

5. Trial Court has dismissed the suit by making the following observations:-

“13. Admittedly the present plaintiff had earlier filed a Civil Suit on 16.9.97 against the sole defendant Sh. Mani Ram Aggarwal who is defendant No.1 in the present suit seeking relief of permanent and mandatory injunction. In the said Civil Suit plaintiff had also filed an application dated 15.5.01 U/o 6 Rule 17 read with section 151 CPC for amendment of the plaint and an amended plaint was also filed but a perusal of the said judicial file reveals that the said amendment application was not allowed. In that case ultimately on plaintiffs own application dated 3.7.03 the suit was dismissed as withdrawn by Ld. trial Court.

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15. In the said earlier suit the plaintiff had claimed the following reliefs:

“i) Directing the defendant his agents, associates, representatives etc, to hand over the original documents namely Sale Deed dt. 5.10.59, GPA dt. 1.1.97, Deed of Will dt. 1.1.97 etc, to the plaintiff.

ii) Further, restraining the defendant his agents associates etc, from raising any construction in the premises in dispute bearing No.I 26,27 Laxmi Nagar, Delhi-110092 as shown red in the site plan attached herewith.

iii) Further, restraining the defendant, agents, representatives etc., from selling off, disposing off or otherwise part away with interest in the premises in dispute as shown in black and red in the site plan attached herewith.”

16. In the body of the plaint of the said earlier suit, the plaintiff claimed that his grandmother Smt. Manbhavti Devi who was the owner of the property in question, on 1.1.97 had executed a GPA and a Will duly registered in his favour, that in March 1997 he had requested the defendant to hand over the possession of the property in dispute because defendant was occupying the same unlawfully, illegal and