The main legal point established in the judgment is that the relief sought in subsequently instituted suits must be directly and substantially the same as in the earlier suit for the application of Section 10 of the Code of Civil Procedure.

CM(M) 413/2017 & CM(M) 416/2017

1. The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India feeling aggrieved by the order dated 30th January, 2017 whereby the prayer made by the petitioner under Section 10 of Code of Civil Procedure for staying of the civil suit Nos. 535/06 (filed by mother) & 238/16/06 (filed by Ram Naresh Dubey, purchaser) has been declined by learned trial Court by two separate orders.

2. Both these petitions being CM(M) Nos.413/2017 & 416/2017 shall be disposed of by this common order as the ground for seeking stay of the two subsequent suits bearing Nos.535/06 & 238/16/06 is common i.e. the Civil Suit No.28/06 was filed by the petitioner Asha Malik prior to the institution of above two suits and the matter in issue in the subsequent suit is directly and substantially in issue in the previously instituted suits by her.

3. Before considering rival contentions, it is necessary to refer to the nature of the three suits and the relationship between the parties as well the basis of their respective claims in the three suits.

4. The parties are litigating claiming their respective title in respect of the properties bearing No.C-379A, Palan Extn., Sector-7, Dwarka, New Delhi and No.C-380A, Palan Extn., Sector-7, Dwarka, New Delhi. Both these properties were initially owned by Smt.Om Kumari @ Uma Singh, who is mother of petitioner Asha Malik. Lt.Col.N.P.Singh (Retd.) is father of petitioner Asha Malik.

Civil Suit No.28/2006

5. Civil Suit No.28/06 seeking the relief of declaration, mandatory injunction and permanent injunction has been filed on 24th January, 2006 by petitioner Asha Malik impleading her mother as defendant No.1 and her father as defendant No.2 by claiming herself to be the de facto owner of the suit property on the basis of an ‘oral gift’. In the civil suit filed by the petitioner, prayer has been made that she be declared as an absolute owner of the suit property as the same being gifted to her at the time of her marriage. She also sought declaration that the construction raised on the portion of the suit property was by her (Asha Malik) and the alleged document of transfer, if any by her parents in favour of any other person be declared as null and void. Decree of permanent injunction has also been prayed directing her parents not to create any third party interest and they be restrained from dispossessing her and her family members from the suit property. In addition a decree for mandatory injunction was also prayed directing the defendants not to deal with the suit property in any manner whatsoever as they have no right title or interest in respect of the suit property bearing No.C-379A & C-380A, Palam Extn., Sector-7, Dwarka, New Delhi-110045.

6. In Civil Suit No.28/06 an application under Order XXXIX Rules 1 and 2 CPC was also filed wherein learned ADJ, prima facie, on the basis of the plaintiff being in possession in respect of the suit property passed an injunction order restraining the defendants from creating any third party interest and also from dispossessing her from the property till the disposal of the suit. This civil suit is still at the stage of plaintiff’s evidence and the petitioner/plaintiff Asha Malik, who herself is an advocate, is enjoying possession, hence appears to be in no hurry to lead plaintiff’s evidence in a suit instituted by her in the year 2006.

Civil Suit No.535/2006

7. The second suit i.e. Civil Suit No.535/2006 was filed by Smt. Om Kumari @ Uma Singh – mother of the plaintiff Asha Malik on 16th September, 2016 seeking recovery of possession and damages against the petitioner Asha Malik and her husband pleading herself to be the owner and her married and daughter and her husband to be a licencee in the said property. After the lengthy trial, running over a period of eleven years, now this suit has reaching the stage of final arguments.

Civil Suit No.238/16/06

8. The third suit i.e. Civil Suit No.238/16/06 was filed