MANMOHAN, J.

I.A. 4780/2014

1. Present application being I.A. 4780/2014 has been filed under Order 7 Rule 11 CPC on behalf of the defendants No.1, 2 and 5 for rejection of the plaint filed by the minor plaintiffs through their mother.

2. It is pertinent to mention that the present suit has been filed seeking partition, rendition of accounts and permanent injunction against their grandparents i.e. defendants No.1 and 5 as well as their father (defendant No.4) and aunt and uncle i.e. defendants No.2 and 3.

3. The learned Predecessor of this Court vide ex parte ad interim order dated 02nd December, 2013, directed the defendants to maintain status quo with regard to suit property bearing No.C-117, East of Kailash, New Delhi-110065 as regards possession and title. On 27th September, 2018, this Court clarified that it had not granted any stay of proceedings in Appeal No.30/2013 i.e. Kuldeep Singh Gulati and Anr. Vs. Sandeep Gulati & Anr. pending under the Maintenance and Welfare of Parents and Senior Citizens Act, 2017 before the Divisional Commissioner and the said forum was free to proceed with the case, in the event there was no stay order passed by any other Court.

ARGUMENTS ON BEHALF OF THE DEFENDANTS NO.1, 2 AND 5

4. At the outset, Mr. V.K. Bali, learned senior counsel for defendant No.1, 2 and 5-applicants, submitted that the present suit was not maintainable as an identical suit of the father of plaintiffs being CS(OS) 886/2013 with the same averments and seeking the same relief, after hearing arguments on the very first date of hearing, had been dismissed as withdrawn with liberty to file other proceedings that may be permissible. The order dated 13th May, 2013 is reproduced hereinbelow :-

“Present suit has been filed for partition, rendition of accounts and permanent injunction.

As this Court after hearing some arguments was of the view that present suit for partition was not maintainable, Mr. Bhupesh Narula, learned counsel for the plaintiff wishes to withdraw the present suit with liberty to avail other appropriate remedies that may be available to the plaintiff in accordance with law.

With the aforesaid liberty, present suit and applications are dismissed as withdrawn.”

5. Mr. Bali stated that since the plaintiffs i.e. children of the defendant No. 4 derive their title from their father, if defendant No. 4 can file proceedings other than the partition suit, then his children who derive title from him, cannot file a partition suit.

6. He pointed out that the father of the plaintiffs i.e. defendant No.4 (Mr. Sandeep Gulati) had been involved in a murder case at the age of sixteen and the present suit had been filed by him through his two minor children from the third wife and that too without seeking any claim/share for his son from the first wife.

7. Learned senior counsel for defendants No.1, 2 and 5 stated that in 1947, late Sh. R.P. Gulati had migrated from Pakistan to India with his family members leaving behind all their belongings. He pointed out that while migrating to India all the family members were searched and they were not allowed to carry anything. He emphasized that late Sh. R.P. Gulati had arrived in India along with his family members with only the clothes which they were wearing, and thus it was very hard for him even to meet the basic needs of the family and due to the same, his eldest son Sh. D.L. Gulati, who was sixteen years of age at that time started working.

8. Mr. Bali stated that at the time of death of Sh. R.P. Gulati in 1971, he had no business and he was fully dependent upon his children, and therefore, no property or business was left by late Sh. R.P. Gulati. He contended that the question of inheriting any family business or coparcenary business did not arise. He showed an extract of the passbook of Mr. R.P. Gulati, which showed a balance of just Rs.4.15/- in August, 1970. He also referred to the Central Govt. Health Scheme Card of Sh. R.L. Gulati, son of late Sh. R.P. Gulati to show that he