Disputed factual issues in a partition suit prevent legal questions from being decided as preliminary issues under Order XIV Rule 2(2) of the CPC.

JUDGMENT :

C. HARI SHANKAR, J.

1. This appeal assails order dated 18 December 2023, passed by a learned Single Judge of this Court in IA 15528/2023 in CS (OS) 496/2021, [Dr. (Mrs.) Meenakshi Dubey v Mr. Pankaj Aggarwal]. The application, which stands disposed of by the impugned order, was preferred by the appellant Pankaj Aggarwal, [“Pankaj” hereinafter] under Order XIV Rule 2(2)[(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates
to—
(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.]of the Code of Civil Procedure, 1908[“CPC” hereinafter], as the defendant in CS(OS) 496/2021, seeking that issues (i), (ii), (iv) and (v), as framed by the learned Single Judge on 2 May 2023, be treated as preliminary issues, as also under Section 10[10. Stay of suit. – No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.
Explanation.—The pendency of a suit in a foreign court does not preclude the Courts in [India] from trying a suit founded on the same cause of action.] of the CPC, praying that trial of CS (OS) 496/2021 be stayed pending disposal of CS 58565/2016, presently pending before the learned Trial Court. The learned Single Judge has rejected both prayers. Aggrieved thereby, the appellant Pankaj has filed the present appeal.

Rival Pleadings in the Suit

The Plaint

2. CS (OS) 496/2021, [“the suit” hereinafter] was filed by the respondent Meenakshi Dubey, [“Meenakshi” hereinafter], against the appellant Pankaj. Meenakshi and Pankaj are siblings. At the time of filing of CS (OS) 496/2021, Pankaj was occupying the ground floor and the first floor and Meenakshi was occupying the second floor of the suit property situated at A-11/25, Vasant Vihar, New Delhi – 110057.

3. The plaint, in the suit, asserted and averred thus:

(i) K.K. Aggarwal, the father of Pankaj and Meenakshi, died intestate on 25 May 1981. Pursuant to his death, an oral family settlement was executed among Pankaj, Meenakshi and their mother Indira Aggarwal, [“Indira” hereinafter], agreeing that Indira would own the ground floor, Pankaj would own the first floor and Meenakshi would own the second floor of the suit property. In order to avoid further disputes, this oral family settlement was reduced into writing by way of a written family settlement dated 21 July 1998. Even prior thereto, however, all parties acted on the basis of the oral family settlement dated 30 May 1981.

(ii) As the family settlement contained no dispensation with respect to the roof rights in the suit property, it was apparent that the roof rights were required to be divided one third among Indira,