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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
ARUN MONGA, J.
Hari Singh S/o Late Shri Raghunath Singh – Appellant
Versus
Ajay Singh S/o Late Shri Amar Singh – Respondent
S.B. Civil Writ Petition No. 6806 of 2023, S.B. Civil Writ Petition No. 6843 of 2023
Decided on : 29-02-2024
Order II Rule 2 CPC - Dispute over immovable suit property - Civil Suit No.58/2012 - Summary of Acts and Sections: Order II Rule 2 CPC, Order VII Rule 11 CPC, Section 10 CPC, Section 151 CPC - The court discussed the application of Order II Rule 2 CPC and Section 10 CPC, emphasizing the requirement of similarity of relief and identity of matter in issue in both suits. The court also highlighted the limited scope of interference under Section 115 of CPC and the principle of res judicata in dismissing the petitioner's applications.
Fact of the Case:
Dispute over immovable suit property at Jalam Vilas, Paota, Jodhpur. Plaintiff filed a subsequent suit for exclusive possession, damages, and permanent injunction based on a will executed by Smt. Jawahar Kanwar. Defendant filed applications under Order II Rule 2 CPC and Section 10 CPC seeking dismissal and stay of the subsequent suit.
Finding of the Court:
The court dismissed the petitioner's applications under Order II Rule 2 CPC and Section 10 CPC, emphasizing the lack of intentional relinquishment or omission by the plaintiff in the previous suit and the absence of identity of matter in issue between the two suits. The court also held that the petitioner's writ petitions were not maintainable under Section 115 of CPC and were dismissed on the principle of res judicata.
Issues: Application of Order II Rule 2 CPC, Application of Section 10 CPC, Maintainability of Writ Petitions under Section 115 of CPC
Ratio Decidendi: The court emphasized the requirement of intentional relinquishment or omission by the plaintiff in the previous suit for the application of Order II Rule 2 CPC. It also highlighted the need for identity of matter in issue in both suits for the application of Section 10 CPC. The court's decision was influenced by the limited scope of interference under Section 115 of CPC and the principle of res judicata.
Final Decision: The court dismissed the petitioner's applications under Order II Rule 2 CPC and Section 10 CPC, as well as the writ petitions, allowing the trial to proceed further in accordance with the law.
ORDER :
1. Grievance of the defendant No. 1 (petitioner herein) arises out of an order dated 20.04.2023 (Annex.11) passed by the learned Additional District Judge-06, Jodhpur (trial Court) in Civil Suit No.58/2012 (Ajay Singh Vs. Hari Singh & Ors.), vide which learned trial court dismissed petitioner’s two applications i.e. one under Order II Rule 2 CPC r/w Order VII Rule 11 CPC for dismissal of the suit and the second under Section 10 CPC r/w Section 151 CPC for staying the further proceedings of said subsequent suit filed by the plaintiff.
2. Relevant facts, shorn of unnecessary details, are as under:
2.1. Dispute between parties pertains to the immovable suit property situated at Jalam Vilas, Paota, Jodhpur. It is stated that the suit property belonged to Late Maharaja Shri Guman Singh. In the year 1971 a Civil Suit for partition qua suit property was filed, which was disposed of vide Judgment & Decree dated 20.04.1976. According to the said decree, an area measuring 22,808 Sq.Mtrs. & built up structure was given to Smt. Jawahar Kanwar W/o Maharaja Shri Guman Singh.
2.2. Thereafter, on 19.09.1989 Smt. Jawahar Kanwar divided the said property i.e. the area measuring 22,808 Sq.Mtrs. & built up structure in three equal shares by three separate Wills i.e. first share in favour of Late Raj Kumar Shri Amar Singh (father of the plaintiff), second share in favour of petitioner-Defendant No.1 – Hari Singh & Respondent-Defendant No.2 – Rajveer Singh and third share in favour of Smt. Gattu W/o Shri Niwas Joshi.
2.3. During life time of Smt. Jawahar Kanwar, the Respondent No.1-plaintiff was holder of joint possession along with Smt. Jawahar Kanwar untill she died on 23.06.1994.
2.4. However, after death of Smt. Jawahar Kanwar, the Petitioner-Defendant no.1 claiming himself as her only surviving successor, filed an application before UIT, Jodhpur for sub-division of the property.
2.5. The Respondent No.1-plaintiff Ajay Singh had to then file a suit on 21.01.1997 for permanent injunction seeking to restrain the defendants (including petitioner herein) from selling and alienating the property of late Smt. Jawahar Kanwar. The plaintiff also sought a direction to the U.I.T., Jodhpur not to permit any sub-division without prior notice and without consent of the plaintiff. The plaintiff further sought relief that the defendants may be restrained from dividing the suit property into plots and also be restrained from raising any construction and to maintain status quo. Injunction was also sought against the defendants to restrain them from interfering in the use and occupation of the plaintiff over the suit property.
2.6. The father (Amar Singh) of the Respondent No.1-plaintiff expired on 14.01.1999. The Respondent No.1-plaintiff is the only successor of late Shri Amar Singh.
2.7. During pendency of the said earlier suit, relying on Will dated 19.09.1989 executed by Late Smt. Jawahar Kanwar, the plaintiff filed another subsequent suit in the year 2002 (Civil Suit No.39/02, renumbered as Civil Suit No.41/2007 and then No.58/2012) for getting exclusive possession of same suit property, grant of damages and permanent injunction. Plaint was later amended pursuant to an order dated 22.04.2015.
3. The Defendant No.1 (petitioner herein) filed written statement contesting the suit. He pleaded, inter alia, that the will dated 19.09.1989 of Smt. Jawahar Kanwar set up by the plaintiff was false and fabricated. That the Respondent No.1-plaintiff - Ajay Singh had already filed a suit with regard to property in question. If he wants to raise any other claim, he can amend the previous suit. However, he has no right to file a new suit for the same property and against same parties.
3.1. The Defendant no.2, Rajveer Singh also filed his written statement and denied the claim of the plaintiff. The Defendant no.3 did not appear in the trial proceeding. Learned trial court proceeded ex-parte against him.
3.2. Learned trial court, on the basis of pleadings, framed the issues fo
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