J U D G M E N T

CHANDRA DHARI SINGH, J.

1. The instant revision petition is preferred against the stay of the partition suit under Section 10 of the Civil Procedure Code, 1908 (‘CPC’ hereinafter) granted by the learned Trial Court, wherein the Court had stayed the suit for partition filed by the petitioner in New Delhi vide order dated 31st august, 2019.

FACTUAL MATRIX

2. The petitioner is the daughter of late Shri Brajbihari Prasad (‘the deceased’ hereinafter) who died intestate on 13th June, 1998. The C.R.P. 235/2019 Page 1 of 33 Signature Not Verified Digitally Signed By:SARIKA respondent no. 1 is the wife of the deceased and the other respondents are the children of the deceased.

3. The respondent no. 5, son of the deceased filed a suit for partition bearing no. 71/2018 (‘Bihar Suit’ hereinafter) on 28th February, 2018 in Bihar before the Motihari District Court for apportioning the properties of the estate located only in Bihar.

4. Subsequently, the petitioner, i.e., the plaintiff before the learned Court below, filed a suit for partition before the Tis Hazari Court, New Delhi, bearing Civil Suit No. 876/2018 (‘New Delhi’ Suit hereinafter) on 14th March, 2018 seeking partition of the immovable properties that are situated in New Delhi on the ground that the same were not included in the partition suit filed by the respondent no. 5 in Bihar.

5. Consequently, the respondent no. 5, i.e., the defendant before the learned Trial Court filed an application under Order VII Rule 11 of the CPC read with Section 10 of the CPC on the grounds that a suit for partition had already been filed before the Trial Court in Bihar and therefore, the suit filed by the petitioner is liable to be stayed and dismissed.

6. During the pendency of the said application, the matter was referred for mediation and was pending before the Delhi High Court Mediation Centre for a year and had more than 20 sittings. However, the parties could not arrive at an amicable settlement.

7. Consequently, vide the impugned order dated 31st August 2019, the learned Trial Court allowed the application qua Section 10 of the CPC, thereby, staying the operation of the above said on the ground that a former suit was pending before the Trial Court in Bihar.

C.R.P. 235/2019 Page 2 of 33 Signature Not Verified Digitally Signed By:SARIKA

8. Further, vide the same order the learned Trial Court dismissed the application qua the rejection of the plaint, since the applicability of the provisions under Order VII Rule 11 of the CPC does not exist in the Suit before it.

9. In the said impugned order, the learned Trial Court held that the entire property, be it in Delhi or in Bihar, constituted a single estate of the deceased which is the subject matter of partition and the same cannot be split so as to seek piecemeal partition and therefore, Section 10 application filed by the respondent was allowed.

10. Aggrieved by the same, the petitioner has preferred the present revision petition under Section 115 of the CPC, seeking the following reliefs:

“a) To summon the record of the Civil Suit being CS No.

876/2018. and/or b) Set-aside the Impugned Judgment/Order dated 31.08.2019 passed by the Ld District Sessions Court, Tis Hazari, in CS No. 876/2018, titled Lakshmi Kumari vs Rama Devi & Ors, and revive the stayed suit; and/or c) Direct the revived suit to be disposed of in a time bound manner.

d) Pass any other and/or further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”

SUBMISSIONS (On behalf of the petitioner)

11. The learned counsel appearing on behalf of the petitioner submitted that the application filed by the respondent no. 5 was per se not maintainable as the two provisions under which it was filed had two different outcomes and consequences i.e., the Order VII Rule 11 of the C.R.P. 235/2019 Page 3 of 33 Signature Not Verified Digitally Signed By:SARIKA CPC, having the outcome of the plaint being rejected for any of the grounds as envisaged there