DROPTI DEVI vs RAM PYARI & ORS.

2024-02-26 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 22nd February, 2024
Pronounced on:26th February, 2024

+ CS(OS) 348/2018

DROPTI DEVI ….. Plaintiff
Through: Mr. Indu Bhusan Vimal and Mr. Harjeet Singh Sidhu, Advocates.

versus

RAM PYARI & ORS. ….. Defendants
Through: Mr. R.S.Rathi, Ms. Kusum and Ms. Niharika Dudeja, Advocates for D1 to D4.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
O R D E R
% 05.02.2024

I.A. 12859/2018 (u/O VII Rule 11 of CPC for rejection of the Plaint) and I.A. 13060/2018 (u/Order II Rule 2 of CPC filed by defendant dismissal of the present Suit.)

1. The application bearing No. I.A. 12859/2018 has been filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC) by the applicants/defendants seeking rejection of the Plaint. By way of application bearing No. I.A. 13060/2018, filed under Order II Rule 2 CPC, the applicants/defendant Nos. 1 to 4 seeks dismissal of the suit.
2. It is submitted in the IA 12859/2018, application under Order VII Rule 11 CPC, that the plaintiff had filed the Civil Suit bearing No. CS(OS) 3929/1992 seeking partition of the suit property, but the same was withdrawn by the non-applicant/plaintiff on 24.03.1994 without liberty to file a fresh Suit. It was stated in the said suit that the cause of action arose in August, 1992 with regard to the suit property. The non-applicant/plaintiff filed a consequent Civil Suit bearing No. 2607/2013 on the basis of identical pleadings which was dismissed vide Order dated 05.10.2015 on the ground of being barred by limitation against which no Appeal was preferred by the non-applicant/plaintiff and the said Order has assumed finality. The present Suit seeking same relief is, therefore, barred.
3. The plaintiff fraudulently and frivolously took a plea that there was a family settlement between the plaintiff and the answering defendants and also sent a legal notice to this effect. The plaintiff had also filed the Contempt Petition No. 404/2011 against the defendant Nos. 1 to 4 in the said suit which was dismissed vide Order dated 13.05.2013.
4. It is, therefore, submitted that the Suit of the plaintiff does not disclose any cause of action and the same is barred by limitation and the Suit is liable to be rejected. Learned counsel for the defendants has submitted that the two Suits filed in the year 1992 and again in 2013 already stand dismissed. The present Suit is, therefore, also not maintainable.
5. There is further submitted that already a Probate Petition No. TEST.CAS. 43/2014 in respect of the registered Will dated 03.04.1980 of Late Shri Bhudar Lal, pending adjudication at the stage of the evidence of the parties. It is, therefore, submitted that the present Suit is liable to be rejected.
6. It is submitted in the application under Order II Rule 2 CPC, that the non-applicant/plaintiff had filed the Suit No. CS(OS) 3929/1992 for partition of the suit property which was dismissed as withdrawn vide Order dated 24.03.1994 in view of the Family Settlement dated 05.12.1993. Thereafter, the Contempt Petition was filed as stated above, which was dismissed vide Order dated 13.05.2013 by observing that since the Suit had been withdrawn, there was no ground to initiate the contempt proceedings. Thereafter, the Suit No. CS(OS) 2607/2013 for Mandatory Injunction for issuing directions to the legal heirs of Late Shri Puran Chand to implement the Family Settlement dated 05.12.1993 and to give her 1/3rd share was filed, which was also dismissed by this Court vide Order dated 05.10.2015 by observing that earlier Suit had been dismissed as withdrawn without seeking any permission to file a fresh Suit on the same cause of action and the second Suit was vexatious and, therefore, rejected.
7. Thus, it is submitted that the non-applicant/plaintiff has preferred the present Suit for partition on the basis of identical pleadings by adding new reliefs which is barred by Order II and Rule 2 of the Code of Civil Procedure, 1908. Therefore, the prayer is made that the present Suit be dismissed.
8. Despite opportunities being given, the plaintiff has failed to file any Reply to the present Applications and her right to file same was closed vide Order dated 29.08.2023.
9. During the course of arguments, the learned counsel for the defendants relied on the case of M. Nagabhushan v. State of Karnataka and Ors., (2011) 3 SCC 408; Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Through Lrs. and Ors. (2020) 7 SCC 366; Colonel Shravan Kumar Jaipuriyar v. Krishna Nandan Singh and Anr. (2020) 16 SCC 594; Kaushik Cooperative Building Society v. N Parvathamma and others 2017 13 SCC 138; Smt. Patasibal and Ors v. Ratanlal JT 1990 (3) SCC 68; Raghwendra Sharan Singh v. Ram Prasanna Singh Through Lrs. (2020) 16 SCC 601; Sree Surya Developers and Promoters v. N. Sailesh Prasad and Ors. (2022) 5 SCC 736; Frost International Limited v. Milan Developers and Builders and Private Ltd. and Anr. (2022) 8 SCC 633; N.V. Srinivasa Murthy and Ors. v. Mariyamma by Proposed Lrs. and Ors. (2005) 5 SCC 548; Church of Christ Charitable Trust v. Ponniamman Educational Trust (2012) 8 SCC 706 to aruge that the suit was liable to be rejected under Order VII Rule 11 CPC.
10. Reliance was also placed on State Bank of India v. Gracure Pharmaceuticals Ltd. (2014) 3 SCC 595; Coffee Board v. Ramesh Exports Pvt Ltd. (2014) 6 SCC 424; Venkataraja and Ors versus Videhyane Doureradjaperumal and Ors. (2014) 14 SCC 502; Raptakos Brett and Co. Ltd v. Ganesh Property (2017) 10 SCC 643; Jayantilal Chimanlal Patel v. Vadilal Purushottamdas Patel (2017) 13 SCC 409; Virgo Industries (Eng) Pvt. Ltd. v. Venturetech Solutions Pvt. Ltd (2013) 1 SCC 625; Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit v. Ramesh Chandrer and Ors (2010) 14 SCC 596 to assert that a subsequent suit based on identical pleadings were barred under Order II Rule 2 CPC.
11. The learned counsel for the plaintiff relied on the case of Prasanta Kumar Sahoo & Ors. v. Charulata Sahu & Ors. in Civil Appeal No. 2913-2915 of 2018 decided on 29.03.2023 by the Apex Court and on Attar Singh v. Mohinder Singh & Anr. in RFA No. 742/2019 decided on 06.04.2023 by the Delhi High Court.
12. Submissions heard.
13. Admittedly, Late Shri Bhudar Lal was the owner of the Suit Property No. 49-B, Block-M, Malviya Nagar, New Delhi which was a plot of 200 sq. yards on which a house had been constructed. On the demise of Late Shri Bhudar Lal, his two sons, Mr. Puran Chand and Mr. Gopal Kishan and two daughters, Ms. Dropti Devi and Ms. Kalawati became the owners of 1/4th share each in the suit property.
14. Ms. Dropti Devi, who is the non-applicant/plaintiff herein in the present Suit, filed the Suit No. CS(OS) 3929/1992 before this Court seeking partition of the suit property by metes and bounds. During the pendency of the said Suit, the parties had arrived at a Family Settlement dated 05.12.1993. The relevant part of the Family Settlement dated 05.12.1993 pertaining to Mr. Puran Chand and the plaintiff herein is as under: –
1. That the FIRST party shall be the absolute owner of the portion M/49B (with the old tenement built on 100 Sq. Yds. of land) Malviya Nagar, New Delhi. Whenever the FIRST party shall be in a position to raise construction either for his own use or for the use of his family members or in the event of his selling the same or a part thereof, he shall give due share to the party No. 3 and 4. The SECOND party shall have no claim on the portion of the FIRST party, referred to herein as Property No. M/49B
15. Essentially, it was stated that Mr. Gopal Kishan and Mr. Puran Chand had divided the suit property into two portions of 100 sq. yards each. Mr. Gopal Kishan sold his portion of 100 sq. yards and gave the money to the sisters and Mr. Puran Chand in lieu of their share in his portion of the suit property. Mr. Puran Chand, however, continued to be in possession of his 100 sq. yards of the suit property and it was pursuant to this aforesaid Family Settlement, the plaintiff made a statement in the Court that she did not want to prosecute the Suit No. CS(OS) 3929/1993 in the light of the Family Settlement and the said Suit was accordingly dismissed as withdrawn.
16. Subsequently, the plaintiff gave a Notice dated 05.10.2005 to the legal heirs of Mr. Puran Chand asserting that they have raised the permanent construction on the property in violation of the terms of the Settlement and therefore, the plaintiff is entitled to her 1/3rd share in the suit property in terms of the Family Settlement dated 05.12.1993. The legal heir of Shri Puran Chand gave a Reply dated 21.11.2005 submitting that they had only raised a temporary structure which they undertook to remove.
17. The Contempt Petition No. CONT.CAS(C) 404/2011 was filed alleging that the legal heirs of Late Shri Puran Chand had wilfully disobeyed the Order dated 24.03.1994. However, the said Contempt Petition was dismissed vide Order dated 13.05.2013 by observing that since the Suit had been withdrawn, there was no ground to initiate the contempt proceedings.
18. Thereafter, the Suit No. CS(OS) 2607/2013 for Mandatory Injunction for issuing directions to the legal heirs of Late Shri Puran Chand to implement the Family Settlement dated 05.12.1993 and to give her 1/3rd share, was filed. However, the said Suit was dismissed under Order VII Rule 11 of the Code of Civil Procedure, 1908 by this Court vide Order dated 05.10.2015 by observing that earlier Suit had been dismissed as withdrawn without seeking any permission to file a fresh Suit on the same cause of action and the second Suit was vexatious and, therefore, rejected.
19. Thereafter, the present Suit has been filed on behalf of the plaintiff claiming partition of the suit property by metes and bounds and to be handed over 1/3rd share in the suit property.
20. The question is whether the present suit is barred in the light of earlier litigations.
21. Pertinently, the Family Settlement dated 05.12.1993 clearly stipulated that in case the construction was raised or the suit property was sold, the plaintiff shall be entitled to claim her 1/3rd share in the suit property.
22. Significantly, in the present Suit, it is claimed that the construction has been raised by the applicants/defendants in 2005 and 2011 implying thereby that no further cause of action has arisen after 2011. The same relief as claimed in the present Suit though couched in the language of Mandatory Injunction, was filed vide CS(OS) 2607/2013.
23. The comparison of the two Suits shows that they are both based on identical facts, except that in the Suit No. CS(OS) 2607/2013, the relief was claimed by way of Mandatory Injunction. In the present Suit, the relief as claimed in the shape of partition and mesne profits. There is absolutely no cause of action disclosed in the present Suit on the identical pleadings. The earlier Suit No. CS(OS) 2607/2013 has already been rejected.
24. In fact, the conduct of the plaintiff is vexatious and unwarranted in instituting the one Suit after other on the non-existent claims and cause of action.
25. For the foregoing discussion, both the applications are allowed.
26. The present Suit of the non-applicant/plaintiff is hereby rejected under Order VII Rule 11, CPC and under Order II Rule 2, CPC.
27. The costs of Rs. 50,000/- are hereby imposed on the non-applicant/plaintiff to be paid to the applicants/defendants.
28. Accordingly, the present applications are disposed of.
CS(OS) 348/2018 & I.As. 5238/2019, 9376/2018
29. In view of the Orders passed in I.A. 12859/2018 under Order VII Rule 11 of the Code of Civil Procedure, 1908 and I.A. 13060/2018 under Order II Rule 2 of the Code of Civil Procedure, 1908, the present Suit is hereby rejected along with pending applications.
30. The next date of hearing i.e. 08.04.2024 before the Joint Registrar for completion of pleadings stands cancelled.

NEENA BANSAL KRISHNA, J
FEBRUARY 26, 2024
S.Sharma

CS(OS) 348/2018 Page 1 of 8