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VANDANA SHARMA vs AMAN MALLICK

Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 29.08.2024
Pronounced on:14.11.2024

+ CS(OS) 267/2019 & I.A. 7368/2019
VANDANA SHARMA
…..Plaintiff
Through: Mr. Sanjeev Goyal, Advocate

versus

AMAN MALLICK
…..Defendant
Through: Mr. Sanjay Rathi, Ms.Akanksha Solanki & Mr. Deepak Khatri, Advocates

CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA
J U D G M E N T
I.A. 18629/2022
1. This application has been filed by the plaintiff under Order XII Rule 6 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) praying for a decree to be passed in her favour based on the purported admissions of the defendant, estoppel, acquiescence, waiver, and abandonment of claim by the defendant in respect of the alleged Will dated 19th June, 2018 left behind by the mother of the parties, Late Smt. Kamla Mallick, by withdrawing the petition seeking grant of probate of said Will.
Claim of the Plaintiff in the Plaint:
2. The present suit has been filed by the plaintiff inter alia praying for a decree of partition of the property being plot bearing no. D-125, Saket, New Delhi, 110017, admeasuring 250 Sq. Yards; and plot no. B-887, Greenfields Colony, Faridabad, Haryana, admeasuring 225.55 Sq. Yards (hereinafter collectively called ‘suit properties’).
3. The plaintiff asserts that the father of the parties, namely Sh. Gyan Chand Mallick, unfortunately passed away intestate on 25th July, 1998, leaving behind the plaintiff, the defendant, and their mother, Late Smt. Kamla Mallick, as his legal heirs. The property at Saket was mutated in favour of Late Smt. Kamla Mallick vide letter dated 21st January, 2014 issued by the DDA, after the plaintiff and the defendant relinquished their share in favour of their mother, Late Smt. Kamla Mallick. Later, the said property was converted into freehold, and Conveyance Deed dated 29th May, 2014 was executed by the DDA in favour of the mother of the parties.
4. As far as the property at Faridabad is concerned, the plaintiff asserts that the said property was originally owned by the plaintiff, defendant, and Smt. Shanti Devi, the grandmother of the parties, in equal share. On the death of Smt. Shanti Devi on 24th February, 1994, Late Sh. Gyan Chand Mallick, being her legal heir, succeeded to her 1/3rd share in the said plot. As Sh. Gyan Chand Mallick died intestate on 25th July, 1998, his 1/3rd share was succeeded by the plaintiff, the defendant, and the mother of the parties, thereby making the share of the three as under:
Smt. Kamla Mallick- 11.12%
Sh. Aman Mallick- 44.44%
Smt. Vandana Sharma- 44.44%

5. It is further claimed in the plaint that in May, 2014, the defendant approached the plaintiff stating that the mother of the parties is unhappy with him and he has an apprehension that she may bequeath the entire suit property to the plaintiff. As the plaintiff did not have any desire to take the share of her brother, the parties, that is the plaintiff and the defendant, entered into a Memorandum of Understanding dated 05th May, 2014, whereby it was stipulated that in case the mother of the parties executes any Will with respect to the suit properties, irrespective of the same, both the plaintiff and the defendant shall own the suit properties in equal share after the demise of their mother.
6. The plaintiff asserts that Late Smt. Kamla Mallick executed a registered Will dated 27th May, 2014 bequeathing entire suit properties to the plaintiff herein.
7. The plaintiff further asserts that in June, 2018, the mother of the parties complained to the plaintiff that the defendant had taken her to the office of the Sub Registrar of Documents and fraudulently got some documents signed from her without showing the contents thereof to her. On enquiry, the plaintiff learnt that the defendant had, without the knowledge and consent of late Smt. Kamla Mallick, dishonestly got executed a Registered Will dated 19th June, 2018 from her, bequeathing the suit properties to the defendant. Immediately on coming to know of the same, Late Smt. Kamla Mallick revoked the said Will dated 19th June, 2018 by way of a Registered Will dated 27th July, 2018, bequeathing the suit properties equally in favour of the plaintiff and the defendant. The plaintiff asserts that the defendant, however, started pressurizing and threatening Late Smt. Kamla Mallick, and taking advantage of her old age, made her sign certain blank papers and took her to the office of Sub-Registrar to execute the same.
8. As Late Smt. Kamla Mallick was already under an apprehension that the defendant may have again got another Will prepared and executed from her bequeathing the properties in his favour, she executed another Will dated 22nd November, 2018, revoking all previous Wills, including the Will dated 19th June, 2018, and again bequeathing the suit properties equally between the parties, that is the plaintiff and the defendant. The said Will was duly registered in the office of Sub Registrar of Documents vide registration no. 1440 in book no. 3 in Volume no. 178 on pages 75 to 78.
9. The plaintiff asserts that in terms of the said Will, the plaintiff and the defendant being equal owners of the suit properties upon the death of Smt. Kamla Mallick, are entitled to a declaration of 50% share in the suit property and the said property is liable to be partitioned equally between them.
Defence of the Defendant:
10. The defendant filed his written statement asserting therein that Will(s) dated 27th July, 2018 and 22nd November, 2018 alleged to have been executed by the mother of the parties, are forged and fabricated. He asserts that Late Smt. Kamla Mallick was not of sound and disposing mind at the time of the execution of the said Will(s). He further asserts that he had become the absolute owner of the property at Saket by virtue of the Will dated 19th June, 2018, which was the last and final Will of the mother of the parties and had never been revoked.
Submissions of the learned counsel for the Plaintiff:
11. The plaintiff has filed the present application under Order XII Rule 6 of the CPC, contending therein that the defendant cannot now be allowed to rely on the Will dated 19th June, 2018, to exclude the right of the plaintiff in the property at Saket. The learned counsel for the plaintiff submits that the defendant filed a petition under Section 278 of the Indian Succession Act, being PC No. 30/2019, before the learned District Judge, Saket Court, to seek probate of the Will dated 19th June, 2018. The plaintiff filed her objections against the grant of the probate. The plaintiff also filed an application seeking transfer of the said Probate Petition to this court, being TR.P.(C) No. 19/2020 titled Vandana Sharma v. Aman Mallick, on which this Court issued notice to the defendant vide Order dated 7th February, 2020. On receipt of the said notice, the defendant filed an application under Order XXIII Rule 1 of the CPC, seeking withdrawal of the Probate Petition. Though the application was objected to by the plaintiff, the learned District Judge, vide Order dated 16th July, 2022, allowed the defendant to withdraw his Probate Petition unconditionally.
12. The learned counsel for the plaintiff submits that once the Probate Petition is withdrawn unconditionally, the defendant cannot be allowed to urge the Will dated 19th June, 2018 as a defence to the present suit. He submits that it would make no difference in law as in Delhi, probate is not necessary to be obtained. Once the Probate Petition is filed and then withdrawn, the Will is presumed to have no effect and cannot be proved or relied upon in other proceedings. In support of his submission, he places reliance on the judgment of the Supreme Court in Sarguja Transport Service v. State Transport Appellate Tribunal, M.P., Gwalior & Ors., (1987) 1 SCC 5; and of this Court in M/s Usha Sales Ltd. & Ors. v. Smt. Aruna Gupta & Anr. 1982 SCC OnLine Del 236 and in Jiten Wadhawan v. M.N. Wadhawan {CM(M) 1141/2008, dated 30.09.2008}. He also places reliance on the judgment of the Bombay High Court in Chetan Calvin Nazareth v. Lena John D Souza, 2021 SCC OnLine Bom 5337.
13. The learned counsel for the plaintiff submits that once the Will dated 19th June, 2018 is deemed to have not been proved, the plaintiff, whether by virtue of Will dated 22nd November, 2018 or even otherwise presuming that Late Smt. Kamla Mallick had died intestate, would be entitled to 50% share in the suit property. He submits that therefore, the present case is one where a decree on admission deserves to be passed and the parties should not be made to undergo the process of a long arduous trial.
Submissions of the learned counsel for the Defendant:
14. On the other hand, the learned counsel for the defendant submits that the withdrawal of the Probate Petition would not act as an estoppel against the defendant from relying upon the Will dated 19th June, 2018 in the present suit. He submits that the provisions of Order XXIII Rule 1(4) of the CPC do not prohibit a party from relying upon the same set of facts in defence to a suit filed by another party, in spite of withdrawal of a suit filed by such party. He places reliance on the judgement of the Supreme Court in Vallabh Das v. Dr. Madan Lal & Ors., 1970(1) SCC 761 in support of the said submission.
15. The learned counsel for the defendant further submits that for an application under Order XII Rule 6 of the CPC, the admission has to be clear and unequivocal and the present is not such a case. The defendant has raised defence of a Will and it is for the plaintiff to prove that the said Will was revoked by the subsequent Will of Late Smt. Kamla Mallick or otherwise was not genuine. He submits that the subject matter of the Probate Petition and of this suit is different and, therefore, the provision of Order XXIII Rule 1 of CPC would have no application. In support of his submission, he places reliance on judgement of the High Court of Kerala in Thomas P. Jacob v. M.G. Varghese & Ors., 1987 SCC OnLine Ker 3, and the judgment of the High Court of Patna in Kashi Nath Singh v. Dulhin Gulzari Kuer, 1941 SCC OnLine Pat 285.
16. He submits that even otherwise, the provisions of Order XXIII Rule 1 of CPC will have no application as the present suit has been filed prior to the withdrawal of the Probate Petition by the defendant. He submits that in the application filed by the defendant seeking withdrawal of the Probate Petition, the defendant had clearly stated that the question of genuineness of the Will dated 19th June, 2018 will have to be determined in the present suit. He places reliance on the judgment of the High Court of Punjab and Haryana in Girdhari Lal Bansal v. The Chairman, Bhakra Beas Management Board, Chandigarh & Ors., 1985 SCC OnLine P&H 49, and on the judgment of the High Court of Rajasthan in Hari Ram v. Lichmaniya & Ors., 2003 SCC OnLine Raj 31, in support of his submission.
17. He submits that the principles of estoppel, acquiescence or waiver are also not applicable in the present case.
Analysis and Findings:
18. I have considered the submissions made by the learned counsel for the parties. Order XII Rule 6 of the CPC reads as under:-
“6. Judgment on admissions.—(1) Where admissions of fact have been made either in the pleading or otherwise; whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question-between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.”

19. The Supreme Court in Karan Kapoor v. Madhuri Kumar, 2022 SCC OnLine SC 791, explaining the requirements of the above provision has held that a judgment on admission relying upon the above provision can be passed only where the admission is clear, unequivocal and impresses the Court to the opinion that the trial would be futile and the parties are, in fact, not required to undergo the rigours of a detailed trial due to any admission made by the other party. I may quote from the judgment as under:-
“23. Order 12 Rule 6 confers discretionary power to a court who “may” at any stage of the suit or suits on the application of any party or in its own motion and without waiting for determination of any other question between the parties makes such order or gives such judgment as it may think fit having regard to such admission.
24. Thus, legislative intent is clear by using the word “may” and “as it may think fit” to the nature of admission. The said power is discretionary which should be only exercised when specific, clear and categorical admission of facts and documents are on record, otherwise the court can refuse to invoke the power of Order 12 Rule 6. The said provision has been brought with intent that if admission of facts raised by one side is admitted by the other, and the court is satisfied to the nature of admission, then the parties are not compelled for full-fledged trial and the judgment and order can be directed without taking any evidence. Therefore, to save the time and money of the court and respective parties, the said provision has been brought in the statute. As per above discussion, it is clear that to pass a judgment on admission, the court if thinks fit may pass an order at any stage of the suit. In case the judgment is pronounced by the court a decree be drawn accordingly and parties to the case is not required to go for trial.”

20. Judged on the above parameters, it has to be seen whether the plaintiff has been able to make out a case where she is entitled to have the suit decreed in her favour without her leading any further evidence in the suit, while denying the defendant an opportunity to lead his evidence.
21. As would be evident from the above, the premise of the present application is that the defendant, having withdrawn the Probate Petition filed by him, cannot set up the Will dated 19.06.2018 allegedly executed by the mother of the parties, as a defence in the suit. The plaintiff claims that if the defendant is denied the opportunity of setting up the said Will as a defence, the defendant has, in fact, no defence to offer to the suit.
22. In consideration of the above plea, it would first be relevant to note that in Delhi, applying for probate, in terms of Section 57 read with Section 213(2) of the Indian Succession Act, 1925, is not mandatory for purposes of acting on a Will. Reference in this regard may be made to the judgment of the Supreme Court in Kanta Yadav v. Om Prakash Yadav & Ors., 2019 SCC OnLine SC 920, and of this Court in Kusum Taneja v. Manik Taneja & Ors., 2024 SCC OnLine Del 6857, Tani Sandhu Bhargava v. Shumita Didi Sandhu, 2024 SCC OnLine Del 5195, and Rakesh Kumar Ghei & Anr. v. State & Ors., 2024 SCC OnLine Del 6137.
23. In view of the above position in law, it is now to be determined as to even though there was no necessity for the defendant to have applied for probate of the Will dated 19.06.2018, having still applied for the same and having withdrawn that petition, whether the defendant can now rely upon the said Will as a defence to the present suit.
24. In this regard, what is to be noted is that the defendant had applied for permission to withdraw the Probate Petition after the present suit had been filed by the plaintiff herein. From the Order dated 16.07.2022 passed by the learned Additional District Judge on the said application, it would be apparent that the effect of the withdrawal of the Probate Petition was left to be decided by this Court where the present suit was pending.
25. In Chetan Calvin Nazareth (supra), the High Court of Bombay has held that a Probate Petition once filed cannot be allowed to be withdrawn. In the present case, the Probate Petition already stands withdrawn, and the issue before this Court is the effect of such withdrawal on the defence of the defendant in the present suit. The said judgment, therefore, is not relevant to the issue to be determined by this Court.
26. Placing reliance on the judgment of this Court in Jiten Wadhawan (supra), the learned counsel for the plaintiff has argued that once a Probate Petition is withdrawn, the Will cannot be set up even as a defence in the suit. In my view, the said submission cannot be accepted. The Supreme Court in Kandapazha Nadar & Ors. v. Chitraganiammal & Ors., (2007) 7 SCC 65 has held that Order XXIII Rule 1(4) of the CPC only precludes the plaintiff withdrawing the suit from instituting any fresh suit in respect of the subject matter or such part of the claim raised in the suit being withdrawn. The Supreme Court held that the said provision does not debar the said plaintiff to set up the same plea in his defence to a suit filed by the other party. I may quote from the judgment as under:-
“15. In (Rani) Kulandai Pandichi v. Indran Ramaswami Pandia Thevan [AIR 1928 Mad 416] it has been held as follows: (AIR pp. 418-19)
“Permission to withdraw a suit decides no matters in controversy and does not confer any rights on a party and the fact that the person withdrawing is precluded from bringing a fresh suit on the same cause of action cannot be said to have that effect. It has been held that an order permitting the withdrawal of a suit or appeal is not a decree within the meaning of the Civil Procedure Code. We need only refer to Patloji v. Ganu [ILR (1891) 15 Bom 370], Jogodindro Nath v. Sarut Sunduri Debi [ILR (1891) 18 Cal 322] and Abdul Hossein v. Kasi Sahu [ILR (1900) 27 Cal 362].”

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19. In view of the above judgments, the position in law is clear that when the court allows the suit to be withdrawn without liberty to file a fresh suit, without any adjudication, such order allowing withdrawal cannot constitute a decree and it cannot debar the petitioners herein from taking the defence in the second round of litigation as held in the impugned judgment. The above judgments indicate that if the plaintiff withdraws the suit, the order of the court allowing such withdrawal does not constitute a decree under Section 2(2) of the Code. That in any event, it will not preclude the petitioners herein (the defendants in second round) from raising the plea that the sale deed executed by Chelliah Nadar on 26-2-1973 in favour of Thangaraj Nadar was not true and valid. Thus, the civil appeal needs to be allowed.”

27. Following the above judgment, this Court has also in Smt. Seema Kohli v. Sh. Sunil Dua & Ors., 2024 SCC OnLine Del 5311 reiterated as under:-
“22. The said Suit was unconditionally withdrawn by the defendants vide Order dated 30.07.2019 of this Court. The defendants neither prayed for nor were granted leave to institute a fresh suit in respect of the subject matter of the Suit. In terms of the Order XXII Rule 3(4) of the CPC, the defendants shall therefore be precluded from instituting any fresh Suit in respect of the said subject matter or part of the claim. They, however, would not be precluded from taking the same plea in defence to the present Suit.”

28. The above principle would be applicable to the facts of the present case. As noted hereinabove, the present suit had been filed before the defendant withdrew the Probate Petition. It is the contention of the learned counsel for the defendant that the Probate Petition was withdrawn as the defendant would have to prove the Will even as a defence in the present suit. Considered from the position in law that the defendant was otherwise not required to obtain a probate of the Will, the Will having been executed in Delhi and relating to a property in Delhi, and even otherwise the provisions of Order XXIII Rule 1(4) of the CPC do not bar the plaintiff withdrawing his suit from raising the same claim as a defence in another suit, in my opinion, the defendant cannot be barred in the present suit from setting up the Will dated 19.06.2018 as a defence in the suit.
29. In Jiten Wadhawan (supra), this Court was confronted with the factual position where the defendant withdrew his Probate Petition after the plaintiff had filed his objections in the said petition claiming the alleged Will to be a forged document. The defendant then tried to set up the said Will in defence to the suit filed by the plaintiff therein, which was rejected by the learned Trial Court and the said order was upheld by this Court. The defendant in the said suit filed an application seeking liberty to lead evidence to prove the same Will. The Court held that the withdrawal of the Probate Petition, after filing of the objections stating that the Will is forged, shows that the Will was not the genuine Will of the Testator and was a forged document. The Court also held that withdrawal of the Probate Petition results in a judgment by the Court. This view of the Court may not be correct.
30. Section 11 of the CPC reads as under:-
“11. Res judicata.— No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

31. The Supreme Court in Prem Kishore v. Brahm Prakash, 2023 SCC OnLine SC 356, held that for res judicata under Section 11 of the CPC to apply, the previous suit should have been decided on merits. I may quote from the judgment as under:-
“26. Section 11 of the CPC enunciates the rule of res judicata: a court shall not try any suit or issue in which the matter that is directly in issue has been directly or indirectly heard and decided in a ‘former suit’. Therefore, for the purpose of adjudicating on the issue of res judicata it is necessary that the same issue (that is raised in the suit) has been adjudicated in the former suit. It is necessary that we refer to the exercise taken up by this Court while adjudicating on res judicata, before referring to res judicata as a ground for rejection of the plaint under Order 7 Rule 11. Justice R C Lahoti (as the learned Chief Justice then was), speaking for a two Judge bench in V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551, discussed the plea of res judicata and the particulars that would be required to prove the plea. The Court held that it is necessary to refer to the copies of the pleadings, issues and the judgment of the ‘former suit’ while adjudicating on the plea of res judicata:—

“11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause.

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13. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. May be, in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780] the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. Bhooralal [AIR 1964 SC 1810 : (1964) 7 SCR 831] placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council [(1887-88) 15 IA 186 : ILR 16 Cal 173] pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.”
(Emphasis supplied)

27. This Court in the case of V. Rajeshwari (supra) observed that the rule of res judicata does not strike at the root of the jurisdiction of the Court trying the subsequent suit. It is a rule of estoppal based on the public policy of achieving finality to litigation. The plea of res judicata is founded on proof of certain facts and then applying the law to the facts so found. It is, therefore, necessary that the foundation for the belief must be laid in the pleadings and then the issue must be framed and tried.

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38. The general principle of res judicata under Section 11 of the CPC contain rules of conclusiveness of judgment, but for res judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. Further, the suit should have been decided on merits and the decision should have attained finality. Where the former suit is dismissed by the trial court for want of jurisdiction, or for default of the plaintiff’s appearance, or on the ground of non-joinder or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit.”

32. The reliance of the learned counsel for the plaintiff on the judgment of the Supreme Court in Sarguja Transport Service (supra), also does not assist the plaintiff. The Supreme Court has held that though the rule of res judicata does not apply where the first suit is withdrawn by the plaintiff without seeking permission of the Court to file a second suit, the principle contained in Order XXIII Rule 1(4) of the CPC is based on public policy to prevent abuse of the Court’s process and, therefore, only bars filing of a second suit on the same subject matter. I may quote from the judgment as under:
“7. The Code as it now stands thus makes a distinction between ‘abandonment’ of a suit and ‘withdrawal’ from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in subrule (3) of Rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito benificium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is rounded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or sub- stantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court.”

33. In the present case, even the principle of public policy would not prevent the defendant from raising the alleged Will as a defence to the suit, as the suit had already been filed by the plaintiff, and it is not the case herein that the defendant withdrew his Probate Petition and only thereafter the present suit was filed. As noted above, the principle of public policy would come into play if it was the defendant that had filed a second Probate Petition or may have filed a suit asserting a right based on the alleged Will dated 19.06.2018 of his mother.

Decision:
34. In the present case, therefore, there are issues to be determined by this Court, which would require evidence to be led by the parties, and the trial cannot be short-circuited by invoking the provisions of Order XII Rule 6 of the CPC.
35. I, therefore, find no merit in the present application. The same is accordingly dismissed.
36. It is made clear that the above observations are only for determining the present application and shall not prejudice the rights and contentions of either of the parties at a later stage of this suit.

CS(OS) 267/2019 & I.A. 7368/2019
37. List before the Roster Bench for further proceedings on 3rd December, 2024.

NAVIN CHAWLA, J.
November 14, 2024/as/rv

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CS(OS) 267/2019 Page 19 of 19