N D TIWARI Vs. ROHIT SHEKHAR

JUDGEMENT

(1.) Civil Suit CS (OS) 1711/2007 was filed on 12th September, 2007 by the Respondent No. 1 primarily against the Appellant inter alia seeking a declaration of relationship with the Appellant and a perpetual injunction from denying the said relationship and publishing the same in the newspaper. No summons were issued to the Appellant in the said suit and on 20th September, 2007 an Application IA No. 10860/2007 under Order VI Rule 17 CPC was filed seeking amendment of the plaint by incorporation of additional facts. It is this incorporation of facts as sought in CS (OS) 1171/2007 which is the bone of contention in the present Appeal. The incorporation sought was addition of para 3 (xvi) and to para 8 of the plaint:

(2.) In the civil suit filed earlier, that is, CS (OS) 1711/2007 the requirement of Article 361 (4) of the Constitution of India was not met and in view of this hurdle the Respondent No. 1 sought liberty to withdraw the plaint by filing an application being IA No. 2912/2008. By the said application the Respondent No. 1 sought permission to withdraw the suit with liberty to file a fresh suit on the same cause of action incorporating the factum of notice issued by the Respondent No. 1 under Article 361 (4) of the Constitution of India, to the Appellant. The Order dated 24th March, 2008 passed by the learned Single Judge permitting withdrawal of the suit reads:

(3.) The Respondent No. 1 filed a fresh suit on 11th April, 2008 being CS (OS) 700/2008 and the amendments sought by way of IA No. 1660/2008 in CS (OS) 1711/2007 were incorporated in para 3 (xvi) and para 9 of the fresh plaint. On receipt of the summons the Appellant filed an Application being IA No. 9474/2008 in July, 2008 for rejection of the plaint under Order VII Rule 11 CPC for lack of territorial jurisdiction and being barred by the law of limitation. The learned Single Judge vide its Order dated 3rd November, 2009 allowed the Application of the Appellant and dismissed the suit as being not maintainable. This Order was taken to the Division Bench by way of an Appeal wherein this Court allowing the Appeal dismissed the contentions of the Appellant and held that the suit was not barred by limitation and the Delhi Court had the territorial jurisdiction to entertain the same. In a Special Leave Petition filed against the Order dated 17th March, 2010 passed by the Division Bench of this Court the Hon'ble Supreme Court disposed of the Appeal directing that on the strength of the pleadings of the parties the learned Trial Judge is required to frame issues and if the Appellant felt any of the issues is to be tried as a preliminary issue then it was open to the Appellant to request the learned Trial Judge to try those issues as preliminary issues, uninfluenced by any observations made either by the learned Single Judge or the Division Bench while deciding the question on merits.