NIRMAL SAREEN Vs. NILAM KUMARI KAPUR

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution is directed against the order dated 27.08.08 of Additional District Judge whereby an application filed by the petitioners under Section 10 read with Order 2 Rule 2 CPC, was dismissed.

(2.) FOR appreciating the controversy, brief narration of the facts seems necessary, which are these: The respondent/ plaintiff and S.P. Kapoor jointly purchased, in equal share, suit premises bearing No. D-9, Kalindi Colony, New Delhi, vide registered sale deed dated 03.02.1971. Subsequently, by oral partition, they partitioned the said property. Thereafter, the terms and conditions of oral partition were reduced in writing by way of memorandum dated 03.09.1990. One of the clauses of the memorandum provided that in the event of either of the parties proposing to sell his/her share of the said property, said party shall give the first option of purchase to other party at market price. Sometime in the year 1990, Shri S.P. Kapoor gave the plaintiff, option to purchase a portion of his share, comprising of complete first floor and servant quarter on the second floor along with undivided rights in the land to the extent of 25 per cent of the plot. The respondent/ plaintiff failed to exercise the option, whereupon, late Shri Kapoor on or about 03.09.1990 agreed to sell the aforesaid portion to the petitioner Nirmal Sareen. Shri Kapoor expired sometime in September, 1990, after having left a Will dated 24.08.1988, appointing Mr. S.P. Malhotra and Ram Prakash Kapor (arrayed as defendants) as Executors thereof. Thereafter, Smt. Lalita Kapoor wife of deceased Shri S.P. Kapoor, while intending to sell barsati and the servant quarter on the terrace floor, gave an option of purchase of this portion, to the respondent, vide her letter dated 12.11.1991. The option was to be exercised within 15 days of this letter. The respondent, though, had denied having received the aforesaid letter, but, it was maintained by Ms Lalita Kapoor having sent the same. So far there is not much controversy involved.

(3.) THE learned ADJ held that the matter in issue in the subsequent suit is not directly and substantially in issue in the previous suit, being different and thus, is not hit by the provision of Order 2 Rule 2 CPC. In arriving at this finding he reasoned as under: