B.R. MURAR Vs. THEODORE JUSLIN SUNDI

JUDGEMENT

(1.) THE present petition under Section 115 CPC has been filed by the petitioner against the order dated 21st July 2011 passed by the learned Civil Judge, Tis Hazari Courts, Delhi, whereby a preliminary issue was decided in favour of the respondent in a suit for declaration, permanent injunction and possession filed by the respondent against the petitioner in respect of a flat bearing No.L II/209 A, Ground Floor, Kalkaji (hereinafter referred to as "suit property").

(2.) IN the said suit, it was stated that the respondent was the owner of the suit property and allowed the petitioners to reside therein for some time but later terminated their license vide a notice dated 10th March 1985, however, the petitioners failed to vacate the suit property. Meanwhile, the petitioners filed a suit for declaration against the respondent in respect of the suit property. In the said suit, a counter claim was filed by the respondent for grant of damages and also for mandatory injunction to direct the petitioners to handover vacant and peaceful possession of the suit property back to the respondent. It was stated by the respondent in his plaint in the present suit that in the earlier proceeding, the plaint as well as the counter claim were dismissed on 24th August 2004.

(3.) WHILE hearing the parties on the said issue so framed, the learned trial court summoned the file of the earlier proceedings from the record room and considered the same. It was opined that the cause of action survived in favour of the respondent and the present suit was considered to be maintainable and not barred by Section 11 CPC.