PRAVEEN SHARMA Vs. JAI PRAKASH SHARMA

JUDGEMENT

(1.) Aggrieved by the order dated 26th October, 2013 whereby the application of the Petitioner under Order XXIII Rule 1 (3) (b) CPC was dismissed the Petitioner prefers the present petition.

(2.) The Petitioner Smt. Praveen Sharma filed a suit against Jai Prakash Sharma, his wife Asha Sharma and Ms. Ashima Sharma, the Defendants and Respondents herein seeking mandatory injunction and directions to the Defendants to vacate and hand over the possession in respect of one room on first floor of property No. H-34, Rajouri Garden, New Delhi being owner of half portion of property No. H-34, Rajouri Garden, New Delhi (in short 'the suit property'). The Respondents filed the written statement and the counter claim. In the written statement it was stated that the Petitioner had no locus standi or any legal right to file the suit against the Defendant Nos. 2 and 3 as she was not the absolute owner of the suit property or owner of half portion of the suit property, rather her husband along with the Defendants was the co-sharer/co-owners of the suit property. The valuation was also challenged and it was stated that the Respondent Nos. 2 and 3 herein have already filed a suit for declaration along with the consequential reliefs against the Petitioner which was pending before the learned Civil Judge being Suit No. 130/2012. Challenge was also made to the pecuniary jurisdiction and the court fees filed. It was stated that the property belongs to Ganesh Dass Sharma on whose death it devolved upon his two sons Shyam Lal Sharma and Uttam Chand Sharma. The Respondent No. 1 is son of late Shyam Lal Sharma and Respondent No. 2 and 3 are Respondent No.1/Defendant No.1's wife and adopted daughter respectively. The property was yet to be partitioned between Shyam Lal Sharma and Uttam Sharma by metes and bounds. Concealment of facts is also pleaded in the written statement. The Will dated 15th May, 1998 was stated to be forged and fabricated and never executed by Shyam Lal Sharma. In the counter claim the Respondents sought a decree of declaration declaring the alleged family settlement by Shyam Lal Sharma in favour of the Petitioner and affidavits of Jai Prakash Sharma, Krishna Devi and Kamla as null and void and the alleged Will dated 15th May, 1998 allegedly executed by late Shyam Lal Sharma also as null and void.

(3.) After the counter claim was filed the Petitioner filed the application as noted above. The grounds taken in the application under Order XXIII Rule 1 (3) (b) CPC read with Section 151 CPC are that the Plaintiff engaged another counsel to seek expert legal advice and on going through the entire factual conspectus of the matter it was advised that the present suit be withdrawn with liberty to file a fresh suit with appropriate relief in respect of the same subject matter and on the same cause of action to avoid any technical objection at a later stage. Thus to avoid any technical objection which will prove fatal at later stage as a matter of abundant caution the Petitioner/Plaintiff sought permission to withdraw the suit with liberty to file a fresh suit in view of the multifarious complications. It was also stated that the suit was at the stage of completion of pleadings and the trial had not started.