SUMAN MALHOTRA Vs. MUKESH MALHOTRA

JUDGEMENT

(1.) This is a plaintiffs' appeal arising out of a suit for declaration which the court of Additional District Judge, Delhi has dismissed by the impugned judgment and decree. The court below has, while deciding preliminary issues No. 1 and 3 against the plaintiffs, held the suit in question to be barred not only by the provisions of Order 2 Rule 2 of the CPC but also by the law of limitation. The controversy arises in the following circumstances:

(2.) The suit premises comprising a shop situate on the Church Main Road, Fatehpuri, Delhi was taken on rent by one Sh.Shivraj Singh. After the demise of the tenant, the premises came in the possession of his grandson late Sh. Anuj Malhotra, husband of Appellant No. 1 and father of Appellant No. 2 herein. The appellants claim that Sh.Anuj Malhotra was using the premises for carrying on business in the name and style of M/s Kumar Photographers. The plaintiffs appellants' further case was that after the demise of Sh.Shivraj Singh, his grandsons, namely, Sh.Anuj Malhotra and Sh.Mukesh Malhotra were holding the property as joint tenants and carrying on a joint family business in the same. According to the appellants, defendant-respondent No. 2 who happens to be the owner of the disputed premises had filed a collusive suit for permanent injunction against M/s Kumar Photographers and Sh.Mukesh Malhotra, respondent No. 1 in this appeal. That suit was decreed by order dated 18th December, 1986 on a compromise which fact never came to the notice of Sh.Anuj Malhotra who died on 14th November, 1999. It was only after Sh.Mukesh Malhotra filed his written statement in Suit No. 955/2001 that the plaintiffs' claim to have acquired knowledge about the filing of the collusive suit for injunction and the decree passed in the same necessitating a declaration to the effect that the said decree was not binding upon the plaintiffs. The prayer made in the suit was in the following words:

(3.) Defendant No. 1 appeared to contest the suit and filed a written statement. On the pleadings of the parties, the court framed issues on 12th October, 2004 out of which issues 2, 3 and 4 extracted below were treated as preliminary issues: 2. Whether the suit is not maintainable in view of the earlier suit bearing No. 154/01/04 which is also pending disposal in this court as that suit had been filed on 11/05/01, i.e., prior to institution of this suit" OPD-1 3. Whether the suit is barred by limitation" OPD-1