SURENDRA NATH PASRICHA Vs. KAMLA PASRICHA & ORS

JUDGEMENT

(1.) I.A No. 6528/2017 (U/o XII Rule 6 CPC filed by the plaintiff)

(2.) The facts as stated in the plaint are that late Sh. Wazir Chand Pasricha, who was the father of the plaintiff, was the owner of the entire House No.25/24, East Patel Nagar, New Delhi. Sh. Wazir Chand Pasricha is the father-in-law of defendant no.1 i.e the father of Sh. Ravinder Nath Pasricha is the late husband of defendant no.1/Smt. Kamla Pasricha. The defendant no.2 in this suit is Smt. Simmi Nayyar and who is the daughter of defendant no.1 and late Sh. Ravinder Nath Pasricha. Defendant no.3 in the suit is Sh. Sandeep Pasricha, the son of defendant no.1 and late Sh. Ravinder Pasricha. The plaintiff pleads that Sh. Wazir Chand Pasricha expired on 13.1.1985 but before his death Sh. Wazir Chand Pasricha had executed a registered Will dated 18.6.1984 whereby life-estate in the suit property being the first floor and the barsati floor of the property was bequeathed to Sh. Ravinder Nath Pasricha, the predecessor-in-interest of the defendants. Sh. Ravinder Nath Pasricha, the predecessor-in-interest since only had a life-estate, after his death, the suit property being the first floor and the barsati floor of H.No. 25/24 was to devolve absolutely upon the plaintiff to the present suit Sh. Surendra Nath Pasricha. In the plaint it is further pleaded that in terms of the registered Will dated 18.6.1984 of the father, the plaintiff and Sh. Ravinder Nath Pasricha, got mutated their respective rights in the suit property before the L&DO. Plaintiff also pleads the reason for late Sh. Ravinder Nath Pasricha not being given the suit property on account of late Sh. Ravinder Nath Pasricha being allotted a plot of 252 sq. yards in a House Building Cooperative Society for which construction cost was paid by the father Sh. Wazir Chand Pasricha. It is also pleaded in the plaint that to the granddaughter Smt. Simmy Nayyar late Sh. Wazir Chand Pasricha had given a loan to purchase a property where she is presently residing. For defendant no.1 a property bearing no. 1/13, Ground Floor, Sunder Vihar, Paschim Vihar, New Delhi was purchased by Sh. Wazir Chand Pasricha. The plaint makes reference to various earlier litigations between the parties, but for the purpose of the present application, specific reference is made to a suit for injunction filed by the plaintiff for restraining late Sh. Ravinder Nath Pasricha and defendant no.3 herein from using the suit premises for commercial purpose and parting with possession of the suit property to any other person, and which reliefs were claimed by placing reliance upon the Will of the father Sh. Wazir Chand Pasricha dated 18.6.1984. The defendant no.3 in the present suit Sh. Sandeep Pasricha was the defendant no.2 in the earlier suit for injunction filed, and which suit was numbered as Suit No.272/2003 filed in the Court of Civil Judge at Delhi. Plaintiff in the suit pleads that the Suit No. 272/2003 was decreed in terms of the judgment dated 24.4.2007 and it was held in that suit that Sh. Ravinder Nath Pasricha, the defendant no.1 in that suit, and the predecessor-in-interest of the defendants in this suit, only had a lifeestate in the suit property in view of the bequest made by the Will dated 18.6.1984, and which Will was proved by the present plaintiff as the plaintiff in Suit No. 272/2003. Accordingly, it is argued on behalf of the plaintiff by means of the present application under Order XII Rule 6 CPC that the issue of title of the plaintiff in the suit premises, and only of a life-estate of the defendants, predecessor-in-interest Sh. Ravinder Nath Pasricha, stood finally decided in favour of the plaintiff in terms of the judgment and decree dated 24.4.2007 in Suit No. 272/2003 decided by the court of Sh. Naresh Kumar Laka, Civil Judge, Delhi, and therefore it is prayed that by applying the doctrine of res judicata contained in Section 11 CPC the plaintiff be forthwith granted decree of possession of the suit property leaving the issue of determination of mesne profits during the course of trial in the present suit.

(3.) Two written statements have been filed in this suit. One written statement is filed by the defendant no.1 and the other written statement is filed by defendant no.2. Defendant no.3 has not contested the suit and he has been proceeded ex-parte. Both the written statements have been filed by the same counsel who has today argued the application under Order XII Rule 6 CPC filed by the plaintiff. It is not disputed on behalf of the defendant nos. 1 and 2 either in the written statement or during the course of arguments before this Court that there is in fact a judgment dated 24.4.2007 passed by the court of Sh. Naresh Kumar Laka, Civil Judge, Delhi in Suit No. 272/2003, however it is argued by the counsel for defendant nos. 1 and 2 that the said earlier judgment will not operate as res judicata against the defendant nos. 1 and 2 because the earlier suit was a simplicitor suit for injunction and in such a suit for injunction title of the suit property could not have been decided. Reliance in support of the arguments by the defendant nos. 1 and 2 is placed upon a judgment of the Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by Lrs and Others, 2008 4 SCC 594, sub-para (c) of para 21 of the said judgment, which holds that in a suit for injunction issue of title could not have been decided, and therefore defendant nos. 1 and 2 argue that the judgment dated 24.4.2007 will not operate as res judicata between the parties, though defendants no.1 and 2 are admittedly legal heirs of Sh. Ravinder Nath Pasricha who was the defendant no.1 in the Suit No. 272/2003. As already stated above, defendant no.3 in this suit Sh. Sandeep Pasricha was the defendant no.2 in the earlier suit. Of course, defendant no.3 is strategically not appearing in this suit because defendant no.3 was very much a partydefendant no.2 to the earlier Suit No. 272/2003 and which was decided against this defendant no.3 and his father Sh. Ravinder Nath Pasricha, who is also the predecessor-in-interest of the defendant nos. 1 and 2.