RAKESH JAIN Vs. SHARDA DEVI GILL

JUDGEMENT

(1.) This revision petition is directed against the order dated 26.2.1998 passed by the Additional District Judge, Delhi in Suit No. 960/1996 dismissing the application filed by the petitioner/defendant under Section 10 of the Code of Civil Procedure.

(2.) The respondent herein instituted a suit against the petitioner herein seeking for a decree for recovery of possession and for payment of mesne profits/damages. The petitioner contested the aforesaid suit and filed his written statement contending inter alia that he is in lawful occupation of the suit premises in his right as a tenant. In the aforesaid suit the following issues were framed : (i) Whether suit has been signed and verified by duly authorised person? OPP (ii) Whether suit has not been properly valued for Court fee and jurisdiction? OPD (iii) Whether suit is barred under Section 50 of DRC Act? OPD (iv) Whether the defendant was a licensee of plaintiff and if so to what effect? OPP (v) Whether the defendant's status presently is of a trespasser? (vi) Whether the plaintiff is entitled to possession of the property in question? (vii) Whether plaintiff is entitled to mesne profits/damages if so, at what rate and for what period? OPP iii) Relief? The petitioner, however, filed an application on 10.2.1998 under Section 10 of the Code of Civil Procedure wherein he prayed that the trial of the Suit No. 960/1996 be stayed because the matter in issue is directly and substantially in issue in a previously instituted Suit No. 604/1991. The said application was taken up for consideration and by order dated 26.2.1998 dismissed the application as against which the present revision petition has been preferred.

(3.) In order to appreciate the contentions of the parties it would be necessary to state at this stage the background relating to the filing of the aforesaid application under Section 10 of the Code of Civil Procedure. The petitioner herein filed a suit on 13.11.1991 against the respondent and her sons S.S. Gill and Joginder Singh Gill seeking for a decree for perpetual injunction restraining then' from dispossessing the petitioner/plaintiff forcibly, illegally and wrongfully from the premises in his occupation i.e. the suit premises. The aforesaid defendants including the present respondent contested the suit and on the pleadings of the parties the following issues were framed: (i) Whether the plaintiff has a cause of action to file the present suit? Onus on parties? (ii) Whether the plaintiff is in legal possession of 3 rooms, kitchen and bath being the tenant of the defendant? (iii) Whether the plaintiff has unauthorisedly constructed one more room in the premises in question? OPD (iv) Whether the plaintiff is a trespasser in the defendant's premises? OPD (v) Whether the plaintiff is in legal occupation of 3 rooms as shown in the site plan since 1986? OPP (vi) Whether the plaintiff is entitled to any equitable relief? (vii) Whether the defendants are entitled for cost? OPD (viii) Relief. The relief sought in the aforesaid suit was in the following nature: "That the plaintiff prays that a decree by issue of perpetual injunction may be passed in favour of the plaintiff against the defendants restraining the defendants from dispossessing the plaintiff forcibly, illegally and wrongfully from the premises in his occupation i.e. three rooms, kitchen, bath, toilet on the ground floor of house No. K-l, Lajpat Nagar-II, New Delhi as shown in red in the annexed plan. Costs of the suit be awarded to the plaintiff against the defendants." In the aforesaid suit the statement of the petitioner/plaintiff has already been recorded. Subsequently, i.e. on 12.12.1996 the suit out of which the present revision petition arises was instituted by the respondent herein against the petitioner.