SHEELA SOHANLAL GHAI Vs. SNEHALATA SOHANLAL GHAI

JUDGEMENT

(1.) THIS notice of motion has been taken out under section 10 of the Civil Procedure Code for stay of further proceedings in the present suit. In affidavit in support of the notice of motion, it is stated that the defendant No. 1 was the legally wedded wife of one Sohanlal Bansiram Ghai, who passed away on 3rd March 1989. The defendant No. 1 along with her daughter and son as the legal heirs and representatives of the deceased filed Suit No. 1055/89 in this Court on 3rd April 1989. This suit is filed against the plaintiffs herein and others seeking, inter alia, the declaration that the plaintiffs therein are the only heirs and legal representatives of the deceased and are as such entitled to the estate left by the deceased. It is also claimed in Suit No. 1055/89 that the defendants therein do not have any share, right, title or interest of whatsoever nature in the estate of the deceased. Prayer for appointment of Receiver and injunction was also made in that suit. Suit No. 1055/89 shall be hereinafter referred to as the first suit. Suit No. 503/96 has been filed by defendants No. 1, 2 and 5 in the first suit. This suit shall be hereinafter referred to as "the present suit". The plaintiffs in the present suit also seek a declaration to the effect that the plaintiffs are the only heirs and legal representatives of the deceased Sohanlal and they alone are entitled to the rights, title and interest to all the properties mentioned in Exhibit "b" to the plaint. It is also prayed that the defendants No. 1, 2 and 3 in the present suit (the plaintiffs in the first suit), their family members, servants, agents and employees be ordered and directed to hand over to the plaintiffs in the present suit the vacant and peaceful possession of all the properties and documents in their possession shown as Exhibit "h" to the plaint. Similar prayer is made against defendant No. 4. In the first suit, the Court Receiver was appointed on the application of the plaintiffs therein on 7th April 1989. This ad-interim order was confirmed on 25th April 1995. In this order, it is held that rival claim of the parties as to who is legally wedded wife of the deceased would be examined at the time of the trial of the suit. The plaintiffs in the present suit had preferred an appeal against the said order which is still pending. The present suit has been filed on 20th December 1996 against the plaintiffs and others in the first suit. Since the Court Receiver has already been appointed in the first suit, the plaintiff in the present suit have impleaded the Receiver as party defendant.

(2.) MR. Shah, the learned Counsel appearing for defendants No. 1 to 3 in support of the notice of motion, submitted that the issues which arise in the present suit are substantially the same if not identical to the issues which would arise in the first suit. In view of section 10 of Civil Procedure Code, he submits that the proceedings in this suit ought to be stayed.

(3.) AFFIDAVIT in reply to the notice of motion has been filed in which it is stated that the present notice of motion is misconceived and is only an attempt to delay and deny the adjudication of the rights of the plaintiffs as the only legal heirs of the deceased. It is also stated that the proceedings in the present suit do not fall within the scope of section 10 of Civil Procedure Code. It is stated that the issues which would arise in the present suit are substantially the same as the issues which would arise in the first suit.