SUMER CHAND Vs. FATEH CHAND AND OTHERS

JUDGEMENT

(1.) THIS petition for revision by Sumer Chand is directed against the order of the Subordinate Judge 1st Class, Delhi striking his name from the array of plaintiffs in the suit filed by him and four others against the first respondent Fateh Chand.

(2.) A suit was filed by the petitioner as plaintiff No. 2 and four others, Messrs. Munshi Lal Parkash Chand, Parkash Chand, Santosh Chand and Shrimati Chanderwati for perpetual injunction seeking to restrain the defendant from raising any wall or construction in the courtyard shown in the plan annexed with the plaint. The petitioner Sumer Chand is a brother of the other co -plaintiffs' Parkash Chand and Santosh Chand and the fifth plaintiff Chanderwati is his mother. The first plaintiff is the firm of Munshi Lal Parkash Chand, Munshi Lal being the father of the petitioner. All the plaintiff's are in occupation as tenants of the demised premises which forms the major portion of a building bearing municipal No. 236 -67, Chhata Shah Ji, Chawri Bazar, Delhi, since 1935. It was asserted in the plaint that the passage which the defendant -landlord was seeking to obstruct by a construction has been used by them for ingress and egress for the demised premises. The defendant acquired this building by purchase on 1st of April, 1961, and according to the averment in the plaint has been threatening the tenant -plaintiffs since then to construct an unauthorised wall which would obstruct the plaintiff's passage.

(3.) WHILE the trial Judge rejected the plea of the defendant so far as the question of res judicata is concerned, it has been found by the learned Judge that the suit so far as the petitioner Sumer Chand is concerned, is barred under the provisions of Order 23, rule 1 of the Code of Civil Procedure. As the learned counsel for the respondent seeks to justify the impugned order of the trial Judge also on the ground that the plea of res judicata is sustainable, I might deal with this point first. In a previous suit instituted by Sumer Chand and five others against the defendant Fateh Chand relating to the same subject -matter, an order was passed by the Subordinate Judge, Delhi, Shri R.C. Jain, on 18th of February, 1963, to this effect :