AJAY JAISWAL Vs. RAJINDER SOOD

JUDGEMENT

(1.) Instant civil revision petition filed under S. 115 CPC, lays challenge to order dtd. 18/1/2020 passed by learned Senior Civil Judge, Court No.(2) Shimla, whereby an application under S.10 CPC, filed by respondent/defendant No.1 (hereinafter, 'defendant No.1'), praying therein to stay the proceedings in Civil Suit No. 154-1 of 15/14 titled Ajay Jaiswal v. Rajinder Sood and others, came to be allowed.

(2.) Precisely, the facts of the case as emerge from record are that petitioner/plaintiff (hereinafter, 'plaintiff') filed a suit for declaration to the effect that Will executed by Smt. Shakuntla Devi in favour of defendant Nos.1 and 2, be declared as null,void, inoperative and not binding upon right, title and interest of the plaintiff. Since defendant No.1 failed to file written statement despite repeated opportunity, his defence was struck off on 30/9/2015 by learned trial Court. After passing of order dtd. 30/9/2015, defendant No.1 filed an application under S. 10 CPC, praying therein to stay the suit on the ground that matter in the suit is/was directly and substantially in issue in previous suit between the same parties and appeal against the judgment and decree dtd. 16/9/2001 passed by District Judge in Civil Suit No. 67-S/1 of 1995/93 titled Om Parkash v. Rajinder Kumar Sood is pending adjudication. Though, after filing of the application, defendant No.1 also filed CMPMO No. 514 of 2015, in this court, laying therein challenge to order dtd. 30/9/2015, whereby defence of the petitioner was struck off but same was dismissed vide order dtd. 24/8/2016. In the application under S.10 CPC, (Annexure P-3) as detailed herein above, defendant No.1 averred that plaintiff has filed the suit for declaration to the effect that Will executed by Shakuntala Devi in favour of defendants Nos. 1 and 2 is illegal, void and not binding upon right, title and interest of the plaintiff, but since prior to filing of the aforesaid suit, defendants had filed a suit for partition and separate rendition of accounts of maternal grandparents of plaintiff namely, Sant Ram and Shakuntala Devi titled Om Parkash Sood v. Rajinder Kumar Sood before Hon'ble High Court, which was later on transferred to learned District Judge Shimla in view of enhancement of pecuniary jurisdiction of District Judge and all the parties to present suit were party to earlier suit, as detailed above, coupled with the fact that in that suit, the defendants had laid challenge to authenticity, validity and legality of Will dtd. 10/2/1975 executed by Smt. Shakuntala Devi and Will dtd. 26/3/1974 executed by Sant Ram, subsequent suit having been filed by the plaintiff, laying therein challenge to aforesaid Will executed by Shakuntala Devi is required to be stayed in terms of provisions of S.10 CPC. Defendants also averred that vide judgment and decree dtd. 16/9/2000, though aforesaid suit was dismissed but once, affirmative findings came to be recorded qua issue No.9, i.e. with regard to validity of Will executed by Shakuntala Devi on 10/2/1975, subsequent suit having been filed by the plaintiff, laying therein challenge to Will dtd. 10/2/1975 executed by Shakuntala Devi, cannot proceed further, because, findings given in earlier suit qua validity of Will executed by Shakuntala Devi, shall operate as res judicata in the subsequent suit.

(3.) Aforesaid application filed by defendant No.1, came to be resisted by plaintiff, who in his reply, claimed that subsequent suit has been preferred against defendants on the separate cause of action and as such, provisions of S.10 are not attracted. Plaintiff averred that he filed suit to protect this intricate right of title and interest over suit property which is altogether different cause of action as against Civil Suit No. 67-S/1 of 1995/93, titled Om Praksh v. Rajinder Kumar, which is a suit for rendition of accounts and partition of ancestral properties. Plaintiff further averred in the reply that the matter in present suit was not directly and substantially in issue in suit between same parties because earlier suit was for partition and separate rendition of accounts and present suit is for declaration, on entirely separate cause of action.