PREM CHAND Vs. SUSHILA DEVI

JUDGEMENT

(1.) THIS petition purporting to one under Article 226 of the Constitution of India, but effectively one under Article 227 of the Constitution of India has been filed against the order dated 21.10.2008 whereby the learned Additional District Judge (Fast Track), No.2, Alwar by resort to Section 10 of the Code of Civil Procedure, 1908 (hereinafter 'the code of 1908') has stayed the petitioners-plaintiffs' (hereinafter the plaintiffs) suit bearing No.77/2004 laid against the respondents-defendants (hereinafter 'the defendants') on account of the fact that the suit before the court was founded upon a purported Will dated 18.07.1993 in respect whereof the issue had earlier been agitated in suit No.48/1997 at the instance of the defendants inter alia against the plaintiffs and a judgment and decree had already been passed on 11.04.2005 by the learned District and Sessions Judge, Alwar holding that the Will dated 18.07.1993 was non-binding and liable to cancellation. The court noted the fact that against the judgment and decree dated 11.04.2005 in civil suit No.48/1997, an appeal i.e. S.B. Civil First Appeal No.308/2005 had been filed by the plaintiffs before the High Court which was pending adjudication.

(2.) THE facts of the case are that one Rameshwar Nath owned certain immovable properties. One of his sons, Bhupendra Kumar Saini, husband of Sushila Devi and father of Prashant Kumar, the defendants, predeceased him. Following Rameshwar Nath's death, the plaintiffs herein propagated the Will dated 18.07.1993 seeking to defend a suit for partition and injunction filed by Sushila Devi as the wife of late Bhupendra Kumar Saini.

(3.) IN the suit No.77/2004 laid by the plaintiffs wherefrom the present petition arises, the status of Sushila Devi the defendant was stated to be that of a licencee and on averments of cancellation of her licence, she was sought to be dispossessed from the property under her occupation. The learned trial court in these circumstances held that the foundation of the subsequent suit bearing No.77/2004 based on the Will dated 18.07.1993 and the said Will already having found unenforceable by the trial court in suit No.48/1997 under its judgment and decree dated 11.04.2005 (appeal whereof was pending before the High Court at Jaipur) subsequent suit was liable to be stayed with reference to the provisions of Section 10 of Code of 1908.