Dwarka Prasad vs Rameshwar Dayal Khandelwal & Ors

CIVIL APPEAL NO. 8408 OF 2009 (Arising out of S.L.P. (Civil) No. 24019 of 2007)

Dwarika Prasad ... Appellant

Versus

Rameshwar Dayal Khandelwal & ors. ...Respondents

JUDGMENT

J.M. PANCHAL, J.

Leave granted.

2. Challenge in this appeal by special leave is to the

judgment dated October 26, 2007, rendered by

the High Court of Madhya Pradesh, Bench at

Gwalior in Writ Petition No. 5073 of 2007, by

which the order dated July 23, 2007, passed by

the learned IVth Additional District Judge,

Gwalior in Civil Suit No. 35-A of 2006 rejecting 2 the application filed by the appellant under

Section 10 of the Code of Civil Procedure to stay

the suit, is confirmed.

3. The relevant facts, which emerge from the record

of the case are as under:

The respondent No. 1 herein is the original

plaintiff. He has filed suit to declare that Sale Deed

dated July 12, 2004 executed by the appellant and

original defendants Nos. 2 and 3 in favour of original

defendant No. 4 is invalid and illegal. He has also

prayed the court to injunct the appellant and original

defendants Nos. 2 and 3 from alienating the ancestral

suit property. In the plaint it is stated that the property

in dispute belonged to his father and the appellant as

well as grandfather of the original defendants Nos. 2

and 3 and defendants Nos. 5 to 8. According to the

plaint Ghisalal, who was owner of the property, expired

on December 10, 1952 and was survived by three sons,

i.e., the original plaintiff, the appellant and one Shankar

Lal, who was father of defendants Nos. 5 to 8. What is 3 claimed in the plaint is that the suit property was

ancestral property belonging to Hindu Undivided Family

and after death of Ghisalal his three sons became

owners and occupants of the suit land but the appellant

with mala fide intentions submitted an application

before the Tehsildar, Gwalior to record his name as

owner of the disputed land stating that a Will was

executed by Ghisalal in his favour. It is claimed in the

plaint that on coming to know about the same, the

plaintiff and Shankar Lal filed objections, which were

allowed by order dated September 11, 1954 and a

direction was given by Tehsildar to record the names of

three brothers, i.e., the plaintiff, the appellant and

Shankar Lal in revenue records, as far as the suit

property is concerned. The respondent No. 1 has

mentioned in the plaint that the appellant clandestinely

got removed the name of the plaintiff and Shankar Lal

from the revenue records vide order dated January 14,

2004 and when this fact came to the knowledge of the

plaintiff, he filed an appeal in the Court of Sub

Divisional Magistrate, Gwalior, but the appeal was 4 rejected on May 6, 2004 and, therefore, an appeal was

preferred before the Additional Commissioner, Gwalior

Division, which was allowed by an order dated July 14,

2004, against which the appellant had filed revision

before the Court of Madhya Pradesh Board of Revenue,

which is pending. According to the plaintiff, initially the

Board had granted stay of the order passed by the

Additional Commissioner, Gwalior Division, Gwalior but

on application being filed by him, the said order was

modified and the appellant was restrained from

transferring the disputed property to any one in any

manner. According to the plaintiff, the Will on the basis

of which the appellant had advanced his claim was

forged one and Ghisalal had not executed any Will in

favour of the appellant on December 10, 1952 or on any

other date. It is mentioned in the plaint that Shankar

Lal had filed a suit for partition against the original

plaintiff as well as the appellant in the Court of the

learned Additional District Judge, Gwalior, wherein it

was held that the Will propounded by the appellant was

forged one. What is claimed in the plaint is that the 5 appellant and original defendants Nos. 2 and 3

transferred the suit property to the original defendant

No. 4, which is illegal. Under the circumstances the

respondent No. 1 has filed a suit and claimed the reliefs

to which reference is made earlier.

4. The respondent No. 1 herein has filed another

suit, i.e., Suit No. 35-A of 2006 impleading the

appellant as defendant No. 1 and prayed to

declare that he is the owner of the suit property.

In the said suit, he has also claimed permanent

injunction to restrain the appellant and others

from alienating the suit property.

5. The appellant filed an application under Order 7

Rule 11 CPC and requested the Court to reject

the plaint as, according to him, it did not disclose

any cause of action. The said application was

rejected by the Trial Court on July 12, 2006 and,

therefore, the appellant had filed revision petition

No. 122 of 2005 before the High Court, which was

also dismissed on March 29, 2007. Thereupon, 6 the appellant had filed Special Leave Petition (C)

No. 8853 of 2007. Initially, this Court had

granted stay of further proceedings of the suit.

Pleading this fact, the appellant filed an

application under Section 10 of the Code of Civil

Procedure to stay the proceedings of suit No. 35-

A of 2006. That application was rejected by the

Trial Court vide order dated July 23, 2007.

Feeling aggrieved the appellant invoked

extraordinary jurisdiction of the High Court

under Article 227 of the Constitution by filing

Writ Petition No. 5073 of 2004. The writ petition

filed by the appellant was dismissed by the

learned Single Judge of the High Court vide

judgment dated October 26, 2007. The validity of

the said judgment is subject-matter of the instant

appeal.

6. This Court has heard the learned counsel for the

parties and considered the record forming part of

the appeal.

7

7. It is well to remember that the application filed by

the appellant under Order 7 Rule 11 CPC was

dismissed on July 12, 2006. On a perusal of the

said application, it becomes at once clear that the

appellant in paragraph 5 of the said application

had referred to the pendency of the earlier suit

and prayed to stay the same but, after

considering the submissions and averments

made in the plaint, the application filed under

Order 7 Rule 11 CPC was dismissed. While

rejecting the application filed under Order 7 Rule

11 CPC, it was noticed by the trial court that the

suit filed earlier was at the stage of recording of

evidence and the application under Order 7 Rule

11 CPC was filed to delay the proceedings of the

suit. On scrutiny of the record, this Court finds

that the reasons indicated in the application filed

under Section 10 of the Code of Civil Procedure

were also mentioned in the application, which

was filed by the appellant under Order 7 Rule 11

CPC. Those reasons were considered and after 8 considering the matter in right perspective, the

application filed under Order 7 Rule 11 CPC was

rejected vide order dated July 12, 2006. Having

regard to the reasons, which were indicated by

the trial court in the order dated July 12, 2006,

this Court finds that the High Court was justified

in not entertaining the prayer of the appellant

made under Section 10 of the Code of Civil

Procedure. No ground has been made out by the

learned counsel for the appellant to interfere with

the impugned judgment and, therefore, the

appeal deserves to be dismissed.

8. For the foregoing reasons the appeal fails and is

dismissed. There shall be no order as to costs.

..............................J. [B. Sudershan Reddy]

..............................J. [J.M. Panchal]

New Delhi;

December 17, 2009.