Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 8020 of 2018 Petitioner :- Radhey Shyam And Another Respondent :- Raj Nath And 11 Others Counsel for Petitioner :- Rama Shanker Yadav Counsel for Respondent :- Rajendra Prasad Tripathi
Hon'ble Mrs. Sunita Agarwal,J.
Sri Arun Kumar learned counsel has filed his Vakalatnama on behalf of respondent no.1.
Heard learned counsel for the parties and perused the records.
The present petition is filed against the order dated 24.08.2018 passed by the Additional District Judge, Court no.4 Jaunpur in Misc. Civil Appeal No.63 of 2017 (Raj Nath Vs. Paras Nath). The said appeal arises out of the Original Suit no.912 of 2015 which has been filed by Paras Nath and Ram Awadh sons of Jhullar claiming them and the proforma defendant nos.6 to 11 as Bhumidhar with transferable right of the suit property. The injunction has been sought against defendant nos.5 to 7 with the assertion that they are illegally interfering in their peaceful possession over the suit property which is Arazi No.588 area 0.032 hectare. The said suit has been contested by the defendant no.1 to 5 by filing a written statement wherein a categorical assertion has been made that the plaintiff's brother had filed earlier suit namely Original Suit no.89 of 2015 with regard to the same suit property i.e. Arazi No.588 and has conveniently concealed the said fact. In the previous suit, no temporary injunction has been granted in favour of the plaintiff therein and as such the other alleged co-tenure holders have filed the present suit.
This aspect of the matter has not been correctly appreciated by the trial court in as much as, the trial court has recorded a finding that the description of the property in the previous suit namely Original Suit No.89 of 2015 is not clear.
On the appeal filed by the respondents, the first appellate court has recorded a categorical finding that the plaintiff of the original suit no.912 of 2015 has not come with the clean hand. A perusal of the plaints of the original suit No.912 of 2015 and Original Suit No.89 of 2015 makes it clear that the previous suit was filed by Ramkesh son of Jhullar against Rajnath, the respondent no.1 herein claiming him and the defendant nos.2 to 6 as owners of the suit property which includes plot no.588. The second paragraph of the plaint and the description of the property at the foot of the plaint makes it clear that Arazi no.588 is subject matter of the previous suit namely Original Suit No.89 of 2015. It is also clear from the averments in paragraph no.2 and 3 of the plaint of Original Suit no.89 of 2015 that the defendants nos.2 to 6 have been impleaded therein as proforma defendants with the plea that they were not available at the time of filing of the suit though their interest in the suit property and that of the plaintiff is same.
In view of the said facts apparent on the face of the record, this Court does not find any error in the decision of the first appellate court. The second suit filed with respect to the same suit property by the proforma defendants in the previous suit, in the opinion of the Court, is not maintainable.
However, a liberty is being granted to the petitioners/plaintiffs in Original Suit No.912 of 2015 (subsequent suit) to seek their transposition as plaintiffs in the previous suit namely original suit no.89 of 2015 by moving appropriate application before the court below.
The second suit no.912 of 2015 is clearly barred by Section 10 of C.P.C. The trial court is hereby directed to pass appropriate order on the objections taken by the defendants therein.
Subject to the above observations, the present petition is disposed of.
Order Date :- 26.10.2018 Himanshu