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%04.8.2011
Present: Mr.Vikas Kumar, Advocate for the petitioner.
±CM(M) No.536/2010 & CM No.7275/2010 (for stay)
The order impugned before this Court is the order dated
10.9.2009 whereby the application filed by the defendant under
Section 11 of the Code of Civil Procedure had been dismissed. The impugned order has noted that the first suit was a suit for permanent injunction and mandatory injunction; that suit was dismissed on 05.9.2009. It had not been dismissed on merits; a preliminary issue had been framed about the maintainability of the suit; on the preliminary issue the suit had stood dismissed. The frçontention of the plaintiff in that suit was that he is the owner of the suit property and he had inducted defendant no.1 as a tenant who had sublet itjlega11y defendants no.2 to 4; suit had accordingly been filed. As noted supra this suit had not been decided on the merits of the controversy.
The second suit was a suit for permanent and mandatory injunction. Parties are admittedly the same but in this case the prayer was also distinct and different; prayer was that a decree of declarations be passed in favour of the plaintiff and against the defendant declaring the alleged sale deed purported to have being
2011:DHC:8807 executed by the defendant on 24.9.1999 be declared null and void.
Pleadings in the first suit and the second suit are distinct and different. That apart since the first decision ws not on its merits; doctrine of res judicata as envisaged in Section 11 of the Code does not apply. Impugned order does not call for a y interference
Petition is dismissed.
INDERMEET KAUR, J.
AUGUST 04, 2011 nandan
'I.
2011:DHC:8807
Present: Mr.Vikas Kumar, Advocate for the petitioner.
±CM(M) No.536/2010 & CM No.7275/2010 (for stay)
The order impugned before this Court is the order dated
10.9.2009 whereby the application filed by the defendant under
Section 11 of the Code of Civil Procedure had been dismissed. The impugned order has noted that the first suit was a suit for permanent injunction and mandatory injunction; that suit was dismissed on 05.9.2009. It had not been dismissed on merits; a preliminary issue had been framed about the maintainability of the suit; on the preliminary issue the suit had stood dismissed. The frçontention of the plaintiff in that suit was that he is the owner of the suit property and he had inducted defendant no.1 as a tenant who had sublet itjlega11y defendants no.2 to 4; suit had accordingly been filed. As noted supra this suit had not been decided on the merits of the controversy.
The second suit was a suit for permanent and mandatory injunction. Parties are admittedly the same but in this case the prayer was also distinct and different; prayer was that a decree of declarations be passed in favour of the plaintiff and against the defendant declaring the alleged sale deed purported to have being
2011:DHC:8807 executed by the defendant on 24.9.1999 be declared null and void.
Pleadings in the first suit and the second suit are distinct and different. That apart since the first decision ws not on its merits; doctrine of res judicata as envisaged in Section 11 of the Code does not apply. Impugned order does not call for a y interference
Petition is dismissed.
INDERMEET KAUR, J.
AUGUST 04, 2011 nandan
'I.
2011:DHC:8807
JUDGMENT