MAHESH CHAND Vs. SUMNESH KUMAR CHATURVEDI

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India impugns the order of the trial court dated 22.2.2014 by which the trial court has dismissed the suit on the ground that the suit is barred under Order IX Rule 8 of the Code of Civil Procedure, 1908 (CPC).

(2.) THE subject suit is a suit for recovery of possession of flat no.2077, DDA Janta Flats, GTB Enclave, Delhi -110093. Petitioner -plaintiff purchased the suit property from one Smt. Devki; who was the mother of the defendant; through registered documents dated 10.2.2006 being agreement to sell, power of attorney, Will etc. The case of the respondent -defendant in getting the preliminary issue framed for dismissal of the suit under Order IX Rule 8 CPC was that Smt. Devki the mother of the defendant had filed a suit for possession being suit no. 97/2005 and which was dismissed on account of non -prosecution by the order of the civil court dated 21.4.2007. It is therefore argued that the subject suit for possession on the same cause of action was not maintainable by the successor -in -interest of Smt. Devki and the only remedy of the petitioner/plaintiff was to apply for restitution of the suit which was dismissed in default on 21.4.2007.

(3.) TRIAL court has relied upon the judgment of the Supreme Court in the case of M/s Parasram Harnand Rao Vs. M/s Shanti Parsad Narinder Kumar Jain, 1980 3 SCC 565 for dismissing the suit by making the following observations: -