2018 (1) TMI 1758 - HC - Indian Laws

Seeking a direction that the defendant no.1 should pay pendente lite charges for use and occupation of the suit property - Order XXXIX Rule 10 CPC - HELD THAT - The principles with respect to disposal of an application under Order XXXIX Rule 10 CPC have been stated by a learned Single Judge of this Court Hon ble Mr. Justice A. K. Sikri (as he then was) in the judgment in the case of Harish Ramchandani vs. Manu Ramchandani Ors. 2001 (4) TMI 960 - DELHI HIGH COURT . It has been held in this judgment that for the provisions of Order XXXIX Rule 10 CPC to apply it would be necessary that the principles contained in Order XII Rule 6 CPC are also satisfied. There is a live issue which has to be decided in the suit at the stage of final arguments of defendant no.1 being or not the owner of the suit property. If the Will dated 01.03.1999 of the mother late Smt. Madhurekha Sarin is proved by defendant no.1 then he will become the owner of the suit property. This is a disputed fact on which trial will be held in terms of issue no.6 framed and thus there are no admissions that defendant no.1 is not the owner of the suit property and that the plaintiff and defendant no. 2 are also the co-owners. Principles contained in Order XII Rule 6 CPC are thus not satisfied and this Court therefore cannot pass an order under Order XXXIX Rule 10 directing the defendant no.1 to pay or deposit any amount or give any security in the form of a bank guarantee as prayed in this application. Conclusion - Clearly therefore this application is wholly misconceived and is ex facie hit by the doctrine of res judicata/finality that a litigant cannot file an application for the same relief although a similar application was filed earlier and was dismissed and the dismissal order was not challenged with the fact that the order of the Division Bench of this Court dated 07.08.2013 is not an order on merits setting aside the judgment passed by a learned Single Judge of this Court dated 26.11.2012. This application is therefore completely misconceived and an abuse of process of law. This application is dismissed with costs of Rs.20, 000/- payable by the applicant to the counsel for the defendant no.1.

Summary

ISSUES PRESENTED and CONSIDERED

The core legal issues considered in this judgment include:

1. Whether the application under Order XXXIX Rule 10 of the Code of Civil Procedure (CPC) seeking pendente lite charges for use and occupation of the suit property should be granted.

2. Whether the principles of Order XII Rule 6 CPC, which require sufficient admissions by the defendant, are satisfied to warrant an order under Order XXXIX Rule 10 CPC.

3. Whether the doctrine of res judicata applies, preventing the filing of a new application based on the same facts as a previously dismissed application.

4. The impact of the Division Bench's order dated 07.08.2013 on the current application and whether it constitutes a fresh cause of action.

ISSUE-WISE DETAILED ANALYSIS

Issue 1: Application under Order XXXIX Rule 10 CPC

The relevant legal framework involves Order XXXIX Rule 10 CPC, which allows the court to order a party to deposit money or deliver something capable of delivery if it admits holding it as a trustee for another party. The Court examined whether the conditions for applying this rule were met, particularly in light of the alleged Will dated 01.03.1999, which was claimed to be executed by the deceased mother in favor of defendant no.1.

The Court reasoned that the application could only be granted if it was established that defendant no.1 had no title to the suit property and that the Will was invalid. This determination was pending trial, as the issue of ownership was a live issue in the suit, framed as issue no.6.

Issue 2: Principles of Order XII Rule 6 CPC

The Court referred to the judgment in Harish Ramchandani vs. Manu Ramchandani & Ors., which clarified that Order XXXIX Rule 10 CPC requires admissions sufficient under Order XII Rule 6 CPC. The Court found no such admissions by defendant no.1 regarding ownership of the property, as the validity of the Will was yet to be determined. Therefore, the principles of Order XII Rule 6 CPC were not satisfied, precluding an order under Order XXXIX Rule 10 CPC.

Issue 3: Doctrine of Res Judicata

The Court noted that a similar application by defendant no.2 under Order XXXIX Rule 10 CPC had been dismissed previously on 26.11.2012, and the order was not challenged. The Court emphasized that without new facts constituting a fresh cause of action, the current application was barred by the doctrine of res judicata, which prevents re-litigation of the same issue.

Issue 4: Impact of the Division Bench's Order

The applicant argued that the Division Bench's order dated 07.08.2013 provided a fresh cause of action. However, the Court disagreed, stating that the order was a consent order and did not address the merits of the application under Order XXXIX Rule 10 CPC. It did not set aside the previous dismissal order, thus not constituting a new cause of action.

SIGNIFICANT HOLDINGS

The Court held that the application under Order XXXIX Rule 10 CPC was misconceived and dismissed it with costs, emphasizing the following principles:

"An application under Order XXXIX Rule 10 CPC will not lie unless the facts satisfy the requirement of Order XII Rule 6 CPC."

The Court concluded that the application was an abuse of the process of law, as it was barred by res judicata and did not present new facts or a fresh cause of action. The costs of Rs.20,000 were imposed on the applicant, payable to the counsel for defendant no.1.