Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

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

J U D G M E N T

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

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  

2

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  

3

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  

4

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,  

5

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.

6

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  

7

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.

8