C.R. No. 2490 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 2490 of 2010 (O&M) Date of Decision: 27.4.2010. Darshan Singh and others ....Petitioners Versus Gurdeep Singh Toor and others ....Respondents CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. S.K. Singla, Advocate for the petitioners. RAJESH BINDAL, J **** The challenge in the present petition is to the order dated March 2, 2010, passed by the learned Court below whereby the application filed by the petitioners/defendants for framing of issue regarding maintainability of the suit and treat that as preliminary issue, was dismissed. However, while dismissing the application learned Court below had opined that cause of action in the earlier suit filed by respondent No. 1/plaintiff and the present suit, is different. Brief facts of the case are that respondent No. 1/plaintiff filed suit inter-alia seeking declaration claiming share in the joint property. The petitioners are the parents and brother of respondent No. 1. In the written statement filed by the petitioners, a preliminary objection was taken that suit was not maintainable as earlier respondent No. 1/plaintiff had filed a suit claiming joint possession of the same property, which was dismissed in default on April 10, 2007. It was for that purpose that the application was filed for framing issue regarding maintainability of the subsequent suit for the same cause of action and treat the same as preliminary issue, which was dismissed by learned Court below. Learned counsel for the petitioners submitted that the grievance of the petitioners will be satisfied in case finding recorded by the learned Court below regarding cause of action in both the suits being different and that too without framing of issue and recording of evidence, is set aside. Learned Court below had rejected the claim made by the petitioners/defendants regarding maintainability of suit. After hearing learned counsel for the petitioners I find merit in the submissions made. For the view which I am taking, I do not find it necessary to issue notice to respondent No.1/plaintiff as the facts on record establish that while deciding the application filed by the petitioners/defendants for framing and treating the issue regarding maintainability of suit as preliminary, learned Court C.R. No. 2490 of 2010 (O&M) 2 below has recorded a finding regarding the cause of action in both the suits being different. That will certainly prejudice the case set up by defendants/petitioners as issues in the suit are yet to be framed and one of the issues being raised by the petitioners/defendants is regarding maintainability of the suit, the onus to prove the same will certainly fall on them. While rejecting the application for framing of issue and treating the same as preliminary, the Court could not record any final finding thereon and that too without taking the evidence on record with regard to same. Accordingly, while upholding the order regarding framing of issue and treating the same to be preliminary, the findings recorded by learned Court below holding that cause of action in both the suits is different, is set aside. All the issues to be framed shall be decided by learned Court below after the evidence is led by the parties. The revision petition stands disposed of accordingly. (RAJESH BINDAL) 27.4.2010. JUDGE Reema