CR No.121 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.121 of 2009 Date of decision: 19.1.2009 Ninder Singh ......Petitioner Versus Charan Kaur and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. S.K. Mahajan, Advocate for the petitioner. * * * Rakesh Kumar Garg, J. By way of this revision petition, the petitioner has challenged the order dated 1.12.2008 passed by the Civil Judge (Junior Division), Amritsar dismissing the application under Order 23 and Order 2 Rules 2 and 3 CPC read with Section 151 CPC for dismissing the suit. Respondent No.1 filed suit for declaration to the effect that she is co-owner and in joint possession of the suit property and further for declaration to the effect that Will dated 13.9.2005 allegedly executed by Jagat Singh in favour of defendant No.1 (petitioner) and defendant No.2 (respondent No.2) was illegal being a forged and fabricated document and mutation No.2625 as per jamabandi for the year 1997-98 of the said land in favour of defendants No.1 and 2 was illegal, with further prayer of permanent injunction restraining the defendants from selling, mortgaging, leasing out or alienating in any manner more than their share in the said land to any person and restraining the defendants from alienating any specific share in the said land till partition by metes and bounds. The petitioner (defendant No.1) filed an application to the effect that previously plaintiff-respondent No.1 had filed a suit against the petitioner in respect of the suit land which was dismissed as withdrawn vide CR No.121 of 2009 2 order dated 5.12.2007 without any permission to file a fresh suit. It has been further averred that the present suit has again been filed by the plaintiff-respondent No.1 for declaration and permanent injunction regarding the same land along with other land which is not maintainable. Upon notice of this application, the plaintiff-respondent filed reply and controverted the allegations made in the application stating that the cause of action in the present suit was different from the previous suit and the application has been filed by the petitioner just to delay the proceedings. The application filed by the petitioner was rejected by the trial Court vide impugned order observing that the plaintiff-respondent has filed the previous suit against the petitioner only whereas the present suit has been filed against respondent No.2 also and the relief claimed in the earlier suit was different than the relief claimed in the present suit and thus, this application was without any merit. Learned counsel for the petitioner has vehemently argued that the present case is hit by the doctrine of Order 2 Rules 2 and 3 CPC and therefore, the same is liable to be dismissed and the trial Court has erred at law while passing the impugned order. I have heard learned counsel for the petitioner. It is not disputed by the counsel for the petitioner that in the earlier suit, the petitioner alone was arrayed as defendant whereas in the present suit respondent No.2 is also made a party. It is also an admitted fact that in the present case, the suit land includes other land also. It could also not be disputed by the petitioner that the previous suit was filed for permanent injunction restraining the defendants from interfering in the peaceful possession of the plaintiff over land measuring 10 marlas out of total land measuring 7 kanals bearing Khasa No.40//13/2.Khewat Khatauni No.50/104 and further restraining the defendants from alienating the land CR No.121 of 2009 3 more than his share whereas the present suit has been filed for declaration to the effect that the plaintiff is co-owner and in joint possession of the land mentioned in the previous suit along with other land. A further declaration has been sought that Will dated 13.9.2005 and mutation No.2625 are illegal, null and void. No doubt, Order 2 Rules 2 and 3 CPC requires that if the plaintiff is entitled to several reliefs against the defendant in respect of the same cause of action, the plaintiff cannot split the claim so as to omit one part of the claim and sue for the other but in the present case it has been noticed by the trial Court that the cause of action in the previous suit accrued on 7.2.2007 when the petitioner attempted to take forcible possession of the suit land whereas in the present suit the cause of action accrued when the plaintiff-respondent No.1 came to know that the petitioner along defendant No.2 had allegedly forged and fabricated the disputed Will. Thus, in view of these facts, provisions of Order 23 and Order 2 Rules 2 and 3 CPC are not applicable in the present case. For the reasons recorded above, I find no merit in this petition and the same is dismissed. January 19, 2009 (RAKESH KUMAR GARG) ps JUDGE