Sham Kumar Aggarwal vs Royal Orchid Company and Others

L.N. Mittal, J.—Defendant-Sham Kumar Aggarwal has approached this Court by way of instant revision petition filed under Article 227 of the Constitution of India, assailing order dated 23.08.2012 Annexure P-8 passed by learned trial Court thereby dismissing application Annexure P-7 filed by defendant-petitioner under Order 7 Rule 11 read with Section 151 of the CPC (in short, CPC) for rejection of plaint Annexure P-6 instituted by respondents/plaintiffs against the defendant-petitioner. Defendant-petitioner in his application pleaded that previous suit filed by plaintiffs against defendant and others (vide plaint Annexure P-1) was dismissed as withdrawn vide order dated 18.04.2012 Annexure P-3 in view of compromise dated 17.04.2012 Annexure P-2 and therefore, the instant second suit is barred. It was also pleaded that plaintiffs have already filed application for restoration of the previous suit which was still pending and for this reason also, the instant second suit is not tenable.

Learned trial Court vide order Annexure P-8 has dismissed application Annexure P-7 observing that causes of action for the two suits are different. Feeling aggrieved, defendant has filed this revision petition to assail the said order.

I have heard learned counsel for the parties and perused the case file.

Counsel for the petitioner reiterated the version mentioned in application Annexure P-7. Counsel for respondents/plaintiffs contended that instant second suit is for permanent injunction only and if application filed by plaintiffs for restoration of their previous suit is not allowed, then the plaintiffs would be without any remedy if the instant second suit is also not entertained.

I have carefully considered the rival contentions. The previous suit instituted by plaintiffs vide plaint Annexure P-1 was for declaration as well as for permanent injunction. In the second suit instituted vide plaint Annexure P-6, same permanent injunction as claimed in plaint Annexure P-1 (besides declaration) has been sought. Consequently, it cannot be said that the second suit is based on a different cause of action. On the other hand, in view of withdrawal of the previous suit, instant second suit is barred by Order 23 Rule 1(4) CPC. Consequently, plaint Annexure P-6 is liable to rejection.

In addition to the aforesaid, the plaintiffs cannot pursue both remedies simultaneously. They are pursuing their application for restoration of the previous suit and have also filed the instant second suit. This is not permissible. This is abuse of process of the Court. In view of restoration application filed by the plaintiffs for restoration of their previous suit, the instant second suit is not maintainable.

If restoration application moved by plaintiffs for restoration of their previous suit is dismissed and if in that event, the plaintiffs are left without any remedy, nobody else is to be blamed for the same. They allegedly effected compromise Annexure P-2 in the previous suit and they got the suit dismissed a withdrawn vide order dated 18.04.2012. Consequently, instant second suit is barred by Order 23 Rule 1(4) CPC and the plaintiffs cannot be permitted to prosecute the instant second suit on the plea that they would be left without any remedy. For the reasons aforesaid, I find that plaint Annexure P-6 pertaining to instant suit is liable to rejection under Order 7 Rule 11 CPC being barred by law i.e. Order 23 Rule 1(4) CPC. Impugned order of the trial Court suffers from illegality and jurisdictional error. Accordingly, the instant revision petition is allowed. Impugned order Annexure P-8 passed by the trial Court is set aside. Application Annexure P-7 filed by defendant-petitioner under Order 7 Rule 11 read with Section 151 CPC for rejection of plaint Annexure P-6 is allowed and accordingly plaint Annexure P-6 filed by respondents/plaintiffs stands rejected. However, nothing in this order shall have any bearing on merits of the application moved by the plaintiffs for restoration of their previous suit and on merits of the said suit, if restored.