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Judgment
Krishna Saran Shrivastav, J.—This revision petition is directed against the judgment of the District Judge, Machilipatnam in CMA No. 46 of 1994 reversing the order of the Principal District Munsif, Machilipatnam in LA. No. 756 of 1994 in O.S. No. 165 of 1994.
The plaintiff-firm is the petitioner herein. The firm filed the said LA. for interim injunction against the respondents from opening a Medical Shop or from interferring with the possession an enjoyment of the plaint schedule property. The petitioner alleged that it is a tenant in the plaint schedule shop and by virtue of the agreement Ex.A-2 dated 15-10-1992, the respondents had agroed not to open any shop in the premises belonging to them and situated adjoining to the shop in occupation of the petitioner-firm as their tenant. The respondents have opposed the said I.A on the ground that a similar suit on the same cause of action had been filed by the petitioner-firm and is pending and, therefore, the 2nd suit is barred. In addition to that, they have alleged that the contract evidenced by the document Ex.A-2 is void and, therefore, no relief could be granted to the petitioner.
The trial Court dismissed the IA for injunction, against which, an appeal has been filed before the District Judge, Machilipatnam. The first Appellate Court partly allowed the appeal restraining the respondents from interferring with the possession and enjoyment of the plaint schedule premises to the extent whether the document Ex.A-2 dated 15-10-1992 is void or not shall be decided during the trial and, therefore, he was not inclined to restrain the respondents from starting the business in the newly constructed shop, which is adjoining to the plaint schedule shop (for short'' the subject of dispute). Being aggrieved by the same, the firm has come up in revision.
Having heard the learned Counsel for both the parties, I at length, reach the conclusion that the revision petition has no force and, therefore, it should be dismissed. The reason is that a bare look at the agreement Ex.A-2 dated 15-10-1992 reveals that the respondents have agreed not to run any medical and general stores in the subject of dispute tilt the petitioner is ejected from the plaint schedule property. Section 27 of the Indian Contract Act provides that any agreement restraining the person from exercising his lawful profession of trade or business of any kind is to that extent void. To my mind, permanently restraining the respondents from starting business in the subject of dispute or to restrain them till the petitioner-firm is ejected in due course of law from the plaint schedule property, are not two different things. In other words, it is one and the same thing. No person cannot (sic. can) be restrained to start any business, though it mayor may not be similar to the business of another because it is against the public policy. Thus, it appears that the petitioner-firm has no prima facie case to obtain injunction restraining the respondents from starting the business in the subject of dispute.
It also appears that the cause of action as alleged by the petitioner-firm, are different in the present suit and the earlier suit bearing O.S. No. 68 of 1992. For the simple reason that the present suit is based on the breach of condition of agreement Ex.A-2 dated 15-10-1992, the question as to whether the petitioner-firm has based the suit on similar cause of action or on a new cause of action can be decided only when the parties go to the trial.
For the foregoing reasons, I do not see any material irregularity or error of jurisdiction committed by the First Appellate Court and, therefore, the impugned judgment is not called for any interference.
I may make it clear that whether the clause restraining respondents from starting business of the like nature in the newly built shop adjoining to the plaint schedule property is legal or not is the matter which is to be decided by the trial Court on merits, during trial of the suit, uninfluenced by the observations made by me in the preceding paragraphs.
In the result, the Revision Petition is dismissed as devoid of substance. However, in the cricumstances of the case I leave the parties to bear their own costs in the revision petition.