Research › Browse › Judgment

Allahabad High Court · body

1992 DIGILAW 515 (ALL)

Akay Organics Private Limited v. Oil and Natural Gas Commission

1992-04-15

MARKANDEY KATJU, R.A.SHARMA

body1992
JUDGMENT : R.A. Sharma, J. The Petitioner has filed this writ petition for a writ of certiorary for quashing the contract executed in favour of the Respondents 3 to 5 by Respondents 1 and 2. Consequential reliefs in connection there with have also been prayed for. 2. For the same relief, which has been claimed in this writ petition, the Petitioner has filed a civil suit No. 70 of 1992 in the court of the learned Civil Judge, Dehradun on 12-2-1992 and in that suit an application for interim injunction was filed on 21-2-1992. On 21-2-1992 itself the learned Civil Judge declined to grant exparte interim injunction and merely issued notices to the Defendants. On 3-3-1992 the Petitioner made an application before the learned Civil Judge for withdrawal of the suit. The contents of this application are reproduced below; The delay caused in the hearing of the injunction matter has frustrated the object of the suit. It is, therefore, prayed that the Plaintiff be permitted to withdraw the suit. This application was allowed on 3-3-1992 and the learned Civil Judge dismissed the suit as withdrawn by the following orders. "Suit stands dismissed as withdrawn". 3 Before withdrawing the suit, the Petitioner prepared the instant writ petition on 29-2-1992, as is clear from the rate on which the affidavit in support of this writ petition was sworn. It was presented before the Stamp Reporter of this Court on 3 3-1992 and was filed before the Joint Registrar on 4-3-1992 and was taken up by a Division Bench of this Court on the next day. From the facts, as narrated above, it is clear that before moving the application for withdrawal of the civil suit, the Petitioner had prepared the writ petition and presented before the Oath Commissioner of this Court on 29-2-1992 and before the Stamp Reporter of this Court on 3-3- 1992. 4. As for the same relief, which has been claimed in the writ petition, the Petitioner has already taken recourse to another forum, namely, Civil Court, this writ petition cannot be entertained. It is open to a litigant to choose his forum for redress of his grievances but having once chosen the forum, it is not open to him to give it up without any rhyme or reason and to take recourse to another forum. 5. It is open to a litigant to choose his forum for redress of his grievances but having once chosen the forum, it is not open to him to give it up without any rhyme or reason and to take recourse to another forum. 5. In this connection reference may be made to the case of The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, (1976) 1 SCC 496 , wherein the Supreme Court laid down as follows: But where the industrial dispute is for the purpose of enforcing a right, obligation or liability under the general law or the common law and not a right, obligation or liability created under the Act, then alternative forums are there giving an election to the suit or to choose his remedy of either moving the machinery under the Act or to approach the civil court. It is plain that he cannot have both. He has to choose the one or the other. In Sheo Nath Dubey v. District Inspector of Schools and Ors. Writ Petition No. 10524 of 1978, decided on 28-9-1985. a Division Bench of this Court had to consider some-what similar controversy. In that case the suit of the Petitioner therein was dismissed for want of prosecution and thereafter writ petition was filed for the same relief, which was claimed in the suit. This Court dismissed the writ petition on the ground of the principles contained in Order IX Rule 9 of the Code of Civil Procedure. This Court laid down as under: To the filing of the writ petition, the principle of Order IX Rule 9 applied. In the view of the applicability of the principle, the present writ petition was barred. It is true that Order IX Rule 9 applies to a civil suit in terms but, as stated above Order IX Rule 9, being behind the idea that no body should be harassed unnecessarily by fresh proceedings one after the other, would apply to the maintainability of the writ petition also. The other ground on which the writ petition of Sheo Nath Dubey (supra) was dismissed, was the doctrine of election and public policy, i.e. a person having elected to seek redress of his grievances in a civil court cannot be permitted to give it up and then to file a writ petition for the same relief. The other ground on which the writ petition of Sheo Nath Dubey (supra) was dismissed, was the doctrine of election and public policy, i.e. a person having elected to seek redress of his grievances in a civil court cannot be permitted to give it up and then to file a writ petition for the same relief. The relevant extract from the aforesaid decision of this Court is quoted below: Independently of the doctrine of election, the question of the sound exercise of judicial discreation is that having chosen the remedy of filing a suit, the Petitioner had the benefit of a meaningful hearing of the lis therein. He cannot be permitted to harass a party by changing the forum of court from one to another. Judicial discreation requires the rejection of the writ petition on that ground. 6. Against the decision of this Court in Sheo Nath Dueby's case (Supra) SLP was dismissed by the Supreme Court on 13-1-1986. 7. Learned Counsel for the Petitioner in the end has however, argued that the Petitioner has withdrawn the suit because it was not possible to pursue it in view of the strike of the Advocates of District Courts and on account of this reason this writ petition has been filed It is not possible to agree with the learned Counsel. From the perusal of the application for withdrawing the suit, the contents of which have been quoted here-in-before, the reason given for withdrawing the suit was delay caused in the hearing of the injunction matter. The interim injunction application was filed by the Petitioner before the Civil Judge on 21-2-1992 and on. that very day the Civil Judge passed an order holding that it is not a fit case for granting the exparte interim injunction without hearing the other side and on that basis merely issued notice on the said application. The strike by the Advocates of the District Courts was not the reason for delay in the hearing of the injunction application and was also not the reason for withdrawing the suit. That apart, the strike of the Advocates was only for few days, as is clear from the order sheet, which has been placed before us by the learned Counsel for the parties. That apart, the strike of the Advocates was only for few days, as is clear from the order sheet, which has been placed before us by the learned Counsel for the parties. It may also be restated, as mentioned above, that the Petitioner has already presented the writ petition before the Oath Commissioner of this Court on 29-2-1992 and filed it before the Stamp Reporter on 3-3-1992. It appears that as the Civil Judge was not inclined to grant exparte interim injunction, the writ petition was prepared and filed and apprehending that the party cannot pursue two parallel remedies for the same relief, application for withdrawing the suit was filed before the Civil Judge on 3-3-1992 without seeking any permission for filing a fresh civil suit or for pursuing any other remedy. When the civil suit is withdrawn without permission to file the fresh suit, filing of the new suit is prohibited in view of Order XXIII Rule 1 of the Code of Civil Procedure. Petitioner, in our opinion, has given up the remedy of civil suit, which was already availed of by him, without any justification. To entertain his writ petition, in these circumstances, would be against the public policy. The Petitioner cannot be permitted to harass the party by changing the forum from one court to another As laid down by a Division Bench of this Court in the case of Sheo Nath Dubey (supra), the sound exercise of judicial discretion is that the writ petition should not be entertained and should be rejected. 8. We however, give a liberty to the Petitioner to move an application before the learned Civil Judge, before whom the aforesaid suit was filed, for recalling the order dated 3-3-1992, whereby the suit was dismissed as withdrawn. In case such an application is made before the Civil Judge, the learned Civil Judge will recall the order dated 3-3-1992, and will restore the suit to its original number. It will also be open to the Petitioner old move a fresh application for interim injunction or pursue the same to application for interim injunction and the learned Civil Judge will dispose of those application expeditiously in accordance with law. 9. For the reasons given above, the writ petition is dismissed. 10. A certified copy of this order may be given to the learned Counsel for the Petitioner within a week on payment of usual charges.