Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 819 (ALL)

Anokhi Devi v. Babu

2015-04-15

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. Heard learned counsel for the petitioners and learned counsel for the respondent. 2. Learned counsel for the respondent submits that as the entire facts of the case have already come on record, he does not intend to file any counter affidavit, as such, the petition is being disposed of without calling counter affidavit, with the consent of the learned counsel for the parties. 3. Plaintiff-respondent filed a suit for permanent injunction before the Civil Judge ( Sr. Div.), Moradabad, which was registered as Original Suit No. 547 of 2014 on 1.7.2014, valuing the? suit at Rs. 5 lakhs, alongwith an application to grant temporary injunction. Upon application for grant of? temporary injunction, notices alone were issued and no ex-party injunction was granted. The first suit remained pending,? where after a second suit was, filed before the Court of Judge Small Causes, showing the valuation of? suit property? as Rs. 25,000/-, for same relief on 9.7.2014 and in the subsequent suit, an ex-parte interim? injunction was granted? on the date of its filing i.e. 9.7.2014. On the very next day, an application was filed in the first suit, seeking its withdrawal. This withdrawal application has been allowed on 11.9.2014, noticing the stand of the plaintiff-respondent that he is no longer desirous of pursuing the suit. However, while allowing the application, permitting the plaintiff to not press the suit, the trial court has? held that the plaintiff will have no right to institute a fresh suit. 4. In the subsequent suit, wherein an ex-parte injunction was granted, an application under Order-7 Rule-11 CPC has been filed by the defendant-petitioners ,alleging therein that filing of the second suit was not maintainable as a previous suit, for the same relief, was already pending? and the filing of the second suit was a clear example of court hunting by the plaintiff to somehow get an ex-parte order of? injunction.? Submission is that once the plaintiff failed to secure ex-parte injunciton, he filed second suit, in different court, and succeeded in getting ex-parte injunction. Application under Order-7 Rule-11 CPC was filed, stating therein, that once the right of plaintiff-respondent to file fresh suit has been forfeited by the order ofthe court, the second suit was not maintainable. 5. Learned counsel for the plaintiff-respondent submits? that since he got interim injunciton in the second suit, he fairly withdrew the first suit. Application under Order-7 Rule-11 CPC was filed, stating therein, that once the right of plaintiff-respondent to file fresh suit has been forfeited by the order ofthe court, the second suit was not maintainable. 5. Learned counsel for the plaintiff-respondent submits? that since he got interim injunciton in the second suit, he fairly withdrew the first suit. Submission is that valuation of first suit was? wrongly shown and that is why a subsequent suit with lesser valuation was filed. Both the courts below? have rejected the application under Order-7 Rule-11 CPC and the revisional court observed that it was open for the defendant respondent to file written statement and press the issue with regard to the maintainability of the second suit.? 6. Learned counsel for the petitioners places reliance upon the decision of the Apex Court in Saleem Bhai and others Vs. State of Maharashtra and others, (2003) 1 SCC, 557,? wherein it has been held that if on the mere plaint allegations an application under Order-7 Rule-11 CPC is made out, then filing of written statement is not mandatory. Submission? is that application under Order-7 Rule-11 CPC was clearly maintainable.? 7. Having considered the respective submission, this court finds that this is a clear case of? forum hunting by the plaintiff to secure an ex-parte injunction. The facts, which are not in dispute, are that a first suit was filed, upon which notices were issued? on interim injunction application on 1.7.2014 and no ex-parte injunction was granted. Thereafter, a second suit, showing lesser valuation, was filed before a different court and an ex-parte injunction was obtained in the second suit on 9.7.2014, and immediately on the next date, an application was filed in the suit to withdraw it. 8. Learned counsel are in agreement that? the pleadings and relief claimed in both the suits, are one and the same. In case the first suit was filed, showing a higher valuation, an application could have been filed to correct the valuation if it was wrong but filing of second suit was clearly not maintainable. More over, once the right of the plaintiff to file a fresh suit, had been forfeited by the court concerned in the first suit, filing of the second suit was not maintainable. 9. In the opinion of the court, the malafide intent in? More over, once the right of the plaintiff to file a fresh suit, had been forfeited by the court concerned in the first suit, filing of the second suit was not maintainable. 9. In the opinion of the court, the malafide intent in? filing of second suit and securing ex-parte injunction therein, was writ large on the face of the record. Both the courts below have not examined the issue, in its right prospective. Relevant facts and circumstances, which have been noticed above, have been ignored. The aspect of maintainability of the second suit, despite withdrawal of first suit, wherein liberty to file a fresh? has been forfeited, has not been? correctly examined. The issue raised was clearly an issue of jurisdiction? of court itself to try the second suit, which has been erroneously decided, causing failure of justice. In such circumstances, both the? orders dated 9.7.2014 and 11.9.2014? are absolutely erroneous and have occasioned failure of justice for the petitioners. 10. Principle of law is settled that a litigant cannot be permitted to indulge in forum shopping. In Chetak Construciton Ltd. Vs. Om Prakash and others, 1998 (4) SCC, 577 following observations were made : - "Indeed, no lawyer or litigant can be permitted to brow beat the court or malign the presiding officers with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities of justice would become a casualty and Rule of Law would receive a set back. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot, be allowed to "terrorize" or "intimidate" judges with a view to "secure" orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it. We certainly, cannot approve of any attempt on the part of any litigant to go "forum shopping". A litigant cannot be permitted `choice' of the `forum' and every attempt at "forum shopping" must be crushed with a heavy hand". 11. In view of the above, petition succeeds and is allowed. Orders dated 9.7.2014 and 11.9.2014, passed by the courts below are set aside. The matter is remitted back to the trial court? A litigant cannot be permitted `choice' of the `forum' and every attempt at "forum shopping" must be crushed with a heavy hand". 11. In view of the above, petition succeeds and is allowed. Orders dated 9.7.2014 and 11.9.2014, passed by the courts below are set aside. The matter is remitted back to the trial court? to reconsider the objection of the defendant-petitioners filed under Order-7 Rule-11 CPC afresh, after taking note of the facts and circumstances of the case, in accordance with law.