Allowed

Dalip Singh v. Lal Singh

Himachal Pradesh HC13 Sept 2017CMPMO/296/2016

Case brief

AI extract

What is this about?

This petition allowed under Article 226 set aside the trial court order dismissing the rejection of plaint application. The High Court held the civil suit was not maintainable as the plaintiffs initiated parallel proceedings regarding the same revenue orders before different forums, citing Bank of India vs. Lekhimoni Das. The suit was ordered to be rejected.

What did the court decide?

The order passed by the learned Civil Judge on 28.4.2016 in CMA No. 122-VI/2016 is set-aside and the suit is ordered to be rejected under Order 7 Rule 11 CPC.

Dalip Singh Vs Lal Singh — Civil Procedure and Limitation | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CMPMO No. 296 of 2016 Date of decision: 13.9.2017.

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Dalip Singh		..Petitioner/Defendant No.1.
	Versus
Lal Singh and others		..Respondents/Plaintiffs.

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Co ram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

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Whether approved for reporting? No

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For the Petitioner : Mr. Arjun Lall and Mr. Sanjeev Kumar, Advocates. For the Respondents : Mr. H.S. Rangra, Advocate, for respondents No. 1 & 2.

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Tarlok Singh Chauhan, Judge (Oral)

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This petition under Article 227 of the Constitution of India takes exception to the order passed by learned trial Court whereby the application filed by the petitioner for rejection of the plaint came to be dismissed.

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The petitioner is the defendant No.1, who had moved an application under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure for rejection of the plaint on the ground that the subject matter of the civil suit as also the appeal/revision pending before the Divisional Commissioner, Mandi was same and, therefore, the plaint ought to be rejected.

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It is not in dispute that in the civil suit so filed by the respondents/plaintiffs the main prayer therein was that the orders passed by the revenue authorities, from time to time, be quashed and set-aside. It is also not in dispute that the subject matter of the suit as also the proceedings initiated before the revenue authorities at the time of filing of the suit was the same. Now, therefore, the moot question that arises for consideration is as to whether the two parallel proceedings before two different forums could be initiated by the respondents/plaintiffs.

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The learned trial Court rejected the application without even adverting to the grounds as has been taken in the application and proceeded to determine the application only on the ground whether it discloses cause of action stricto-sensu and after placing reliance upon the judgment of the Bombay High Court in M.V. Sea Success I vs. Liverpool and London Streamship Protection and Indemnity Association Ltd. and another AIR 2002 Bombay 151, held that the plaintiffs had a cause of action. The Court did not at all advert to the question as to whether the plaintiffs/respondents could have assailed the same order before two different forums.

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I have heard learned counsel for the parties and also gone through the material placed on record carefully.

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In Bank of India vs. Lekhimoni Das and others (2000) 3 SCC 640, the Hon’ble Apex Court observed that “as a general principle where two remedies are available under law one of them should not be taken as operating in derogation of the other. It was further held that if a party has elected to pursue one remedy he is bound by it and cannot on

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his failing therein proceed under another provision. It is apt to reproduce the relevant observations as under:

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“8. As a general principle where two remedies are available under law one of them should not be taken as operating in derogation of the other. A regular suit will not be barred by a summary and a concurrent remedy being also provided therefor, but if a party has elected to pursue one remedy he is bound by it and cannot on his failing therein proceed under another provision. A regular suit for compensation is not barred by the omission to proceed under the summary procedure provided under Section 95 CPC, but if an application is made and disposed of, such disposal would operate as a bar to a regular suit, whatever may be the result of the application, There is, however, a difference between conditions necessary for the maintainability of an application under Section 95 CPC and those necessary to maintain a suit. The regular suit is based on tort for abusing the process of court. Under the law of torts in a suit for compensation for the tort the plaintiff must not only prove want of a reasonable or probable cause of obtaining injunction but also that the defendant was attracted by malice which is an improper motive.”

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Indubitably, as already observed above, the proceedings that had been decided by the Assistant Collector, Jogindernagar had already been assailed before the Divisional Commissioner, Mandi and the same were otherwise pending at the time when the suit came to be filed by the plaintiff questioning therein again the order passed by the Assistant Collector, Jogindernagar.

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Therefore, in view of the aforesaid exposition of law, the proceedings before the Civil Court, obviously were not maintainable and

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were liable to be quashed. The order passed by the learned Court below is not legally sustainable and is liable to be set-aside.

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In view of the aforesaid observation, I find merit in this petition and the same is accordingly allowed and the order passed by learned Civil Judge (Jr. Divn.), Jogindernagar, District Mandi, H.P. on 28.4.2016 in CMA No. 122-VI/2016 is set-aside and the suit as filed by the plaintiffs is ordered to be rejected under Order 7 Rule 11 CPC, leaving the parties to bear their own costs. Pending application(s) if any, also stands disposed of. Interim order dated 3.8.2016 is vacated.

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September 13, 2017. (Tarlok Singh Chauhan) (GR) Judge

Dalip Singh v. Lal Singh

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Dalip Singh v. Lal Singh

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