Dismissed

Gulkand Hues Pvt. Limited Th.Its Director and Anr. v. Anita Mehta

J&K HC1 Sept 2025CM(M)/358/2025

Case brief

AI extract

What is this about?

Defendants challenged orders granting exemption from pre-institution mediation and refusing rejection of a landlord's eviction suit. The High Court held the exemption conformed to Yamini Manohar, no appeal lay against such interlocutory order, and dismissed the Article 227 petition.

What did the court decide?

Petition and connected applications dismissed; interim directions vacated; record remitted to trial court.

Gulkand Hues Pvt. Limited Th.Its Director and Anr. Vs Anita… — Property and Title | J&K HC (2025)

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S. No. 69

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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR

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CM(M) No. 358/2025 CM No.5395/2025

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GULKAND HUES PVT LIMITED TH.ITS DIRECTOR AND ANR.

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…Petitioner(s)

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Through: Mr. A. H. Naik, Sr. Advocate with

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Mr. Zia Shah, Advocate.

Vs.

ANITA MEHTA

...Respondent(s)

Through: Mr. Mohsin Qadri, Sr. Advocate with

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Mr. Faheem Shah, Advocate.

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CORAM:

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HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE

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O R D E R (ORAL)

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01.09.2025

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The petitioners herein have invoked Supervisory jurisdiction of this Court, enshrined under Article 227 of the Constitution of India, seeking quashing of order dated 08.12.2022 and order dated 05.04.2025, passed by the court of Additional District Judge (Bank Cases) Srinagar, Designated Commercial Court (hereinafter for short “the trial court”) in case suit titled as “Anita Mehta vs. Gulkand Hues Private Ltd and Anr.”

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Facts emerging from the record available on the file would reveal that plaintiff/respondent herein filed a suit for eviction, possession, recovery of unpaid profits, rendition of accounts and permanent injunction against the defendants/petitioners herein, on the premise that the plaintiff/respondent herein, being owner of the premises known as “Mehta Building” located behind Mughal Darbar Residency Bund Road, Srinagar, part with a portion thereof located on the 2^nd floor with the defendant/petitioner 2 herein, upon a representation made by the husband of the said defendant/ petitioner 2 herein upon various terms and conditions set out in an agreement dated 01.06.2016 wherein the said premises defendant/petitioner 2 herein commenced an operation of a restaurant/cafeteria under the brand of “TEA ROOM AND CHAI JAAI” with effect from 01.06.2016, however, the

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defendant/petitioner 2 herein, taking undue advantage of the nonavailability of the plaintiff/respondent herein in Kashmir on account of the ailing health and death of her husband, started making defaults in the payment of revenue shares qua the premises i n terms of the agreed terms and conditions contained under clause 3.1 of the agreement thereof, and also ignored the request of the plaintiff/respondent herein to share the books of accounts as per the agreed terms in order to ascertain her share of profits, so much so, also failed to make payments as well thereof and thereby committed breach of the agreed terms and conditions set out in the agreement dated 01.06.2016 which breach compelled the plaintiff/respondent to serve a legal notice upon the defendants/petitioners herein through her advocate on 10.06.2019, informing the defendants/ petitioners herein that owing to the defaults and breaches of the terms and conditions contained in the agreement, the said agreement stands terminated and consequently called upon the defendants/petitioners herein to vacate the premises in question and that the defendants/petitioners, despite receiving the said legal notice, did not respond to the same and instead instituted a suit for specific performance and permanent injunction against the plaintiff/respondent herein before the court of Munsiff Srinagar, wherein on 29.07.2019 an interim order of status-quo came to be passed which order came to be challenged by the plaintiff/respondent herein in an appeal before the court of Additional District Judge, Srinagar, wherein the said interim order dated 29.07.2019 came to be stayed and that without prejudice to the same, the plaintiff/respondent herein yet again got a legal notice dated 29.10.2020 issued against the defendants/petitioners herein through her advocate calling upon them to rectify the breaches committed qua the agreement dated 01.06.2016 as also for removal of illegal encroachment of the premises and also to pay share of profits, and that despite duly receiving the said notice the defendants/petitioners did not comply with the same and in the reply thereto instead lodged a frivolous claim against the plaintiff/ respondent herein, and upon the receipt of the said reply inasmuch as the intention thereof expressed therein, the plaintiff/respondent herein invoked the “arbitration clause” contained in the agreement dated 01.06.2016 by service of a

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notice dated 26.11.2019 upon the defendants/petitioners herein for appointment of a sole arbitrator which notice despite service upon the defendants/petitioners was neither replied nor they consented to the appointment of the arbitrator, whereafter the plaintiff/respondent herein filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 being A.A No.12/2020 before this Court seeking therein multiple reliefs including for appointment of a receiver for taking the possession of Book of Accounts, Audited Balance Sheet, and other financial documents of the business concern for the period 01.06.2020, wherein this Court vide order dated 30.12.2020 directed the defendants/petitioners herein to file the financial statements of the business concern ‘CHAI JAAI’ for the period 01.06.2020 onwards under the supervision of Joint Registrar (Judicial), High Court of J&K and Ladakh, Srinagar, and that in terms of the said direction passed by this Court the defendants/petitioners herein filed a financial statements of the business concern ‘CHAI JAAI’ for the period 2016-2020 with Joint Registrar (Judicial) of this Court with a copy to the plaintiff/respondent herein and upon perusal of which it got revealed that the defendants/petitioners herein had suppressed the actual revenue and also fudged entries to show lower profits to usurp the money which the plaintiff/respondent herein was entitled to, whereafter, plaintiff/respondent herein also filed an application under Section 11 of the Arbitration and Conciliation Act, 1996, before this Court, seeking therein the appointment of a sole arbitrator for adjudication of the claims of the plaintiff/respondent herein to which prayer defendants/petitioners failed to respond and consequently this Court in terms of order dated 27.06.2022, appointed an arbitrator, aggrieved of which order the defendants/petitioners preferred a Special Leave Petition No.1495/2022 before the Apex Court which petition however, came to be disposed of with the consent of the parties and while setting aside the order of the appointment of arbitrator dated 27.06.2022, not on merits, the matter came to be remitted to the civil court concerned with the request to expedite the hearing of the suit and that, consequent to the passing of the said order by the Apex Court, the appointment of the arbitrator appointed by this Court got terminated whereafter plaintiff/respondent

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herein instituted the suit supra wherein the instant petition has arisen and a longside the said suit, also filed an application under Order 39 Rule 1, 2 and 3 CPC, under Order 39 Rule 10 CPC, under Order 40 Rule 1 CPC, as also an application under Section 12-A of the Commercial Courts Act 2015, (for short “the Act of 2015”) stating therein the said application, inter alia, that in the suit, plaintiff/ respondent herein is seeking urgent relief in view of the facts pleaded, which cannot await the filing and outcome of Pre-Institution Litigation Mediation under Section 12-A of the Act, and that, plaintiff/respondent herein has a prima facie case, as also balance of convenience in her favour as against the defendants/petitioners, and that in case leave is not granted, grave loss and injury would be caused to the plaintiff/respondent herein.

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Upon the institution of the suit supra along with the aforesaid applications the trial court in terms of order dated 08.12.2022, while dealing with the application of plaintiff/respondent filed under Section 12-A of the Act of 2015 in the first instance, held that the suit contemplates an urgent interim relief and concluded that the PreInstitution Litigation Mediation under Section 12-A of the Act of 2015 is exempted in favour of the plaintiff/respondent herein and the trial court , simultaneously proceeded to deal with the applications accompanying the suit filed under Order 39, Rules 1, 2 and 3, and consequently, while dispensing with the issuance of prior notice under Order 39, Rules 3 CPC, as an interim measure and subject to objections restrained the defendants/petitioners herein from creating 3^rd party interest in respect of the suit premises providing further a liberty to the defendants/petitioners herein to seek modification/ alteration/vacation of the said order by or before the next date viz 24.12.2022.

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The defendants/petitioners herein, challenged the grant of exemption under Section 12-A of the Act of 2015 in CM(M) No.158/2024 before this Court, however, withdrew the same on 22.05.2024 with liberty to approach the trial court, however, did not contest the application for interim relief either by filing objections thereto or seeking vacation/modification of the interim order by laying an independent application and instead chose to file an application under Order 7

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Rules 11, CPC before the trial court seeking rejection of the plaint fundamentally on the ground that the suit is barred by law, in view of the applicability of Pre-Institution Mediation as contained in Section 12-A of the Act of 2015, not having been taken recourse to by the plaintiff/respondent herein before the institution of the suit supra. The said application came to be contested by the plaintiff/respondent herein before the trial court and after considering the said application as well as objections filed thereto by the plaintiff/respondent herein the trial court in terms of order dated 05.04.2025, dismissed the said application holding that the suit is maintainable, aggrieved whereof the defendants petitioners herein have challenged the said order dated 05.04.2025 as also the initial order dated passed by the trial court 08.12.2022 in the instant petition.

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Following grounds of challenge in the instant petition have been urged by the defendants/petitioners qua the aforesaid orders dated 08.12.2022 and 05.04.2025: -

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A. Because, the Ld. Trial Court failed to consider that the present suit is barred under Section 10 CPC as the matter directly and substantially in issue is already pending adjudication before the 1st Additional Munsiff, Srinagar, in a previously instituted suit by the Petitioners, and the outcome of that suit would operate as res sub-judice for the present proceedings. The impugned order overlooks the mandatory requirement of pre-institution mediation under Section 12A of the Commercial Courts Act, which is a statutory precondition to filing the suit. The Respondent did not make out a prima facie case for urgent interim relief to seek exemption from such mediation, contrary to the binding precedent laid down in M/s Patil Automation v. Rakheja Engineering Pvt. Ltd. (SLP(C) No. 5737/2022). The Ld. Trial Court failed to consider that the Hon'ble Supreme Court, vide order dated 05.09.2022, directed expeditious hearing of the already pending civil suit between the parties and did not authorize institution of fresh litigation by the Respondent. A suit for specific performance and injunction filed by the Petitioners is already pending, in which a stay order dated 29.07.2019 restraining the Respondent from interfering with Petitioners' possession is in force and was upheld by the appellate court on 04.07.2024. The suit was filed without proper service on the Petitioners, and the court proceeded exparte without resorting to substituted service, despite incorrect and misleading address details furnished by the Respondent. This violates principles of natural justice and fair hearing. The Respondent deliberately failed to implead her sons Hemant Mehta and Dushyant Mehta, who are asserting ownership claims over the suit premises and have initiated separate civil litigation. Their non-joinder violates Order 1 Rule 10(2) and the law laid down in Kasturi v. Iyyamperumal (2005) 6

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SCC 733. The plaint discloses no valid cause of action against the Petitioners and is a classic case of vexatious litigation. The Ld. Trial Court failed to exercise its mandatory duty under Order 7 Rule 11 CPC to reject such suits at the threshold. The impugned order is arbitrary, perverse, discriminatory, and contrary to settled law, and if allowed to stand, will result in gross miscarriage of justice.

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B. That the learned Trial Court erred in holding that the issues raised by the Petitioner(s) could only be considered after trial, whereas the very purpose of Order 7 Rule 11 is to filter out legally untenable suits at the threshold without prolonging unnecessary litigation. Because the impugned order fails to consider the settled legal principle that a plaint must be rejected if, on a plain reading, it fails to disclose a cause of action or is barred by law, irrespective of the defence raised by the opposite party.

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C. Because, the Ld. district court has erroneously entertained the Suit and issued notice, in an arbitrary manner allowed dispensation of premediation proceedings as mandated under Section 12A of Commercial Courts Act, 2015 which obligates the Respondent for pre-institution mediation prior to filing of Suit under Commercial Courts Act, 2015 against the Petitioner.

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D. Because, the Ld. Trial Court failed to consider that, Respondent(s) have not made out the prima facie case for urgent interim relief for dispensation of Section 12A of Commercial Courts Act, 2015 and have filed the suit in utter disregard to the to the precedent laid down by the Hon'ble Supreme Court in M/s Pasil Automation vs. Rakheja Engineerings Pvt. Ltd., in SLP (C)No. 5737 of 2022) ALONG WITH SPECIAL LEAVE PETITION (C) Diary No.29458 of 2021, wherein the Hon'ble Supreme Court of India has categorically held that unless there is a request for interim relief, pre-institution mediation is mandatory before filing any suit before the commercial courts.

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E. Because, the Trial court failed to appreciate and also ignored the onLitigation which is already pending adjudication between the parties and perversely entertained institution of fresh suit, completely overlooking the fact, that a suit for specific performance and injunction is already pending adjudication which was filed by the Respondent under Specific Relief Act, 1963 in which the same issue has been adjudicated upon and there existed a stay order against the Respondent which is still continuing, for not interfering with the peaceful possession of the Petitioner(s) qua the said premises. Because the Ld. Trial Court failed to nciate that the cause of action, if any, had already merged in previous litigation, and the fresh suit amounts to a collateral attack on previous judicial proceedings and interim orders protecting the Petitioners' possession and business.

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F. Because, the Ld. District Court failed to consider that the Hon'ble Supreme Court in the SLP directed the parties to expedite the hearing of the existing litigation going on before the Civil court. The Hon'ble Supreme court never directed the Respondent to institute fresh litigation

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against Petitioner(s), the relevant extracts from the order are reproduced herein below for your ready reference:-

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.."remit the matter to the civil court concerned with a request to expedite the hearing of the suit......."

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G. Because, the Ld. District court failed to appreciate that in the Suit for eviction, the Respondent with ulterior motives has deliberately not impleaded her sons i.e. Hemant Mehta and Dushyant Mehta, as parties in the present suit, although, there is an internal dispute between the Respondent and both her sons, who are asserting ownership rights over the property for which, one of the sons (Hemant Mehta) of the Respondent filed a Civil Suit against her own mother (the Respondent), his own brother (Dushyant Mehta) and Petitioner(s) herein seeking to restrain them from using a portion of the said Premises, where the office, gallery and toilet of Petitioner(s) is located, after having illegally taken it by force and beating up the staff of the Petitioner(s) on the basis of the forged will dated 02.01.2016 and obtaining protective orders from the Ld. Court, as detailed above.

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H. Because, the District court has failed to consider that both the sons of the Respondent are necessary and proper parties, which ought to have been impleaded as a party in the suit. It is imperative to note that the powers granted to a court regarding joining of parties are very wide and extensive under Rule 10(2) of Order 1 and the following two considerations must be borne in mind while exercising these powers: (i) The plaintiff is dominus litis i.e. he is the best judge of his own interest. Therefore, it is upon the plaintiff to choose his opponent from whom relief is claimed. Ordinarily, the court should not compel the plaintiff to fight against a person whom he does not desire to fight and from whom he claims no relief; and (ii) If the court is satisfied that presence of a particular person is necessary to effectively and completely adjudicate all the disputes between the parties, irrespective of the wishes of the plaintiff, the court may exercise the power and join a person as a party to the suit.

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I. Because, the impugned order and other consequential orders are against the principles laid down by the Hon'ble Supreme court in Kasturi v. lyyamperumal, (2005) 6 SCC 733 has laid down Two (2) tests for determining the question whether a particular party is a necessary party to a proceeding, (i) there must be a right to some relief against such party in respect of the matter involved in the proceeding in question; and (ii) it should not be possible to pass an effective decree in absence of such a party.

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J. Because, the impugned order is in utter disregard of the settled law and is also against the principles of natural justice. Further, the order is perverse, contrary to law, and unsustainable, and warrants interference by this Hon'ble Court in exercise of its Supervisory jurisdiction under Article 227 of Constitution of India.

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K. Because, the impugned order is erroneous, whimsical, capricious, discriminatory, and hence bad in law and liable to be set aside.

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L. Because, if the impugned order and other consequential orders are not deprecated and is allowed to stand, grave travesty and miscarriage of justice would be caused to the Petitioner.

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M. Because, the impugned order and other consequential orders for the aforesaid reasons and grounds is wrong, incorrect, untenable and therefore liable to be set aside.

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N. Because, the impugned order and other consequential orders, is bad in law and may kindly be quashed/set-aside, the Petitioner craves leave of this Hon'ble Court to take other additional grounds in furtherance of the present petition for demonstrating the infirmities, discrepancies and illegalities in the Impugned Order.

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O. The Petitioner herein reserves its right to add, alter or amend such further and other grounds/arguments during the proceedings as may be available to them in the present petition, with the leave of this Hon'ble Court.

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P. The Petitioner states and submits that unless the reliefs as prayed for herein are granted, the Petitioner shall suffer gra injustice, irreparable loss and serious prejudice.

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Q. The Petitioner most humbly submits, there is no other alternative equally efficacious remedy and the reliefs sought for herein, if granted, would be adequate and efficacious.

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R. The Petitioner has not moved before this Hon'ble Court or any other court earlier for the self-same reliefs in the instant manner.

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S. The Petitioner states that the Petitioner has approached this Hon'ble Court at the earliest and there is no delay or laches on the part of the Petitioner in filing the present Petition. That the petitioner has applied for the certified copies of the impugned order on 09.04.2025 and the same was scheduled to be provided to the petitioner on 19.05.2025.

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T. The Petition is made bona-fide and in the interests of justice.

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U. That the requisite court fees have affixed along with the present Petition

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V. That the petition is supported by a duly sworn affidavit.

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Heard counsel for the parties and perused the record.

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Before proceeding to advert to the legality or otherwise of the impugned orders a reference to the following provisions of the Act of 2015, being relevant and germane to the controversy becomes imperative: -

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8. Bar against revision application or petition against an interlocutory

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order.—

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Notwithstanding anything contained in any other law for the time being in force, no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court, including an order on the issue of jurisdiction, and any such challenge, subject to the provisions of section 13, shall be raised only in an appeal against the decree of the Commercial Court.

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A bare perusal of Section 8 supra suggests that it puts a bar for filing of a revision application or petition against interlocutory order of a Commercial Court including an order of jurisdiction.

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12-A. Pre-Institution Mediation and Settlement—

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(1) A suit, which does not contemplate any urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government.

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(2) The Central Government may, by notification, authorize the Authorities constituted under the Legal Services Authorities Act, 1987 (39 of 1987), for the purposes of pre-institution mediation.

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(3) Notwithstanding anything contained in the Legal Services Authorities Act, 1987 (39 of 1987), the Authority authorised by the Central Government under subsection (2) shall complete the process of mediation within a period of three months from the date of application made by the plaintiff under sub-section (1):

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Provided that the period of mediation may be extended for a further period of two months with the consent of the parties:

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Provided further that, the period during which the parties remained occupied with the pre-institution mediation, such period shall not be computed for the purpose of limitation under the Limitation Act, 1963 (36 of 1963)

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(4) If the parties to the commercial dispute arrive at a settlement, the same shall be reduced into writing and shall be signed by the parties to the dispute and the mediator.

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(5) The settlement arrived at under this section shall have the same status and effect as if it is an arbitral award on agreed terms under sub-section (4) of section 30 of the Arbitration and Conciliation Act, 1996 (26 of 1996).]

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Insofar as the ambit and scope of Section12-A is concerned, the Apex Court in case titled as “Yamini Manohar v. T.K.D, Keerthi”, reported in 2024 (5) SCC 815 has at Paragraphs 3, 5, 6 and 10 held as under.

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3 . This Court in “Patil Automation Private Limited and Ors. v. Rakheja Engineers Private Limited.” has held that Section 12A of the CC Act is mandatory. Pre-litigation mediation is necessary, unless the suit contemplates urgent interim relief. At the same time, the judgment observes:

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“100. In the cases before us, the suits do not contemplate urgent interim relief. As to what should happen in suits which do contemplate urgent interim relief or rather the meaning of the word ‘contemplate’ or urgent interim relief, we need not dwell upon it. The other aspect raised about the word ‘contemplate’ is that there can be attempts to bypass the statutory mediation under Section 12-A by contending that the plaintiff is

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contemplating urgent interim relief, which in reality, it is found to be without any basis. Section 80(2)CPC permits the suit to be filed where urgent interim relief is sought by seeking the leave of the court. The proviso to Section 80(2) contemplates that the court shall, if, after hearing the parties, is satisfied that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to the court after compliance. Our attention is drawn to the fact that Section 12-A does not contemplate such a procedure. This is a matter which may engage attention of the lawmaker. Again, we reiterate that these are not issues which arise for our consideration. In the fact of the cases admittedly there is no urgent interim relief contemplated in the plaints in question.”

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5 . Section 12A of the CC Act does not contemplate leave of the court, as is clear from the language and words used therein. Nor does the provision necessarily require an application seeking exemption. An application seeking wavier on account of urgent interim relief setting out grounds and reasons may allay a challenge and assist the court, but in the absence of any statutory mandate or rules made by the Central Government, an application per se is not a condition under Section 12A of the CC Act; pleadings on record and oral submissions would be sufficient.

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6 . The words used in Section 12A of the CC Act are - “A suit which does not contemplate any urgent interim relief”, wherein the word “contemplate” connotes to deliberate and consider. Further, the legal position that the plaint can be rejected and not entertained reflects application of mind by the court viz. the requirement of ‘urgent interim relief’.

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10 . We are of the opinion that when a plaint is filed under the CC Act, with a prayer for an urgent interim relief, the commercial court should examine the nature and the subject matter of the suit, the cause of action, and the prayer for interim relief. The prayer for urgent interim relief should not be a disguise or mask to wriggle out of and get over Section 12A of the CC Act. The facts and circumstances of the case have to be considered holistically from the standpoint of the plaintiff. Non-grant of interim relief at the ad-interim stage, when the plaint is taken up for registration/admission and examination, will not justify dismissal of the commercial suit under Order VII, Rule 11 of the Code; at times, interim relief is granted after issuance of notice. Nor can the suit be dismissed under Order VII, Rule 11 of the Code, because the interim relief, post the arguments, is denied on merits and on examination of the three principles, namely, (i) prima facie case,(ii) irreparable harm and injury, and (iii) balance of convenience. The fact that the court issued notice and/or granted interim stay may indicate that the court is inclined to entertain the plaint.

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Section 13. Appeals from decrees of Commercial Courts and Commercial Divisions.—

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(1) [Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order.

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(1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order:

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Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996).]

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(2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act

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What emanates from above is that Section 13 supra provides for the remedy of a statutory appeal from decrees of Commercial Courts and Commercial Divisions. While Sub-Section (1) of Section 13 provides for such remedy of appeal against a judgment or order of a Commercial court below the level of a District Judge to the Commercial Appellate Court within a period of sixty days from the date of such judgment or order, Sub Section (1-A) as well, provides for such remedy of appeal against judgement or order of a Commercial Court at the level of District Judge or Commercial Division of a High Court to the Commercial Appellate Division of such High Court within a period of sixty days from the date of such judgement or order. However, to the said Sub Section (1-A), an exception is carved out by the proviso to go on to state that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of CPC and Section 37 of the Arbitration and Conciliation Act, 1996, therefore, manifestly suggesting that orders that are not specifically enumerated under Order XLIII CPC would therefore, not be appealable and appeals that are mentioned in Section 37 of the Arbitration and Conciliation Act, 1996 alone are appeals that can be made to the Commercial Division of a High Court.

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Keeping in mind the aforesaid provisions of the Act of 2015 inasmuch as the law laid down by the Apex Court in case of “ Yamini Manohar” supra and reverting to back to the case in hand, record

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indisputably tends to show that the trial court, while considering the application of the plaintiff/respondent herein, for exemption from PreInstitution Mediation and Settlement filed alongside the suit (“Though the filing of such an application according to the judgment passed in Yamini Manohar supra by the Apex Court has been held to be not mandatory or sine-qua-non for institution of suit pertaining to the commercial dispute”) has taken into consideration the nature and subject matter of suit, the cause of action and the prayer of the interim relief made in the application for interim relief and consequently allowed the institution of the suit of the plaintiff/respondent herein without Pre-Institution Mediation while exercising its discretion and thereafter simultaneously passed the interim order in the application for interim relief, subject to objections, after dispensing with the requirement of issuance of a prior notice envisaged under Order 39, Rule 3 CPC and also provided liberty to the defendants/ petitioners herein to seek modification/vacation/alteration of said ex-parte interim order.

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Record also tends to show that the defendants/petitioners herein though have had challenged the said order of the trial court dated 08.12.2022 qua the exemption from Pre-Institution Mediation and Settlement granted in favour of the plaintiff/respondent herein, before this Court in CM(M) No. 158/2024 while invoking the Supervisory jurisdiction of this Court enshrined under Article 227 of the Constitution, the said petition however, came to be withdrawn by the defendants/petitioners on 22.05.2024 with liberty to approach the trial court and seemingly thereafter the defendants/petitioners herein instituted the application under Order 7 Rule 11 CPC before the trial court seeking rejection of plaint/suit on the ground that the mandatory Pre-Institution Medication and Settlement has not been initiated by the plaintiff/respondent herein prior to the institution of the suit as such, the suit is barred by law, which application upon consideration, however, came to be rejected by the trial court in terms of impugned order dated 05.04.2025.

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It is significant to mention here that in law admittedly a plaint/suit can be rejected under Order 7 Rule11 CPC if the same appears from the statement in the plaint/suit to be barred by any law and in such a case,

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it is the duty of the court to examine the plaint alone and ascertain as to whether the suit/plaint is barred by any law and the said power of rejection of plaint can be exercised at any stage of the proceedings therefore, making it in other words manifestly clear that the provisions of Order 7 Rule 11 CPC are mandatory and do not leave the matter to the discretion of the court. It is also significant to mention here that an order rejecting a plaint/suit under Order 7 Rule 11 CPC is a deemed “decree” and is appealable, whereas, an Order refusing to reject a plaint/suit is not a “decree” and no appeal lies against that order.

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As has been noticed in the preceding paras, the defendants/petitioners herein although have had earlier challenged the order of exemption dated 08.12.2022 passed in favour of the plaintiff/respondent herein qua the institution of the suit without taking recourse to the PreInstitution Mediation and Settlement before this Court in CM(M) No.158/2024, yet, the said petition was not prosecuted on merits and was withdrawn with liberty to approach the trial court and consequently the application under Order 7 Rule 11 came to be filed for rejection of the plaint before the trial court qua the provisions of Section 12-A of the Act of 2015 despite the fact that the trial court have had considered the application of Section 12-A upon initial institution of the suit by the plaintiff/respondent herein and had exercised its discretion while allowing the plaintiff respondent herein to file the suit. The defendants petitioners herein thus, while maintaining the said application made under Order 7 Rule 11 CPC in essence sought re-consideration/review of the said discretion exercised by the trial court, which in principle could not have been sought against the exercise of such discretion at a later stage in the matter by the defendants/petitioners herein, under the guise of the said application filed under Order 7 Rule 11 CPC.

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Be that as it may, since the trial court has proceeded to deal with the said application filed under Order 7 Rule 11 CPC by the defendants/ petitioners herein against the discretionary order dated 08.12.2022 passed earlier by the trial court and having revisited and reconsidered the matter of grant of exemption to the plaintiff/respondent herein in filing the suit qua the bar contained in Section 12-A of the Act of

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2015 and consequently rejected the said application in terms of impugned order dated 05.04.2025 and which order has been now questioned by the defendants/petitioners in the instant petition along with the initial order dated 08.12.2022, this Court deems it appropriate to advert to the petition in hand on the premise as to whether the exercise of Supervisory jurisdiction in the matter is warranted or not.

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Law in regard to the exercise of Supervisory jurisdiction enshrined under Article 227 of the Constitution is no more res integra and stands settled by a series of judgments passed by the Apex Court including in case titled as “Shalina Shyam Shetty” wherein it has been, inter alia, held that the High Court cannot on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution interfere with the orders of the courts inferior to it and cannot in exercise of said power act as a court of appeal over the orders of the courts subordinate to it and also cannot interfere to correct mere errors of law or fact or just because another view that the one taken by the courts subordinate to it is a possible view and that the exercise of said power though may be unfettered but its exercise is subject to high degree of judicial discipline.

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Keeping in mind the aforesaid principles of law qua the exercise of Supervisory jurisdiction and coming back to the case in hand, perusal of the impugned orders dated 8.12.2022 and dated 05.04.2025 qua the discretionary exemption granted by the trial court to the plaintiff /respondent herein manifestly tends to show that the trial court has passed the said orders rightly with valid reasons and seemingly in line and tune with the law laid down by the Apex Court in this regard “ Yamini Manohar ” supra. Therefore, having regard to the scheme and objects of the Act of 2015 supra , this Court is not inclined to reverse the said discretionary order/s in exercise of Supervisory Jurisdiction and negate the legislative intent and purpose behind the Act of 2015 and either forestall or delay the expeditious disposal of the suit being commercial in nature.

¶102

Besides, above it also emanates from order dated 08.12.2022 and as has been noticed in the preceding paragraphs, the trial court simultaneously also passed an ex parte interim order in the application

¶103

¶104

for interim relief after dispensing with the requirement with the issuance of prior notice envisaged under Order 39 Rule 3 CPC and interestingly the defendants/petitioners herein did not contest the said order and as per record even have not availed the liberty granted to them by the trial court in seeking vacation or modification of said interim order, either by filing objections thereto or else an independent application thereof. Instead the defendants/petitioners seemingly have questioned the said subject to objections order as well while maintaining the instant petition having thrown challenge to the composite impugned order dated 08.12.2022 which the defendants/ petitioner could not also have done in view of law laid down by the Ape x Court in case titled as “ A. Venkatasubbiah Naidu Vs. S. Chellappan and Others ” reported in 2000 (7) SCC 695 , wherein it has been held that a party cannot approach the Appellate or Revisional Court during the pendency of application for grant of interim relief and even if a party approaches the High Court and seeks exercise of Constitutional power, the High Court on the basis of well recognized principle which has gained judicial recognition, should direct the party to avail the appropriate remedy of appeal before resorting to the constitutional remedy.

¶105

Viewed thus for what has been observed, considered and analyzed hereinabove the exercise of Supervisory jurisdiction in the instant matter is found to be not warranted.

¶106

Resultantly the petition fails and is accordingly, dismissed alongwith connected application(s). Interim directions shall stand vacated.

¶107

The Registry is directed to remit the record to the trial court alongwith a copy of this order.

¶108

(JAVED IQBAL WANI) JUDGE

¶109

SRINAGAR

¶110

01.09.2025 Ishaq

¶111

Whether the judgement is speaking ? Yes Whether approved for reporting ? Yes

¶112

Gulkand Hues Pvt. Limited Th.Its Director and Anr. v. Anita Mehta

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Gulkand Hues Pvt. Limited Th.Its Director and Anr. v. Anita Mehta

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