Parties cannot take shifting and opportunistic stands in court, and the court will not enforce illegal transactions or assist a plaintiff who violates the terms of their employment. The court may dismiss a suit if it is found to be in abuse of the court's process and burden the plaintiff with costs.

Rajiv Sahai Endlaw, J.

1. Issue No. 1 as follows, framed on 17th January, 2008 and ordered to be treated as a preliminary issue falls for consideration:

1. Whether the suit is barred by the principle of res-judicata as issue raised in the suit has been directly and substantially been adjudicated between the plaintiff and the defendant in suit No. 16/2006 titled as Alka Gupta v. Narender Kumar Gupta vide an order dated 25th November, 2006 by a competent court? OPD

2. During the hearing on the aforesaid preliminary issue on 12th January, 2009, after hearing the counsel for the defendant and the senior counsel for the plaintiff in part it was clarified that arguments were being heard not only on the preliminary issue aforesaid but also on as to why independently of Section 11 and Order 2 Rule 2 of CPC, the suit should not be dismissed summarily, also on the ground of re-litigation and abuse of the process of court. Thereafter on 16th January, 2009 the statement of the plaintiff was also recorded and arguments on the preliminary issue and the aforesaid aspect were heard on 16th January, 2009 and 21st January, 2009.

3. The facts are as under:

A. The plaintiff instituted the present suit for rendition of accounts and recovery of dues. It is the case in the plaint, that the plaintiff vide deed dated 5th April, 2000 entered into a partnership with the defendant for doing the business of running an educational institute under the name and style of Takshila Institute. offering specialized coaching to candidates preparing for entrance examinations for Medical and Engineering Colleges; the plaintiff and the defendant were equal partners and the business under the said deed commenced w.e.f. 1st April, 2000; that though the business was very successful but the defendant appropriated all receipts thereof unto himself and instituted a suit No. 438/2004 of the court of Shri Devender Kumar Jangala, Civil Judge, Delhi for permanent injunction against the plaintiff; that upon institution of the said suit it was clear that the defendant was not interested in continuing the said partnership which by implication stood dissolved with effect from the date of institution of that suit; that the said suit instituted by the defendant was withdrawn by the defendant vide his statement dated 16th October, 2004; that the defendant had no right to use the name, style and goodwill associated with Takshila Institute, however the defendant surreptitiously and unlawfully got the name, style and logo of Takshila Institute registered as his exclusive trademark and/or copyright; that the books of accounts of Takshila Institute were being maintained by the defendant and were in his custody; that after the transfer of the immovable property of Takshila Institute at Plot No. 8, Pocket C-9, Sector-8, Rohini, Delhi - 110085 by the plaintiff in favour of the defendant on 13th August, 2004 pursuant to a Bayana Agreement dated 29th June, 2004 between the parties, the plaintiff was not able to enter the said premises and was thus constrained to institute the present suit; that the defendant had refused to account for the monies received from time to time and to pay to the plaintiff her share in it; that the plaintiff had got issued a legal notice dated 8th March, 2005 to the defendant inter-alia calling upon the defendant to render accounts of the said firm and to pay to the plaintiff her share of accrued profits and assets; that the defendant neither replied to the said notice nor rendered the accounts; that the plaintiff had instituted another suit against the defendant being suit No. 16/2006 decided on 25th November, 2006 by the court of Shri Paramjit Singh, Additional District Judge, Delhi; the projected income concealed by the defendant for the period of 21st October, 2000 to 31st July, 2004 was in the sum not less than Rs. 40 lacs which can be attributed to the goodwill earned by Takshila Institute during the subsistence of partnership; that the defendant was e