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2015 Supreme(All) 3708
ALLAHABAD HIGH COURT
Ashwani Kumar Mishra, J.
Anokhi Devi & 3 Others - Appellant
Versus
Babu - Respondent
Matters Under Article 227 No. - 1404 of 2015
Decided On : 15-04-2015
For the Petitioner:- Archit Mehrotra
For the Respondent:- Rupendra K. Mishra
A litigant cannot be permitted 'choice' of the 'forum' and every attempt at 'forum shopping' must be crushed with a heavy hand.
Headnote:
forum shopping - Civil Procedure - Order-7 Rule-11 CPC - Saleem Bhai and others Vs. State of Maharashtra and others, (2003) 1 SCC, 557 - Chetak Construciton Ltd. Vs. Om Prakash and others, 1998 (4) SCC, 577
Fact of the Case:
Plaintiff filed a suit for permanent injunction before one court, then filed a second suit for the same relief with a different valuation before another court and obtained an ex-parte injunction. The first suit was withdrawn, but the trial court held that the plaintiff would have no right to institute a fresh suit. The defendant-petitioners filed an application under Order-7 Rule-11 CPC, alleging that the second suit was not maintainable due to the forfeiture of the plaintiff's right to file a fresh suit.
Finding of the Court:
The court found that the plaintiff engaged in forum shopping to secure an ex-parte injunction and that the second suit was not maintainable. The court held that the orders of the lower courts were erroneous and had caused a failure of justice for the petitioners.
Issues: The issues included the maintainability of the second suit, the forfeiture of the plaintiff's right to file a fresh suit, and the malafide intent in filing the second suit to secure an ex-parte injunction.
Ratio Decidendi: The court emphasized that a litigant cannot be permitted to indulge in forum shopping and cited the principle that every attempt at 'forum shopping' must be crushed with a heavy hand.
Final Decision: The petition succeeded, and the orders of the lower courts were set aside. The matter was remitted back to the trial court to reconsider the objection of the defendant-petitioners filed under Order-7 Rule-11 CPC afresh.
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. 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 on
