M/S Swear Heathcare Pvt. Ltd. vs M/S Anondita Health Care And ...
2023 Latest Caselaw 16268 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:113770
 
Reserved on 18.05.2023
 
Delivered on 23.05.2023
 
Court No. - 7
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 4036 of 2023
 

 
Petitioner :- M/S Swear Heathcare Pvt. Ltd.
 
Respondent :- M/S Anondita Health Care And Another
 
Counsel for Petitioner :- Kartikeya Saran,Varun Singh
 
Counsel for Respondent :- Vinayak Mithal
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. This writ petition under Article 227 of the Constitution of India has been filed for setting aside the order dated 10.02.2023 passed by Presiding Officer, Commercial Court, Gautam Buddh Nagar in Original Suit No. 51 of 2022 passed on the application filed under Order 7 Rule 11 C.P.C. by petitioner and also seeking an appropriate order or direction rejecting the plaint as being barred under Order 7 Rule 11 C.P.C. and setting aside the entire proceedings of original suit.

2. The short controversy engaging the attention of the Court through the present writ petition, is as to whether a writ petition filed under Article 227 of the Constitution of India is maintainable before this Court against the order passed by Commercial Court at Gautam Buddh Nagar rejecting the application moved by petitioner under Order 7 Rule 11 C.P.C. being Paper No. 42-Ga.

3. Facts in brief, are that petitioner is a Company incorporated under the provisions of Companies Act, and is engaged in the business of manufacturing of surgical gloves. The manufacturing unit is situated at Dholpur, Rajasthan. While respondent no. 1 is a partnership firm and is engaged in the same business of manufacturing surgical gloves and contraceptive condoms. It has two manufacturing units, one situated at Mathura and the other at Gautam Buddh Nagar.

4. Respondent no. 1 had entered the business of manufacturing of gloves prior to petitioner, who entered in the market in the year 2014. As dispute arose between respondent no. 1 and fabricator of machine for manufacturing of gloves, a Civil Suit No. 1 of 2016 was filed by respondent no. 1 and 2 against fabricator, Faiz Mohammad. In the said suit, petitioner was also made one of the party along with two erstwhile employees of respondent no. 1, firm. Relief claimed in the said suit was for permanent injunction against defendant no. 1, Faiz Mohammad. The suit was decreed on 09.02.2017. It appears that Faiz Mohammad and Mohammad Imran, fabricators of the machine for manufacture of surgical gloves had entered into agreement with petitioner-Company earlier in the year 2015 and subsequently in the year 2020. In 2015 machine was fabricated by fabricators for petitioner and thereafter a second machine was fabricated in the year 2020. Respondent no. 1 filed an Original Suit No. 51 of 2022 before Commercial Court, Gautam Buddh Nagar for permanent injunction restraining infringement of designs, rendition of accounts of private/damages etc. against the petitioner, its Director and erstwhile employee.

5. During the pendency of the suit, an application under Order 7 Rule 11 was moved by petitioner for rejection of the plaint that suit appears from statement of plaint to be barred by law. The said application was contested by respondent and by order impugned, the court below had dismissed the application filed under Order 7 Rule 11. Hence, this writ petition.

6. Sri Kartikeya Saran, learned counsel appearing for the petitioner submitted that the second suit filed by respondent no. 1 was barred by principles of res judicata under Section 11 of CPC and thus the Court below was not correct in not rejecting the plaint under Order 7 Rule 11 CPC. He further contended that from the reading of plaint of second suit filed by respondent no. 1, it is clear that as the earlier suit was decreed against same party and for the same relief, the second suit at the behest of respondent no. 1 was barred by law and has to be dismissed. He then contended that a similar occasion arose before the Apex Court in the matter of Prem Kishore and others vs. Brahm Prakash and others, Civil Appeal No. 1948 of 2013, decided on 29.03.2023, wherein the Apex Court held as under:-

"33. On a perusal of the above authorities, the guiding principles for deciding an application Under Order 7 Rule 11(d) of the Code of Civil Procedure can be summarized as follows:

(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;

(ii) The defence made by the Defendant in the suit must not be considered while deciding the merits of the application;

(iii) To determine whether a suit is barred by res judicata, it is necessary that (i) the 'previous suit' is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and

(iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the 'previous suit', such a plea will be beyond the scope of Order 7 Rule 11(d), where only the statements in the plaint will have to be perused.

(See: Srihari Hanumandas Totala v. Hemant Vithal Kamat, (2021) 9 SCC 99)

34. The general principle of res judicata Under Section 11 of the Code of Civil Procedure contain Rules of conclusiveness of judgment, but for res judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. Further, the suit should have been decided on merits and the decision should have attained finality. Where the former suit is dismissed by the trial court for want of jurisdiction, or for default of the Plaintiff's appearance, or on the ground of non-joinder or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the Plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the Plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit."

7. Per contra, Sri Shashi Nandan, learned Senior Advocate assisted by Sri Vinayak Mithal, learned counsel for the respondent submitted that order passed by court below rejecting application under Order 7 Rule 11 CPC can only be assailed exercising revisional jurisdiction. He further contended that writ petition under Article 227 was not maintainable and it was not an interlocutory order and section 8 of Commercial Court Act, 2015 clearly bars a civil revision application or petition against an interlocutory order of the Commercial Court. Once the order passed was a final order rejecting the application, petition under Article 227 was not maintainable and only a revision lies.

8. I have heard respective counsel for the parties and perused the material on record.

9. The short controversy engaging the attention of this Court, is whether a petition under Article 227 would be maintainable against an order rejecting an application under Order 7 Rule 11 CPC.

10. It is a well settled law that in case an application under Order 7 Rule 11 is allowed and the plaint is rejected, then, the order passed by trial court is subject to first appeal under Section 96 of Code of Civil Procedure and order rejecting the plaint by the trial court will be covered under the definition of "decree" under Section 2(2). However, where the application under Order 7 Rule 11 CPC is rejected, the order passed by trial court is a revisable order under Section 115 of Code of Civil Procedure.

11. The order rejecting the application under Order 7 Rule 11 is not an interlocutory order as suggested by counsel for the petitioner and no writ petition under Article 227 of the Constitution of India would lie under the supervisory jurisdiction of this Court. Moreover, as the suit has been filed before the Commercial Court at Gautam Buddh Nagar, the Commercial Court Act, 2015 in Section 8 provides, which deals with a non obstante clause, that no civil revision or petition shall be entertained against an interlocutory order of 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 appeal against the decree of Commercial Court. The said provision further clarifies that no revision or petition is maintainable against an interlocutory order of Commercial Court and the same can only be challenged in appeal under Section 13 of the Commercial Court Act against the decree of the court.

12. Now coming to the decision relied upon by the petitioner counsel in case of Prem Kishore (supra), this Court finds that the said judgment does not help the petitioner. In fact the Hon'ble Apex Court after considering the earlier decisions in case of Kamala and Ors. v. K.T. Eshwara Sa and Ors., ( 2008 ) 12 SCC 661, Saumitra Kumar Sen vs. Shyamal Kumar Sen, (2018) 5 SCC 644 and Srihari Hanumandas Totala v. Hemant Vithal Kamat, (2021) 9 SCC 99 held that an adjudication of plea of res judicata requires consideration of the pleadings, issues and decision in the previous suit, such a plea will be beyond the scope of Order 7 Rule 11(d) where only statements in the plaint will have to be perused.

13. In the instant case, from perusal of the two plaints of the year 2016 and 2022, it is clear that in earlier suit relief was sought by plaintiff-respondent no. 1 against the fabricator who had entered into agreement with petitioner for fabrication of machine for manufacturing gloves. While the second suit has been filed against the petitioner, its Director and ex-employee by plaintiff-respondent no. 1 seeking permanent injunction restraining infringement of designs, rendition of accounts of profits/damages etc. From perusal of relief sought in two suits and the judgment rendered in the earlier case and also from perusal of the parties in the two suits, it is clear that plea of res judicata cannot be considered at the stage while deciding Order 7 Rule 11 application and it is only after the exchange of pleadings and framing of the issues, the plea of res judicata could be decided.

14. The argument raised by petitioner counsel at Bar cannot be accepted that parties in both the suits are the same and the relief sought is also the same in two suits by plaintiff-respondent no. 1 so as to attract the provisions of res judicata at the stage of consideration of application under Order 7 Rule 11 CPC.

15. This Court finds that no case under Order 7 Rule 11 (d) CPC has been made out by petitioner as the suit does not appear to be barred by any law.

16. Writ petition fails and is hereby dismissed.

17. No order as to costs.

Order Date :- 23.5.2023

V.S.Singh