Allahabad High Court
Sri Krishna Kumar And 2 Others vs Sri Alok Singh on 3 May, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:79387
Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 10524 of 2023
Petitioner :- Sri Krishna Kumar And 2 Others
Respondent :- Sri Alok Singh
Counsel for Petitioner :- Shivendu Ojha,Sneh Pandey,Sr. Advocate
Hon'ble Ajit Kumar,J.
1. Heard Sri R.K. Ojha, learned Senior Advocate assisted by Sri Shivendu Ojha, learned counsel for the petitioner and perused the record.
2. By means of this petition filed under Article 227 of the Constitution of India, petitioner has questioned the order passed by the trial court dated 11.09.2023 dismissing the application filed for the second time by the defendant respondent under Order 7 Rule 11 CPC.
3. The plea taken before the Court is that earlier the same plaintiff had instituted a suit being O.S. No.1391 of 2015 in the name of company but through himself as a Director, even though he was removed from the post of Director and the manner in which the injunction was pleaded for, it became a question as to the maintainability of the suit at the instance of the plaintiff in the name of Company. Accordingly Order 7 Rule 11 application was filed by the defendant and that came to be allowed by the trial court on 16.08.2018 by a detailed judgment.
4. It is contended by learned counsel for the plaintiff-petitioner that the plaintiff again instituted a suit this time in individual capacity though again representing the Company being O.S. No.171 of 2022. The question arose as to its maintainability as he did not disclose the earlier suit filed and dismissal of the same upon an application being filed under Order 7 Rule 11 CPC by the defendant now petitioners herein and hence an application was filed by the defendant under Order 7 Rule 11 CPC. In that application certain grounds were raised but the ground as to the non-disclosure of the earlier suit was not raised. The said application came to be dismissed. Again the defendant moved another application on the ground that the person who was doing pairvi on behalf of defendant in the case suffered brain hemorrhage and therefore, he could not pursue the matter. The second application this time under Order 7 Rule 11 CPC has been moved with a plea that non disclosure of the earlier suit and dismissal thereof amounted to a fraud upon the Court and so was a clear case of abuse of process of law and court. The Second application under Order 7 Rule 11 CPC has been dismissed by the trial court by the order impugned on the ground that this plea was open to be taken by the defendant while an earlier application under Order 7 Rule 11 CPC was filed and result of that was that it came to be dismissed and hence for the second time this ground cannot be raised by means of second application under Order 7 Rule 11 CPC. In the substance the trial court proceeded to reject the application on principle of constructive res judicata.
5. The argument advanced by learned Senior Advocate appearing for the petitioner is that non disclosure of the earlier filing of the suit and dismissal thereof, was crucial fact which the court ought to have considered itself besides the fact that earlier application lacked this plea. He submits that this fact of filing of earlier suit and dismissal thereof is a fact which cannot get evaporated only on ground that plea to that effect was not undertaken in the application filed under Order 7 Rule 11 CPC.
6. I am afraid, such an argument cannot be appreciated at this stage by moving a second application because principle of constructive res judicata would be attracted. A party which had an opportunity to raise all such objections as to the maintainability of the suit etc. while an application under Order 7 Rule 11 CPC was filed and if any such particular plea had not been taken and the final judgment and order has been passed dismissing such application on merits, no second opportunity can be provided to raise similar plea by moving a similar application under the same provisions of law. However, in my considered view while the issues are framed by the trial court after exchange of pleadings between the parties, it will always be open for the defendants-petitioners to get an issue framed as to the maintainability of the second suit.
7. In view of the above, I do not find any manifest error in the judgment and order passed by the trial court. Accordingly, subject to the aforesaid liberty regarding framing of issue as to the maintainability of the second suit on facts of the case, this petition is dismissed and is Consigned to record.
Order Date :- 3.5.2024
Deepika
