Bombay High Court
Indian Oil Corporation Limited, ... vs Krushnarao @ Kanhaiya S/O. ... on 14 July, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH, NAGPUR.
Civil Revision Application No. 43 of 2017
APPLICANT:- Indian Oil Corporation Limited,
having its Registered Office at Indian Oil
Bhawan, G-9, Ali Yawar Jung Marg,
Bandra (East), Mumbai and Divisional
Office at Akarshan Busyplex, 26, Central
Bazar Road, Ramdaspeth,
Nagpur-440010.
Versus
RESPONDENTS: 1)
Krushnarao @ Kanhaiya s/o Hariram
Bhivgade, Aged about 65 years, Occu:
Legal Practitioner & Cultivator, R/o
Hanuman Ward, Bada Bazar, Bhandara,
Tahsil & District- Bhandara.
Deleted the name of
2) M/s Venkatesh Gas & Domestic
Res.No.2 as per
Appliances, Indane Distributor, Near Rajiv
Court order
dt. 10.3.2017. Gandhi Chowk, Bhandara, Tahsil and
District Bhandara.
3) Pramod s/o Sitaramji Heda,
Aged about 50 years, Occu: Business.
4) Sangita w/o Pramod Heda,
Aged about 47 years, Indane LPG
Distributor,
Both 3 & 4 R/o Tilak Ward, Behind Pande
Mahal, Bhandara, Tahsil and
District-Bhandara.
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___________________________________________________________________________
Shri Rohit Joshi, Advocate for applicant
___________________________________________________________________________
Coram: S.B. Shukre, J.
Date : 14
July, 2017
th
Oral Judgment
1] Heard Shri Rohit Joshi, the learned counsel for the revision
applicant. None for the respondents though served. Perused the paper
book including the impugned order.
Rule. Heard finally in terms of order dated 22.3.2017 and
16th June 2017.
2] Respondent No.1 had preferred earlier one civil suit bearing
R.C.S No. 112/1987 against the present applicant. The suit that was
filed by respondent No.1 against the applicant was for appointing him
as a distributor in respect of Bhandara area for supply of its produce,
the LPG or Liquid Petroleum Gas. The appointment was sought by
displacing the original defendant no.3-Anil s/o Balkrishna Kanorkar
therein, (not a party to the present suit), appointed as a Distributor, in
pursuance of the public notice dated 12.1.1984 published in daily
newspaper "Lokmat".
The reliefs sought in that suit were as follows :-
"That, the Hon'ble Court be pleased to
declare that the selection of the defendant no.3 by the
defendant no.1 for appointment as distributor for Indian
(LPG) for Bhandara is void and illegal and further be
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pleased to declare that the plaintiff should be selected for
appointment as distributor in place of defendant no.3.
That, the defendant No.1 be permanently
restrained to appoint the defendant no.3 as their
distributor for Bhandara and if the appointment letter is
already issued, it should be ordered to be withdrawn. The
mandatory injunction giving retrospective effect should
also be passed in favour of the plaintiff.
The defendant no.3 be permanently
restrained from acting as a dealer/distributor for L.P.G.
Of I.O.C. at Bhandara.
That, the costs of this suit be kindly saddled
on the defendants."
3] Such reliefs would, in nutshell, show that the contention
was that the selection of the original defendant no.3, by the original
defendant no.1 (present applicant) for appointment as a distributor for
supply of LPG for Bhandara was void ab-initio and that the original
plaintiff (respondent No.1 herein) was entitled to be selected for the
appointment as a distributor in place of the original defendant no.3.
The relief in the nature of permanent injunction restraining this
applicant from appointing the original defendant no.3 as its distributor
for Bhandara was also sought. Another relief that was sought was in
the nature of mandatory injunction to restrain the original defendant
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no.3 from acting as a distributor for the original defendant no.1
(present applicant), in that suit.
This suit bearing R.C.S. No.112/1987 was decreed by the
Court of Civil Judge (Senior Division) Bhandara in following terms -
ORDER
The suit stands decreed with cost to meet
the ends of justice, whereby.
(ii) It is, declared that the selection of the
Defendant No.3 by the Defendant no.1 for
appointment as Distributor for INDANE (L.P.G.), for
Bhandara has been void and illegal;
(iii) It is, declared that the plaintiff is entitled
to be selected for appointment as a Distributor in
place of the Defendant no.3.
(iv) The defendant no.1 is restrained by
virtue of Permanent Injunction from appointing the
Defendant No.3, as their Distributor for Bhandara.
(iv) The defendant No.1 is directed by virtue
of Mandatory Injunction to withdraw the
Appointment Letter, should, it be, already, issued.
(v) The defendant No.3 is restrained by
virtue of permanent Injunction from acting as a
Dealer-Distributor for L.P.C. of I.O.C. at Bhandara.
(vi) Decree be drawn up accordingly.
4] As the respondent no.1-plaintiff in RCS No.112/1987 was
not appointed as a distributor he filed execution proceedings against
the present applicant. This applicant raised an objection as to the
executability of decree. The learned Civil Judge, Senior Division
Bhandara upheld this objection and rejected the application filed for
execution of the decree dated 4/9/2015. Thereafter, respondent No.1,
filed yet another suit bearing RCS No. 87/2014 against this applicant as
defendant No.1, deleted respondent No.2 as defendant no.2 and
Respondent Nos. 3 and 4, as defendants Nos. 3 and 4. In this suit,
following reliefs are sought :-
1) That, the defendant No.1 by way of
mandatory injunction be directed to do all such
things appointment of plaintiff as a
dealer/distribution of Indane (LPG).
2) Defendant No.1 be further directed
by prohibitory injunction to refrain from
appointing the defendant no.3 or any other person
as dealer/distributor for Indane (LPG) for
Bhandara Town.
3) That, the defendant No.2 and 3 be
directed by way of permanent injunction to refrain
from interfering with the claim of plaintiff.
5] The subsequent suit was based upon the cause of action in
the previous suit, and the reliefs claimed in subsequent suit were
something which were claimed to founded on the rights declared in the
previous suit, and so, it was contended by the applicant that the
subsequent suit was not maintainable, being barred by law in view of
the provisions of Order II Rule (2) and (3) of the Code of Civil
Procedure, 1908 and so the application came to be filed for rejection of
plaint under Order 7 Rule-11 C.P.C.
6] After hearing the contesting parties, the application was
rejected by the Trial Court by its order dated 4/9/2015. Being aggrieved
by the same, the applicant- defendant no.1 in the subsequent suit is
before this Court in the present revision application.
7] On perusal of the pleadings in the subsequent suit bearing
RCS No. 87/2014, one can easily come to the conclusion that right
claimed in this suit flows from cause of action on which the previous
suit was based. In the previous suit a declaration that the respondent
No.1 was entitled to be appointed as a Distributor of the applicant
company was sought. In the previous suit, apart from the declaration
regarding entitlement to the appointment as a distributor, the relief in
the nature of mandatory injunction against the distributor was also
claimed. However, no relief for issuance of mandatory injunction
against the applicant for issuing an appointment order was sought. If
this is so, the question would be, whether or not, such relief not claimed
in previous suit based on same cause of action, though could have been
sought, could now be sought by filing a fresh suit.
The provisions of Order II Rules 2 and 3, provide an answer.
They read thus :-
"1. -----
2. Relinquishment of part of claim:- Where a plaintiff
omits to sue in respect of, or intentionally relinquishes,
any portion of his claim, he shall not afterwards sue in
respect of the portion so omitted or relinquished.
3. Omission to sue for one of several reliefs- A person
entitled to more than one relief in respect of the same
cause of action may sue for all or any of such reliefs, but
if he omits, except with the leave of the Court, to sue for
all such reliefs, he shall not afterwards sue for any relief
so omitted.
Explanation- For the purposes of this rule an obligation
and a collateral security for its performance and
successive claims arising under the same obligation shall
be deemed respectively to constitute but one cause of
action."
8] In the instant case, we have seen that the reliefs claimed in
the subsequent suit are completely based upon the cause of action on
which the earlier suit was founded. So the respondent No.1 could have
sought these reliefs in the previous suit itself, but he omitted to do so,
and for such omission, no leave of the Court was taken. His application
for execution of the decree passed in the previous suit was also rejected
by the executing court on the ground that the claim made in the
application for execution of decree was not granted in the decree, it
being never sought in the plaint. This order has now attained finality.
This is all discernible from the plaint and documents filed alongwith it
and which can be considered as forming part of the pleadings in the
plaint. Therefore, one has to say that the pleadings of the present suit
are such that they clearly show that the present suit is barred by the
provisions of Order II Rules 2 & 3.
9] In the case of Purna Medium Project Division, Amravati V/s
Y.R. Reddy and another reported in 2004 (1) Mh.L.J. 729, the facts were
similar to the facts of this case. In that case the subsequent suit was
founded upon the same cause of action as was in the previous suit and
it was not based on the new cause of action, just as in the present and
so it was held that subsequent suit was barred by law.
10] In the circumstances, this Court is of the view that the
subsequent suit is barred by provisions of Order-II sub Rules 2 & 3 of
the Code of Civil Procedure.
In view of above, the application for rejection of plaint
(Ex-17) deserves to be allowed and it is allowed accordingly. The
impugned order dated 04/09/2015 is quashed and set aside.
Application vide exhibit-17 is allowed. The plaint is rejected. The Court
fee be refunded as per rules. No costs.
JUDGE
nandurkar
