AMBAR CONSTRUCTION COMPANY Vs. AGRICULTURAL PRODUCE MARKET COMMITTEE
LAWS(GJH)-2014-4-171
HIGH COURT OF GUJARAT
Decided on April 10,2014

Ambar Construction Company Appellant
VERSUS
AGRICULTURAL PRODUCE MARKET COMMITTEE Respondents

JUDGEMENT

- (1.) BEING aggrieved by and dissatisfied with the impugned judgement and order / decree passed by the learned Principal Senior Civil Judge, Gondal below Ex. 22 in Special Civil Suit No. 39 of 1998 dated 5/9/2013 rejecting the plaint in exercise of the powers under Order 7 Rule 11(d) of the Code of Civil Procedure, appellant herein original plaintiff has preferred the present First Appeal.
(2.) FACTS leading to the present First Appeal in nutshell are as under : - 2.1. That the appellant herein (hereinafter referred to as "the plaintiff") entered into a contract for construction with the respondent herein (hereinafter referred to as "the defendant"). That the defendant thereafter issued notice on 14/5/1996 for termination of the contract and therefore, the plaintiff instituted Regular Civil Suit No.134 of 1996 in the court of learned Civil Judge (SD), Gondal against the defendant for declaration to declare that the contract is not terminated and for permanent injunction restraining the defendant to carry out the contract from any other person agency. The defendant also filed counter claim. That thereafter the plaintiff instituted one another suit being Special Civil Suit No. 39 of 1998 for decree of Rs.10,89,25,406.22 ps. towards damages for breach of the contract. That the said suit came to be filed on 16/4/1998. That thereafter the original plaintiff submitted application Ex.16 in Special Civil Suit No. 39 of 1998 on 3/8/2004 requesting to consolidate both the suits being Regular Civil Suit No.134 of 1996 as well as Special Civil Suit No. 39 of 1998, inter -alia contending that both the suits are with respect to one contract and in both the suits, same/common evidence is required to be led. It appears that the said application was opposed by the original defendant on the ground that second suit is barred under Order 2 Rule 2 of the Code of Civil Procedure. That by order dated 10/10/2005, the learned Principal Senior Civil Judge, Gondal allowed the said application Ex.16 and ordered to consolidate both the suits being Regular Civil Suit No.134 of 1996 as well as Special Civil Suit No. 39 of 1998, however reserving the contention with respect to Order 2 Rule 2 of the Code of Civil Procedure raised by the defendant. It appears that both the suits came to be consolidated. It appears that prior thereto the learned Judge framed the Issues at Ex.11 in Special Civil Suit No. 39 of 1998. 2.2. It appears that thereafter both the suits came to be adjourned time and again so as to enable the parties to lead the evidence. That thereafter, after a period of almost 8 years of consolidation of the aforesaid suit and after a period of almost 15 years of the filing of the suit, the defendant submitted application Ex.22 in Special Civil Suit No.39 of 1998 requesting to reject the plaint in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure contending inter -alia that the second suit being Special Civil Suit No. 39 of 1998 is barred under Order 2 Rule 2 of the Code of Civil Procedure. It was submitted on behalf of the defendant that the first suit being Regular Civil Suit No.134 of 1996 was filed for declaration and permanent injunction and the second suit being Special Civil Suit No. 39 of 1998 has been preferred for damages for breach of contract and in both the suits, cause of action stated to be notice dated 14/5/1996. Therefore, it was submitted that as cause of action in both the suits is the same and in the first suit the plaintiff ought to have claimed and/or prayed for the relief of damages for breach of contract which the plaintiff has forgone / waived and therefore, the plaint is required to be rejected as it is barred under Order 2 Rule 2 of the Code of Civil Procedure and in exercise of the powers under Order 7 Rule 11(d) of the Code of Civil Procedure. 2.3. The aforesaid application was objected by the original plaintiff. It was submitted that the plaint may not be rejected under Order 7 Rule 11 of the Code of Civil Procedure after a period of 15 years of filing of the suit. It was also submitted that as such both the suits are consolidated and therefore only one suit cannot be rejected. It was further submitted that as such, the cause of action in both the suits would be different and even the prayer would also be different. It was submitted that whether the suit is barred under Order 2 Rule 2 of the Code of Civil Procedure or not, is required to be considered only after permitting the parties to lead evidence and on appreciation of evidence. It was submitted that at the relevant time when the earlier suit being Regular Civil Suit No.134 of 1996 was filed, according to the plaintiff, the contract was not terminated and was in existence and therefore, at the relevant time, there was no question of asking any relief for damages for breach of the contract and therefore, at the relevant time the plaintiff prayed for the relief / declaration that the contract between the parties has been continued. It is submitted that if at the relevant time, relief for claiming damages would have been asked, it would have been contradictory relief and therefore, at the relevant time, such relief was rightly not prayed. It is submitted that thereafter when it was the specific case on behalf of the defendant in the Written Statement that the contract between the parties has been terminated and therefore, plaintiff rightly instituted subsequent suit for getting decree for damages for breach of contract. It was submitted that therefore, there is no bar under Order 2 Rule 2 of he Code of Civil Procedure. 2.4. That by the impugned order, the learned Principal Senior Civil Judge, Gondal has allowed the said application Ex.22 and dismissed the subsequent suit being Special Civil Suit No. 39 of 1998 on the ground that the suit is barred under Order 2 Rule 2 of the Code of Civil Procedure. 2.5. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Principal Senior Civil Judge, Gondal below Ex.22/1 in Special Civil Suit No. 39 of 1998 in dismissing the suit in exercise of the powers under Order 7 Rule 11(d) of the Code of Civil Procedure, appellant herein original plaintiff has preferred the present First Appeal.
(3.) MR .Sandeep Bhatt, learned advocate appearing on behalf of the original plaintiff appellant herein has vehemently submitted that the learned judge has materially erred in allowing the application Ex.22 and dismissing the suit under Order 7 Rule 11 of the Code of Civil Procedure on the ground that the Special Civil Suit No. 39 of 1998 is barred under Order 2 Rule 2 of the Code of Civil Procedure. 3.1. Mr.Sandeep Bhatt, learned advocate appearing on behalf of the original plaintiff appellant herein has further submitted that the learned Judge has materially erred in entertaining the application Ex.22 submitted under Order 7 Rule 11 of the Code of Civil Procedure, which was submitted after a period of 15 years of filing of the suit and even after a period of 8 years of consolidation of both the suits being Regular Civil Suit No.134 of 1996 and Special Civil Suit No. 39 of 1998. 3.2. Mr.Sandeep Bhatt, learned advocate appearing on behalf of the original plaintiff appellant herein has further submitted that as such Special Civil Suit No. 39 of 1998 is not barred under Order 2 Rule 2 of the Code of Civil Procedure, as contended on behalf of the defendant. It is submitted that the learned Judge has not properly appreciated the fact that at the relevant time when the earlier suit being Regular Civil Suit No.134 of 1996 was filed for declaration and permanent injunction, it was the specific case on behalf of the plaintiff that the contract between the parties subsists and has been continued and therefore, relief of declaration that the contract between the parties is subsisting and continued was sought and permanent injunction was sought restraining the defendant from giving work of contract of construction to any other agency. It is submitted that the learned judge has not properly appreciated the fact that if at the relevant time the plaintiff would have asked for the relief of damages for breach of the contract, in that case, the same would have been contradictory as it was the specific case on behalf of the plaintiff that the contract between the parties is not terminated and has subsisted and is continued. It is submitted that therefore, at the relevant time the plaintiff rightly not asked for decree for damages for breach of contract. It is submitted that thereafter when after filing of the written statement it was the specific case on behalf of the defendant that the contract between the parties has already been terminated and earlier notice itself can be said to be terminating the contract between the parties and therefore it necessitated the plaintiff to file subsequent suit being Special Civil Suit No. 39 of 1998 claiming damages for breach of the contract. It is submitted that therefore, when the earlier suit was filed, there was no cause for the plaintiff to ask for the decree for damages for breach of the contract. It is submitted that therefore it cannot be said that the second suit being Special Civil Suit No. 39 of 1998 is barred under Order 2 Rule 2 of the Code of Civil Procedure. It is submitted that therefore, the learned Judge has materially erred in holding that the subsequent suit being Special Civil Suit No. 39 of 1998 is barred under Order 2 Rule 2 of the Code of Civil Procedure. 3.3. Mr.Sandeep Bhatt, learned advocate appearing on behalf of the original plaintiff appellant herein has further submitted that even otherwise, the learned Judge has materially erred in entertaining the application Ex.22 which was submitted under Order 7 Rule 11 of the Code of Civil Procedure after a period of 15 years of filing of the suit more particularly when the suit was riped for hearing. It is submitted that as such the learned Judge has not properly appreciated the scope and ambit of Order 7 Rule 11 of the Code of Civil Procedure. 3.4. Mr.Sandeep Bhatt, learned advocate appearing on behalf of the original plaintiff appellant herein has further submitted as such earlier an order has been passed to consolidate both the suits being Regular Civil Suit No.134 of 1996 and Special Civil Suit No. 39 of 1998 and now dismissing one suit being Special Civil Application No. 39 of 1998, the order of consolidation of both the suits would become redundant. It is submitted that by passing the order of consolidation of both the suits, the learned judge has specifically observed that the contention on behalf of the defendant that the second suit is barred under Order 2 Rule 2 of the Code of Civil Procedure, is kept open, meaning thereby the same was required to be considered at the time of trial. 3.5. Mr.Sandeep Bhatt, learned advocate appearing on behalf of the original plaintiff appellant herein has further submitted that even otherwise, whether the second suit is barred under Order 2 Rule 3 of the Code of Civil Procedure or not is a question which is required to be considered on appreciation of evidence, i.e. after permitting the parties to lead evidence and in the facts and circumstances of the case, the learned Judge has materially erred in dismissing the second suit being Special Civil Suit No. 39 of 1998 in exercise of power under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the said suit is barred under Order 2 Rule 2 of the Code of Civil Procedure. 3.6. Mr.Sandeep Bhatt, learned advocate appearing on behalf of the original plaintiff appellant herein has further submitted that even otherwise, the learned judge has materially erred in dismissing the suit in exercise of powers under Order 7 Rule 11 of the Code of Civil Procedure. It is submitted that as such in exercise of power under Order 7 Rule 11 of the Code of Civil Procedure, plaint is to be rejected and the suit cannot be dismissed. It is submitted that in any case, the learned judge mas materially erred in entertaining the application Ex.22 which was submitted belatedly and at belated stage i.e. after a period of 15 years of the filing of the suit. 3.7. Mr.Sandeep Bhatt, learned advocate appearing on behalf of the original plaintiff appellant herein, has relied upon the decisions of the Hon'ble Supreme Court in the case of Alka Gupta Versus Narender Kumar Gupta, 2010 10 SCC 141as well as in the case of Ram Prakash Gupta Versus Rajiv Kumar Gupta and others, 2007 10 SCC 59, in support of his submission that the application submitted by the defendant to reject the plaint in exercise of power under Order 7 Rule 11(d) of the Code of Civil Procedure was not required to be entertained as the same was submitted belatedly and at a belated stage. He has also relied upon unreported decision of this Court rendered in Civil Revision Application No. 299 of 2011 by which this Court has held that application to reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure is required to be submitted at the earliest. By making above submissions and relying upon above decisions, it is requested to allow the present appeal. Present appeal is opposed by Mr.B.S. Patel, learned advocate appearing on behalf of the original defendant respondent herein. It is submitted that in the facts and circumstances of the case when it has been found that the second suit being Special Civil Suit No. 39 of 1998 is barred under Order 2 Rule 2 of the Code of Civil Procedure, the case would fall under Order 7 Rule 11 of the Code of Civil Procedure and therefore, the learned Judge has rightly dismissed the suit in exercise of the power under Order 7 Rule 11(d) of the Code of Civil Procedure. 4.1. Mr.B.S. Patel, learned advocate appearing on behalf of the original defendant respondent herein has further submitted that cause of action pleaded in both the suits is the notice dated 14/5/1996 and at the relevant time when the plaintiff instituted first suit, he prayed only for declaration and permanent injunction and did not pray for decree for damages for breach of the contract, which the plaintiff ought to have prayed in the said first suit and therefore, when the relief for decree for damages for breach of contract was not sought in the first suit, it is to be held and it is rightly held that the plaintiff forgone / waived the relief of decree for damages for breach of contract and therefore, the learned judge has rightly considered section 21 of the Specific Relief Act and has rightly held that the second suit is barred under Order 2 Rule 2 of the Code of Civil Procedure and has rightly dismissed the second suit. 4.2. Mr.B.S. Patel, learned advocate appearing on behalf of the original defendant respondent herein has heavily relied upon the decision of the Hon'ble Supreme Court in the case of I.T.C. Limited Versus Debts Recovery Appellate Tribunal and others, 1998 2 SCC 70(para 13) as well as in the case of State Bank of India Versus Gracure Pharmaceuticals Ltd., 2013 3 GLH 626in support of his submission that as held by the Hon'ble Supreme Court in the aforesaid decisions, application under Order 7 Rule 11 of the Code of Civil Procedure can be submitted at any time / at any stage prior to delivery of the judgement. No other submissions have been made. By making above submissions and relying upon above decisions, it is requested to dismiss the present appeal.;


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