VINAY RAI Vs. ANIL RAI

JUDGEMENT

(1.) This Appeal assails the Order dated 23.10.2008, dismissing the Defendant's application under Order VII Rule 11 read with Order XII Rule 6 and Section 151 of the Code of Civil Procedure, 1908 ("CPC" for short). It is undeniably evident that Order XII Rule 6 of the CPC has no role to play in the present controversy. The application mentions and relies on the details set out in the Written Statement. Succinctly stated, the application raised four grounds for the rejection of the Plaint by the learned Single Judge. The first argument was that no concluded contract had concretized between the parties and what was reduced to writing was merely a "Wish List". Secondly, it was averred that the Suit was barred by the principle of prescription. Thirdly, it was pleaded that the Suit had not been correctly valued for the purposes of Court Fees and proper and adequate court fees had not been affixed on the plaint. Fourthly, it had been articulated that the Plaintiff had not obtained leave of the Court for filing a fresh action at the time when CS(OS) No.,118/2005 was dismissed. Each of these four contentions have also been canvassed before us.

(2.) Mr. V.P. Singh, learned Senior Counsel for the Appellant, has additionally pressed Section 41(h) of the Specific Relief Act, 1963 ("SR Act" for short) to contend that the Suit itself is not maintainable as it seeks a mandatory and permanent injunction. In this connection, Mr. Arvind Nigam, learned Senior Counsel for the Respondent, submits that this argument had not been raised before the learned Single Judge. We have questioned the Appellant on the legal propriety of raising a ground in an Appeal against an interlocutory Order which ground had not been voiced before the learned Single Judge. In response thereto, Mr. Singh has sought to rely on the following observations made in Gurcharan Singh -vs- Kamla Singh, 1976 2 SCC 152:-

(3.) A careful reading of the above extract will make it manifest that the case does not support the Appellant's stand even in the minutest measure. The proceedings before the Court of Original Jurisdiction had come to their final end, in contradistinction to an intermediary stage as in the case in hand is, since only an interim application has been considered and decided in the impugned Order. For the same reason, reliance on Ravulu Subba Rao -vs- CIT, 1956 AIR(SC) 604 is of no advantage to the Appellant. We think it imperative that all legal points such as limitation, estoppel, res judiciata and maintainability in law of the suit etc. must necessarily be raised before and thereupon cogitated upon and decided by the Trial Court in the intermediary stages of the lis for a decision to be rendered with regard thereto. We think so for the simple reason that in the continuum of the case, corrective action should not be thwarted. We are in no manner of doubt that a party who invites the Court to bring legal proceedings to a conclusion earlier than what is envisaged by established procedure must present all the grounds before the Court of first instance. Such a party cannot be permitted to attack the order on fresh grounds at the appellate stage as that would work disadvantage to the other party. We are fortified in this view by the observations made in Umashanker Pandey -vs- B.K. Uppal, 1991 2 SCC 408 where their Lordships in conclusion held that - "the petitioner would not be justified in assailing the impugned order on entirely fresh grounds which he has not raised before the High Court except in review petition, the order of which is not challenged".