S NARAIN SINGH Vs. RAM GOPAL MADAN LAL

JUDGEMENT

(1.) This is an appeal under Order 43, Rule 1 (r) of the Civil P. C., 1908 (hereinafter called the Act') challenging the judgment and order of the Additional District Judge, Delhi dismissing the appellant's application under Order 39 Rules 1 and 2 of the Code for temporary injunction against the respondents restraining them from proceeding with the arbitration proceedings. The respondents carry on business at Delhi while the appellants carry on business at Malout Mandi. District Faridkot There have been dealings between the appellants and the respondents. On 21st August, 1978 the parties entered into an agreement which may be called an arbitration agreement whereby they agreed that in case of disputes relating to their dealings, the same would be settled through the arbitration of Delhi Hindustani Merchantile Association, Delhi. The respondents on 15th May, 1979, filed a claim before the said association for Rs. 34,297.40 against the appellants. The appellants on 9th June, 1979 wrote a letter to the respondents sending a draft of Rs. 1000.00 and disputing the claim. He also prayed for adjournment of the proceedings before the Arbitrator. A copy of the letter was sent to the association. Similar letters were sent on 9th July, 1979 and 23rd July, 1979 requesting for adjournment of proceedings before the arbitrator. On 9th October, 1979 the appellants filed a suit before the District Judge, Delhi under Sections 31, 32 and 33 of the Indian Arbitration Act, 1940 claiming a declaration that there is no valid arbitration agreement between the parties and there is no valid reference under Chapter II of the Indian Arbitration Act and as such the respondent No. 3, Delhi Hindustani Mercantile Association has no authority to hold arbitration proceedings between, the parties. The appellants along with the suit filed an application under Order 39, Rules 1 and 2 of the Code. An ex parte injunction was granted by the Additional District Judge, Delhi on 9th October, 1979. The respondents filed their reply and written statement and On 21st Mar. 1980 at the time of hearing of the injunction application, the counsel for the appellants did not press his application and requested for its dismissal. Accordingly, the Additional District Judge. Delhi dismissed the appellants' application under Order 39, Rules 1 and 2 of the Code. I may mention that there is no prayer in the statements of the counsel for the plaintiffs-appellants for leave to file a fresh application on the same cause of action. It appears that the plaintiff-appellants also filed a similar suit for declaration under the Arbitration Act in the court at Giddarbaha, restrict Faridkot on 20-12-1979 wherein he obtained an ex parte injunction but on contest the injunction was vacated. An appeal was filed before the Additional District Judge at Faridkot but the appeal was also dismissed on 3rd April 1980. It is stated by the learned counsel for the respondents that the suit filed at Giddarbaha was also dismissed under Order 9, Rule 8 of the Code on 8th August, 1980. Learned counsel for the appellants however states that the proceedings for restoration under Order 9, Rule 9 of the Code are still pending in the court at Giddarbaha. It appears that after the dismissal of the injunction application and the suit by the courts at Giddarbaha the plaintiffs-appellants filed a fresh application under Order 39, Rules 1 and 2 in the trial court on 16th April, 1980. Reply to this application was filed on 15th May, 1980 and after hearing the parties, the trial court by the impugned order dated 15th July, 1980 dismissed the plaintiffs' application holding that the plaintiffs have failed to make out a prima facie case and that they would not suffer irreparable injury if the relief claimed is not granted. Hence this first appeal by the plaintiffs.

(2.) Learned counsel for the appellants has challenged the order of the trial court mainly on two grounds: (i) there is no dispute between the parties and hence there can be no arbitration and (ii) that the arbitration reference by the respondents by filing the claim on 15th May, 1979 before the association is invalid as the same has been filed without the consent of the appellant and without any notice to them. Learned counsel for the appellants further submits that there cannot be unilateral reference, The trial court after taking into consideration the facts of the litigation at Giddarbaha and before him came to the conclusion that there was no prima facie case in favour of the plaintiffs-appellants. After hearing the learned counsel for the parties, I do not deem it necessary to go into the question whether there is any dispute within the parties and whether there is any valid arbitration reference to the Delhi Hindustani Mercantile Association. This appeal can be disposed of on a very short point. Admittedly the plaintiffs filed the application under Order 39, Rules 1 and 2 on 8th October, 1979 wherein an ex parte injunction sought for by them was issued by the trial court. But this application was dismissed as being not pressed on 21st March, 1980. The question therefore is whether the plaintiffs- appellants are entitled to file a fresh application for injunction on the same grounds on which the previous application was dismissed. Order 23, Rule 1 of the Code reads as under:

(3.) Under sub-rule (4) a plaintiff is precluded from instituting any fresh suit in respect of the claim withdrawn by him. Thus if a plaintiff withdraws a suit, he is not entitled to file a fresh suit on the same cause of action. Similarly if the plaintiff files an application for the grant of a temporary injunction and after notice to the opposite party who has filed a reply and during the course of arguments the plaintiff withdraws the application for temporary injunction, it appears that the plaintiff is debarred from instituting a fresh application unless there has been change of circumstances since the date of dismissal of the previous injunction application. Section 141 of the Code makes the procedure applicable to the suits to all proceedings in court of civil jurisdiction. The proceedings for the grant of temporary injunction are proceedings in a civil court. Thus reading together O. 23 and Section 141 of the Code it appears that the present application for temporary injunction filed on 16th April, 1980 decided by the impugned order dated 15th July, 1960 is barred under sub-rule (4) of Rule 1 of Order 23 of the Code. On this ground alone I do not find any merit in the present appeal and I hold that the application of the plaintiffs-appellants for the grant of injunction restraining the respondents from proceeding with arbitration proceedings is not maintainable. The appeal is, therefore, dismissed but with no order as to costs.