COOPER PHARMA & ORS Vs. SHAMSHAD AHMAD

JUDGEMENT

(1.) By means of present writ petition, petitioners have sought a writ of certiorari quashing the impugned judgment and order dated 26.11.2014 (Annexure No.11) passed in Civil Revision No.1 of 2011 Shamshad Ahmad vs. M/s Cooper Pharma and others.

(2.) Facts leading to filing of present writ petition are that the petitioners filed a suit being O.S. No.49 of 2008 against the respondent for a relief of mandatory injunction. Respondent/defendant contested the suit and filed his written statement. In the written statement, the respondent/defendant denied the plaint averments and contended that a suit being O.S. No.487 of 2002 was filed by him for a decree of permanent injunction against The Pradeshiya Industrial and Investment Corporation, State of Uttarakhand and U.P. Industrial Corporation, wherein the defendants did not appear and the suit was decreed in his favour by judgment and decree dated 07.04.2003. It was also contended that the plaintiffs are claiming rights from Pradeshiya Industrial and Investment Corporation Ltd. on the basis of lease deed in their favour. It was further contended that the Pradeshiya Industrial and Investment Corporation Ltd. has filed an application for setting aside the ex-parte judgment and decree dated 07.04.2003, under Order 9 Rule 13 of C.P.C. which is registered as Misc. case no.67 of 2003, and which is still pending. In the written statement, it was also stated that the suit of the plaintiff is not maintainable and is barred by Section 10 and 11 of C.P.C. Further, as the decree has been passed against the predecessors of the plaintiffs, therefore, the plaintiffs' suit is barred by the principles of res judicata in view of provisions contained in Section 11 of C.P.C. On the pleadings of parties, trial court framed necessary issues in the matter. The trial court, vide order dated 26.11.2010 decided issue nos.3 and 4 as preliminary issues. Issue no.3 was framed to the effect "whether the suit of the plaintiff is barred by the provisions of Section 10 and 11 of C.P.C. Issue no.4 was framed to the effect "whether the suit is barred by provisions of Order 7 Rule 11 CPC". The trial court on issue no.3 recorded a finding that for stay of subsequent suit, it is necessary that two suits are pending simultaneously in courts with similar jurisdiction and both have same cause of action and have same parties. The trial court further held that the earlier suit had been decreed ex-parte and an application under Order 9 Rule 13 CPC is pending adjudication which would not tantamount to a pending suit and as such plaintiff's subsequent suit is not barred by Section 10 C.P.C. On issue no.4, the trial court recorded finding that the plaintiffs' suit is not barred by Section 11 C.P.C. since the defendant's suit was not decided on merit rather it was an ex-parte decree. The trial court further recorded a finding that the suit is not barred by Order 7 Rule 11 CPC.

(3.) Feeling aggrieved by order dated 26.11.2010, the defendant preferred civil revision being Civil Revision No.1 of 2011. The revisional court, vide judgment and order dated 26.11.2014, allowed the revision in part with the observation that the maintainability of the original suit no.49 of 2018 in view of the provisions of Section 10 and Section 11 of C.P.C. would depend upon the judgment of Misc. case no.67 of 2003 and stayed the proceedings of the suit till the disposal of misc. case no.67 of 2003. Feeling aggrieved, the plaintiffs/petitioners have approached this Court.