This Civil Revision Petition has been filed by the petitioner/defendant to set aside the order dated 24.01.2007 passed in I.A.No.7355 of 2005 in O.S.No.7567 of 2000 by the VI Assistant Judge, City Civil Court, Chennai incharge of V Assistant Judge, City Civil Court, Chennai.
2. The defendant in O.S.No.7567 of 2000 is the revision petitioner before this Court.
3. The suit in O.S.No.7567 of 2000 was filed by the respondent/plaintiff initially for declaration declaring that the show cause notice dated 25.11.2000 issued by the defendant to the plaintiff is null and void and unenforceable. Subsequently, the prayer was amended and prayer (aa) has been added, as per the amended prayer (aa) for declaration declaring that the consequential order passed by the defendant dated 14.02.2001 in pursuance to the show cause notice dated 25.11.2000 is null and void and unenforceable in law and also for permanent injunction. Pending suit, an application in I.A.No.7355 of 2005 was filed by the revision petitioner herein under Section 51 of CPC to dismiss the suit as infructuous. The said application was resisted by the respondent/plaintiff by filing a detailed counter. The trial Court by order dated 22.11.2005, after hearing the learned counsel on either side dismissed the application with costs. Thereafter, civil revision petition in CRP.No.1848 of 2006 was filed by the defendant, wherein this Court remanded the matter to the trial Court for fresh disposal. After remand, the trial Court by order dated 24.01.2007 made in I.A.No.7355 of 2005 in O.S.No.7567 of 2000, dismissed the application once again. Aggrieved by the same, the above civil revision petition has been filed by the defendant.
4. This Court on 21.10.2009 ordered notice and granted interim stay. The respondent/plaintiff has entered appearance through counsel.
5. I have heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent and I have also gone through the documents made available and the counter affidavit filed on behalf of the respondent/plaintiff.
6. The learned counsel appearing for the petitioner/defendant would submit that the respondent/plaintiff originally filed the suit in O.S.No.7567 of 2000 declaring the show cause notice issued by the defendant on 25.11.2000 is null and void. The respondent is a dealer in petroleum products at No.245, Royapettah High Road, Chennai. On the inspection conduct by the petitioner/defendant, it was found the samples did not meet the specifications. Since it was an irregularity, a show cause notice dated 25.11.2000 was issued to the respondent/plaintiff. Challenging the same, the suit has been filed by the respondent/plaintiff. No explanation to the show cause notice was offered. An order of injunction was obtained against the respondent from interfering with their dealership business on 01.12.2000. Thereafter, at the instance of the respondent/defendant, the injunction application was dismissed on 12.02.2001. The Civil Miscellaneous Petition and the Civil Revision Petition filed by the respondent/plaintiff questioning the order of the dismissal of the injunction application by the trial Court were also dismissed by the respective courts. The Special Leave petition filed before the Hon'ble Supreme Court was also dismissed. Thereafter, the petitioner/defendant imposed an order of punishment by stopping the sales and supplies to the outlet of the plaintiff. Consequently, the petitioner/defendant filed I.A.No.7355 of 2005 in the pending suit to dismiss the suit as it has become infructuous. The main contention of the petitioner/defendant was that by the suspension of the sales for 45 days, the plaintiff has undergone the punishment and hence there is nothing further to be agitated in the suit. The said application was resisted by the respondent/plaintiff by filing a counter, contending that though the period of suspension has been undergone by the respondent/plaintiff, the suit has been filed for a declaration challenging the consequential order of suspension also. Therefore, the suit has to be necessarily tried. The trial Court dismissed the application filed by the petitioner/defendant on 24.01.2007. Challenging the same, the above C.R.P. has been filed.
7. According to the learned counsel for the petitioner/defendant, the trial Court has committed a grave error in not dismissing the suit as prayed for in application I.A.No.7355 of 2005. The order of the trial Court is opposed to well settled legal positions, particularly the decision rendered by the Hon'ble Supreme Court in AIR 2004(SC)2093 (Shipping Corporation of India Ltd., Vs. Machado Brothers and others). He adds that the trial Court ought to have seen that undergoing the suspension of supplies for a period of 45 days would automatically make the suit infructuous, as there is no cause of action at all in the suit to be agitated further. He further adds that continuing the litigation would only be flogging a dead horse which will not result in any decision in favour of any party excepting wasting Court's precious time. He further submits that failure to take note of the subsequent event causes grave prejudice to the petitioner. Therefore, he adds that the order of the trial Court warrants interference by this Court. Further according to the learned counsel for the petitioner/defendant, the respondent/plaintiff filed the above suit questioning the show cause notice dated 25.11.2000. Subsequently, on 10.10.2003, a second show cause notice was issued by the petitioner/defendant to the respondent/plaintiff. Therefore, this second show cause notice would only prevail upon and make the earlier show cause notice issued on 25.11.2000 to disappear. The original cause of action, according to him would vanish with the second show cause notice dated 10.10.2003 and therefore, the suit filed on the basis of the first show cause notice has become infructuous. Hence, the learned counsel submits that the order passed by the trial Court on 24.01.2007 rejecting the application is illegal, without jurisdiction, against equity and hence, he prays for interference by this Court.
8. Per contra, the learned counsel appearing for the respondent/plaintiff would submit that the order passed by the trial Court on 24.01.2007, which is challenged by the petitioner/defendant in this CRP does not suffer from any infirmity or illegality. According to him, the trial Court has correctly understood and appreciated the fact and the law involved and then rendered the finding. According to him, the suit was filed based on the show cause notice issued by the petitioner/defendant on 25.11.2000 for the alleged irregularity committed by the respondent/plaintiff, which was said to have been found out by the officials of the petitioner/defendant on 03.11.2000 in an inspection done by them. In pursuance of the said show cause notice orders were passed by the Courts and finally the petitioner/defendant suspended the sales and supplies to the respondent/plaintiff out let for a period of 45 days. Thereafter, the plaintiff amended the prayer in the suit declaring that the consequential order of suspension passed by the petitioner/defendant on 14.02.2001 is illegal and bad. According to him, the amendment has been rightly allowed and the suit has to be tried on merits.
9. Further according to the learned counsel for the respondent/plaintiff, the second show cause notice issued by the petitioner/defendant on 10.10.2003 is based on the subsequent inspection carried out by the officials of the petitioner/defendant on 27.09.2003 in the plaintiff's outlet wherein they have said to have found out certain irregularities. After giving a suitable reply to the said notice, a writ petition was also filed by the respondent/plaintiff, wherein the petitioner was permitted to file their objections afresh to the petitioner/defendant and the petitioner/defendant was directed to conduct an enquiry. Therefore, according to the learned counsel for the respondent/plaintiff the second show cause notice dated 10.10.2003 is totally different in content and consequence and it can never be said that the same would make the first show cause notice dated 25.11.2000 ineffective or make it disappear so as to contend the suit has become infructuous. Thus he adds that the trial court has clearly held that 10.10.2003 show cause notice is a different one, sent for a different irregularity noticed by the defendant on a subsequent day and it has nothing to do with the earlier first show cause notice dated 25.11.2000. Therefore, according to him the order of the trial court is perfectly correct and there is no infirmity in the same so as to be interefered with by this court.
10. I have heard the rival submissions carefully with regard to facts and the citation.
11. The suit in O.S.No.7567/2000 has been filed by the respondent/plaintiff declaring that the show cause notice dated 25.11.2000 issued by the petitioner/defendant is null and void and unenforceable in law and also for a declaration that the consequential order passed by the defendant on 14.02.2001 in pursuance to the show cause notice dated 25.11.2000 is null and void and also for a permanent injunction. The show cause notice dated 25.11.2000 was issued by the petitioner/defendant on the basis of an inspection carried out by them in the Petrol bunk of the respondent/plaintiff on 03.11.2000. Since the officials of the petitioner/defendant noticed certain irregularities in the samples taken the said show cause notice dated 25.11.2000 was issued. Further, pending show cause notice, an order of suspension of supplies to the respondent/plaintiff was made on 14.02.2001. Therefore, the prayer was amended accordingly to challenge the said consequential order of suspension of supplies to the plaintiff.
12. Pending suit an application in I.A.No.7355/05 was filed by the petitioner/defendant to dismiss the above suit as one having become infructuous on the ground that the plaintiff had suffered a suspension of supplies and sales of petroleum products for a period of 45 days by way of punishment as per the order dated 14.02.2001. The punishment undergone by the plaintiff would result in no cause of action for the plaintiff in the suit and therefore, the petitioner/defendant sought for dismissal of the suit on that score in this application. The said application was resisted by the respondent/plaintiff by filing a counter. The plaintiff's primary contention was that the plaintiff has also challenged the subsequent order of suspending sales and supplies to the respondent/plaintiff in the same suit by amending the prayer and therefore the suit has to be tried to see whether the order suspending the sales and supplies to the respondent/plaintiff is justified or not. Therefore, it cannot be said that the suit has become infructuous. It was also contended by the respondent/plaintiff that the subsequent show cause notice dated 10.10.2003 is based on another inspection held on 27.09.2003 in the plaintiff's outlet and that is in no way connected to the case on hand. Thus the instances are different and clubbing those two is totally incorrect and uncalled for. Therefore, he sought for dismissal of the application. The trial Court on 22.11.2005 on hearing both sides, dismissed the application. However, on the revision filed by the petitioner/defendant in CRP.No.1848 of 2005 against the order of dismissal dated 22.11.2005, this Court remitted back the case to the trial court for reconsideration, particularly in the light of the judgment referred to by the petitioner/defendant in 2004 SC 2093 cited supra.
13. On remand, the trial Court went into the question once again in detail and held that the application filed by the petitioner/defendant does not merit any consideration and ultimately dismissed the application on 24.01.2007. A perusal of the order dated 24.01.2007 which has been challenged by the petitioner/defendant in this CRP would clearly show and establish that the trial Court has considered the entire fact and law in proper perspective and passed a well considered order dismissing the application.
14. The trial Court has categorically held that the subsequent notice dated 10.10.2003, which the petitioner/defendant would emphasize that the same would make the earlier show cause notice dated 25.11.2000 ineffective and infructuous, is for a different cause of action and it would no way vanish the earlier show cause notice.
15. Further, a perusal of the judgment of the Hon'ble Supreme Court reported in AIR 2004 SC 2093, (cited supra) would make it very clear that this decision would in no way render any support to the case of the petitioner/defendant. That was a case where the applicant therein was appointed as an agent of steamship for the purpose of handling tankers, bulk carriers and tramp vessels at the port of Tuticorin. The agency was terminated by the appellant by issuing a show cause notice on 21.02.1995. A suit was filed by challenging the said termination. An order of injunction was also granted by the trial Court in the suit. During the continuation of the agency, the appellant noticed certain financial irregularities and was contemplating to take fresh steps to terminate agency once again. Anticipating such termination, the respondent filed another suit for production of accounts. During the pendency of these two suits, the appellant terminated the agency of the respondent on the ground that the respondent charging excess amount and also charged tampering with the invoices and bills. Another suit was therefore filed by the respondent for permanent injunction. In that background, an application for dismissing the suit on the ground the same has become infructuous because of the subsequent and fresh notice of termination issued which was the subject matter of the third suit. While deciding that issue, the Hon'ble Court held as under:-
"25. Thus it is clear that by the subsequent event if the original proceeding has become infructuous, ex debito justitiae, it will be the duty of the Court to take such action as is necessary in the interest of justice which includes disposing of infructuous to the parties concerned to make an application under Section 151 of CPC to bring to the notice of the Court the facts and circumstances which have made the pending litigation infructuous. Of course, when such an application is made, the Court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not.
26. Having thus understood the law, we will now consider whether the Courts were justified rejecting the application filed by the appellant herein for dismissing the suit on the ground that the same had become infructuous. In this process, we have already noticed that there seems to be no dispute that the original termination notice based on which first suit O.S.No.4212/95 was filed, has since ceased to exist because of the subsequent termination notice issued on 23.08.2001, validity of which has already been challenged by the respondent in the third suit.
27. While dismissing the application I.A.No.20651/2001 the Courts below proceeded not on the basis that the original notice of termination has not become infructuous, but on the basis that the said application lacks in bona fide and if the said application is allowed the interlocutory injunction hitherto enjoyed by the plaintiff will get vacated and consequently the plaintiff will be prejudiced. The question for our consideration now is whether such ground can be considered as valid and legal. While so considering the said question one basic principle that should be borne in mind is that interlocutory orders are made in aid of final orders and not vice versa. No interlocutory order will survive after the original proceeding comes to an end. This is a well established principle in law as could be seen from the judgment of this Court in Kavita Trehan (Mrs.) and another v. Balsara Hygiene Products Ltd. (1994 (5) SCC 380), wherein it is held:
"Upon dismissal of the suit, the interlocutory order stood set aside and that whatever was done to upset the status quo, was required to be undone to the extent possible."
28. Therefore, in our opinion, the Courts below erred in continuing an infructuous suit just to keep the interlocutory order alive which in a manner of speaking amounts to putting the cart before the dead horse.
29. The next ground given by the Courts below that the dismissal of the suit would prejudice the respondent, again on the ground of interlocutory order getting dissolved, cannot also be sustained. If the suit in fact has become infructuous consequences of dismissal of such suit cannot cause any prejudice to the plaintiff. As a matter of fact, the consequence should be to the contrary, that is, such continuance of infructuous suit would cause prejudice to the defendant.
30. We have already noticed that the Courts below have also held that the application of the appellant lacks in bona fide. We fail to understand how this is so. If a party has a legal right to ask for dismissal of an infructuous suit, and pursuant to the said right it makes an application for dismissal of said suit, the same cannot be termed as an act in malice.
31. For the reasons stated above, we are of the opinion that continuation of a suit which has become infructuous by disappearance of the cause of action would amount to an abuse of the process of the Court and interest of justice requires such suit should be disposed of as having become infrctuous the application under Section 151 of CPC in this regard is maintainable."
16. In the above judgment, the Hon'ble Supreme Court has held that the original termination notice, on which the first suit was filed has ceased to exist, because of the subsequent termination notice on 23.08.2001, the validity of which has been already challenged by the respondent in the third suit. By issuance of second notice, the earlier termination notice dated 23.02.1995 stood terminated. The Hon'ble Supreme Court has further held that continuation of a suit which has become infructuous by disappearance of the cause of action would amount to an abuse of the process of the court and interest of justice requires that the suit should be disposed of as having become infructuous.
17. Whereas in the case on had, it can never be said the show cause notice issued on 10.10.2003 would make the cause of action of the earlier show cause notice issued on 25.11.2000 disappear. As seen from the records, 25.11.2000 show cause notice was issued on the basis of the inspection carried out by the officials of the petitioner/defendant in the petrol bunk of the plaintiff on 03.11.2000. Whereas the second show cause notice dated 10.10.2003 issued by the petitioner/defendant is based on the inspection carried out by the officials of the petitioner/defendant in the petrol bunk of the respondent/plaintiff on 27.09.2003. This second show cause notice is not the subsequent action that follows the earlier show cause notice so as to say that the second show cause notice would make the earlier show cause notice disappear. Therefore, the judgment of the Hon'ble Supreme Court has not application at all to the facts of the case on hand and the trial Court has correctly and rightly distinguished the same and dismissed the application filed by the petitioner/defendant.
18. Moreover, the suspension suffered by the plaintiff by the order of the petitioner/defendant passed on 14.02.2001 has also been challenged in the suit. Therefore, in the light of the fact and law, the contention put forth by the petitioner/defendant has to be rejected and the order of the trial Court has to be upheld.
19.In the result, the above Civil Revision petition is dismissed and the order passed by the trial Court on 24.01.2007 is upheld. No costs. Consequently,connected MPs. are also closed.
20. Since, the suit is of the year 2000 and the same is also ready for trial, I direct the trial Court to dispose of the suit as expeditiously as possible.
07.12.2009 rrg Index : Yes/No Internet: Yes/No To The Assistant Judge, City Civil Court, Chennai-104.
S.RAJESWARAN,J.
rrg CRP(PD)No.1098 of 2007 07.12.2009