Madras High Court
Ms.Anantha Agencies vs Ms.Bharat Petroleum on 17 April, 2006
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17/04/2006
CORAM
THE HON'BLE MR.JUSTICE M.JAICHANDREN
CRP.(NPD) No.2238 of 2005
and civil miscellaneous petition No.19919 of 2005
Ms.Anantha Agencies,
Rep.by its Manager J.Kamalakannan,
No.432, P.H.Road,
Maduravoyal,
Chennai 602 102 .... Petitioner
-Vs-
1. Ms.Bharat Petroleum
Corporation Ltd.,
Rep.by its Managing Director,
Bharat Bhavan,
4&5, Curimbhoy Road,
Ballard Estate,
P.B.No.688,
Mumbai 400 001.
2. The Territory Manager(Retail),
Bharat Petroleum Corporation Ltd,
No.35, Vaidyanathan Mudali Street,
Chennai 600 081. ... Respondents
PRAYER: This Civil Revision Petition is filed against the Order, dated
23.09.2005, made in I.A.No.12194 of 2005 in O.S.No.6352 of 2000 on the file of
the learned 2nd Assistant Judge,City Civil Court, Chennai.
!For petitioner : Mr. A.Gunaseelan
^For respondents : Mr.O.R.Santhanakrishnan
:ORDER
This Civil Revision Petition has been filed against the Order, dated 23.09.2005, made in I.A.No.12194 of 2005 in O.S.No.6352 of 2000 on the file of the learned 2nd Assistant Judge,City Civil Court, Chennai.
2. It is the case of the petitioner agency that it is carrying on the business of agency in petroleum and its allied products supplied by the first respondent company. The petitioner agency had filed O.S. No.6352 of 2000 on the file of the 2nd Assistant Judge, City Civil Court, Chennai, against the respondents herein, who were the defendants in the suit, seeking :-
a) to declare the order of suspension, dated 16.09.2000, in reference No.M42.01 passed by the second respondent as null and void
b) for granting a consequential permanent injunction restraining the defendants or their men or servants, agents or any one acting on their behalf, or under their direction, from in any manner or in any way acting or initiating any action pursuant to the order of suspension, dated 16.09.2000, in reference No.M42.01 and for costs.
3. It is also the case of the petitioner agency that it is a dealer, dealing in the products of the respondents, since 1962 and the products include Motor Spirit, High Speed Diesel (HSD), other lubricants and miscellaneous products. The lubricants are supplied by the respondents in sealed barrels/tins and they are sold in loose by the petitioner agency, by transferring the same to small convenient containers, depending upon the quantity of sale. One of such lubricants bought by the petitioner agency in bulk is 'Glide Gold FC 2T Oil' and Engine Oil (MAK)'. The petitioner agency has been dealing with the respondents products for a very long time and so far there were no irregularities or violations of any rules in respect of the sales of the products supplied by the respondents. However, on 08.08.2000, the officers of the respondent company inspected the petitioner's retail outlet and collected samples of 'Glide Gold FC', a lubricant, in two pet bottles, which are plastic containers meant for Bisleri water . The bottles containing the samples were sealed and signed by the officers of the respondent Company and counter signed by the petitioner's representative. On 02.09.2000, a show cause notice was issued by the first respondent as to why suitable action should not be taken against the petitioner agency for selling adulterated lubricants. A detailed explanation was submitted on behalf of the petitioner agency, on 09 .09.2000. However, by an order, dated 16.09.2000, the sales and supplies of all products being done by the petitioner agency was suspended for a period of 30 days, from 15.09.2000 to 15.10.2000. A further representation was submitted on behalf of the petitioner agency, on 1 9.09.2000, requesting the respondents to cancel the order of suspension, dated 16.09.2000. According to the petitioner agency, sales and supplies of lubricants is governed by the Lubricants Control Order 87 and as far as the sampling procedure and testing of samples are concerned, it is governed by the Marketing Discipline Guidelines issued by the oil marketing companies.
4. It is the further case of the petitioner agency that none of the mandatory procedures contained in the Market Guidelines, 1998, have been followed by the respondents for collection and inspection of samples and therefore, the consequential order, dated 16.09 .2000, is patently illegal. Hence, the petitioner had filed a suit for declaration and consequential injunction.
5. It is further stated that the petitioner agency had filed I.A.No.16692 of 2000 for an order of interim injunction restraining the respondents from enforcing the order of suspension, dated 16.09.2000, so as to enable the petitioner agency to resume sales and supply at their retail outlet, pending disposal of the suit . An order of interim injunction was granted on 09.10.2000, and notice was issued to the respondents returnable by 16.10.2000. Despite service of notice, in compliance with Order 39, Rule.3 of the Code of Civil Procedure, the respondents remained absent and they were set ex parte. The interim injunction was made absolute and the petition was allowed on 16.10.2000 . Later, the respondents had filed a petition to setaside the ex parte order in I.A.No.18006 of 2000 and notice was served on the petitioner's counsel 'No Objection' endorsement was made in I.A.No.18006 of 2000, on 23.11.2000, and the petition stood allowed. A notice was received by the petitioner agency, on 10.01.2001, suspending the sales and supply for five days. On verification of the records, it was found that the interim order granted earlier was not extended beyond 2 3.11.2000, as there was no necessity for the same as what was set aside is only the ex parte order and not the order making the interim injunction absolute. The petitioner agency had then filed the application for advancing the hearing in I.A.No.16692 of 2000, on 11.06.200 1. The said I.A. was dismissed as having become infructuous in as much as the order of suspension of sales and supplies was only for a period of 30 days as per the order, dated 16.09.2000. Thereafter, the respondents filed the written statement on 14.09.2001, contending that they have not violated the provisions of the Marketing Discipline Guidelines and also they had adopted proper procedure for testing the samples of lubricants obtained from the retail outlet of the petitioner agency.
6. The petitioner agency had also filed I.A.No.16693 of 2000 seeking permission to send the duly sealed and signed sample of the lubricant to a laboratory at I.I.T, Guindy, listed in Schedule-II, which is a notified laboratory, for an analysis report. However, on 26.04.2002 , the said interim application was dismissed and the petitioner agency did not pursue the matter further. It is also the case of the petitioner agency that the defendants in the suit, who are the respondents herein, had not raised the issue that the suit has become infructuous till the very end and only at the stage when the suit was listed in the the special list for trial, on 3.08.2005, an interim application in I.A.No.12194 of 2005 was filed by the respondent herein, under Section 151 of the Civil Procedure Code, praying for dismissal of the suit as infructuous.
7. Eventhough the petitioner had filed a detailed counter opposing the interim application in I.A.No.12194 of 2005 stating that the suit was not infructuous and there were triable issues still to be decided by the court, the trial court, placing reliance on the judgment reported in A.I.R 2004 SC 2093, dismissed the suit O.S.No.6352 of 2000 by its order, dated 23.09.2005, by allowing the interim application No.12194 of 2005.
8. In Shipping Corporation of India Ltd Vs. Machado Brothers and others reported in AIR 2004 Supreme Court 2093 it has been held as follows:-
"................ By the subsequent event if the original proceeding has become infructuous, exdebito 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 litigation. For the said purpose it will be open to the parties concerned to make an application under S.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 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."
9. The learned counsel for the petitioner places reliance on the various cases decided by the various Courts to support his contentions.
In Krishena Kumar Vs. Union of India and Others (AIR 1990 Supreme Court 1782,) it has been held as follows:-
"18. The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain "propositions wider than the case itself required." This was what Lord Selborne said in Caledonian Railway Co. Vs. Walker's Trustees (18 82 (7) AC 259) and Lord Halsbury in Quinn V.Leathem (1901) AC 495 (50 2). Sir Frederick Pollock has also said:
"Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision."
19. In other words, the enunciation of the reason or principle upon which a question before a Court has been decided is alone as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a preexisting rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the Court to spell it out with difficulty in order to be bound by it. In the words of Halsbury, 4th Edn., Vol.26, Para 573:
" The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi."
9.1. In Commissioner of Income Tax Vs. M/s.Sun Engineering Works (P) Ltd ( AIR 1993 Supreme Court 43) it has been held as "...........It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings. In Madhav Rao Jiwaji Rao Scindia Bahadur Vs. Union of India, (1971) 3 SCR 9 :
(AIR 1971 SC 530 at P.578) this Court cautioned :
" it is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment."
9.2. In Delhi Municipal Corporation Vs. Gurnam Kaur ( AIR 1989 Supreme Court 38,) it has been held as follows:-
" it is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law' applies to the principle of a case, its ratio decidend The only thing in a Judge's decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. Professor P.J.Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn., explains the concept of sub silentio at p.153 in these words;
"A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio."
10. Quoting from the above decisions, the learned counsel for the petitioner contends that the decision of the Supreme Court reported in AIR 2004 Supreme Court 2093 does not apply to the facts and circumstances of the suit O.S.No.6352 of 2000.
11. On the other hand, the learned counsel for the respondents had denied the allegations of the petitioner as incorrect and unsustainable in law. He had submitted that the sampling procedures were done in accordance with the Marketing Discipline Guidelines and there was nothing wrong in the order passed by the respondents on 16.09.2000, suspending the sales and supplies of all products from the petitioner agency's retail outlet for a period of 30 days commencing from 15.09.20 00 to 15.10.2000. He has further contended that the order had worked itself out and therefore, an I.A. was filed on behalf of the respondents in I.A.No.12194 of 2005 to dismiss the suit O.S.No.6352 of 2000 as infructuous. He has also vehemently contended that the order passed by the learned trial Judge, on 23.09.2005, in I.A.No.12194 of 2005 is perfectly right and within his jurisdiction. The said order was based on the Judgment reported in AIR 2004 Supreme Court 2093, which squarely applied to the facts and circumstances of the case. The learned counsel for the respondents had also pointed out that what is challenged in the present civil revision petition is only the order made in an interim application, while it is the fact that the suit O.S. No.6352 of 2000 itself was disposed of as infructuous by a Judgment and decree, dated 23.09.2005, which is as follows :-
" This suit coming on this day for final disposal before me, in the presence of Tvl.Mohan and K.Ramkumar counsel for plaintiff and of M/ s.O.R.Santhanakrishnan, K.S.Beena Unni & P.Pushpa Rani counsel for defendants and I.A.12194/2005 filed by the defendants having been allowed and the suit having been reported as infructuous this Court doth order and decree as follows :-
1. that the suit be and the same is hereby dismissed as infructuous.
2. that there be no costs in the suit."
12. It is clearly seen that the Order and decree, dated 23.09.2005, made in I.A.No.12194 of 2005, dismissing the suit O.S.No.6352 of 2000 , is a decree as defined under Clause 2 of Section 2 of the Code of Civil Procedure, 1908. As such only an appeal under Section 96 of the Code, would be the appropriate remedy open to the petitioner agency. Section 2(2) of the Code of Civil Procedure reads as follows :-
"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
a) any adjudication from which an appeal lies as an appeal from an order, or
b) any order of dismissal for default.
Explanation : A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;
Section 96(1) of the Codes is as follows :-
"Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court."
Therefore, in the facts and circumstances of the case, this court is compelled to hold that the petitioner agency cannot canvas its cause in the present civil revision petition.
13. Thus, on a perusal of the records placed before this Court and the case laws quoted and on hearing the arguments adduced by the learned counsel representing the petitioner agency as well as the respondents , this court is of the considered view that the remedy open to the petitioner agency would be by way of an appeal against the order and decree in I.A.No.12194 of 2005, dated:23.09.2005, dismissing the suit O.S.No.6352 of 2000 and not by way of a civil revision petition before this Court. When such remedies are open to establish the rights, it is not open to the petitioner agency to seek the remedy by way of filing a civil revision petition. Therefore, the civil revision petition stands dismissed. Consequently, the connected civil miscellaneous petition is closed. No costs.
To
1. The Managing Director, Ms.Bharat Petroleum Corporation Ltd., Bharat Bhavan, 4&5, Curimbhoy Road, Ballard Estate, P.B.No.688, Mumbai 400 001.
2. The Territory Manager(Retail), Bharat Petroleum Corporation Ltd, No.35, Vaidyanathan Mudali Street, Chennai 600 081.