Where two remedies are available under law, one of them should not be taken as operating in derogation of the other

High Court of Himachal Pradesh: While deciding a petition filed under Article 227 of the Constitution challenging the order passed by the learned trial court whereby the application filed by the petitioner for rejection of the plaint was dismissed, a Single Judge Bench of Tarlok Singh Chauhan, J. allowed the petition and set aside the impugned order.

The petitioner-defendant had moved an application under Order 7 Rule 11 read with Section 151 of CPC for rejection of the plaint on the ground that the subject-matter of the civil suit as also the appeal/revision pending before the Divisional Commissioner, Mandi was same and, therefore, the plaint ought to be rejected. The learned trial court rejected the application without even adverting to the grounds as has been taken in the application.

The Court perused the material placed on record and found that the proceedings that had been decided by the Assistant Collector had already been assailed before the Divisional Commissioner and the same were otherwise pending at the time when the suit came to be filed by the plaintiff questioning therein again the order passed by the Assistant Collector.

The Court was of the view that as a general principle where two remedies are available under law one of them should not be taken as operating in derogation of the other. If a party elected to pursue one remedy he was bound by it and could not on his failing therein proceed under another provision.

Accordingly, the Court found merit in the petition and allowed the petition by setting aside the impugned order and the suit filed by the plaintiffs was ordered to be rejected under Order 7 Rule 11 CPC. [Dalip Singh v. Lal Singh, 2017 SCC OnLine HP 1422, decided on 13.9.2017]

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