pvr １ ap150-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.150 OF 2010 IN CHAMBER SUMMONS NO.1783 OF 2008 IN SUIT NO.1729 OF 1987 Khoday India Ltd. ...Appellant vs. 1.The Scotch Whisky Association & Ors. ...Respondents --- Mr.D.D.Madan, Sr.Advocate i/b. Wadia Gandhy & Co., for Appellant. Dr.Virendra Tulzapurkar, Sr.Advocate with Ms.Kirti Munshi & Mr.Amit Jamsandekar @ Zubin Morris i/b. M/s.Little & Co., for Respondents. --- CORAM: D.K.DESHMUKH & ANOOP V. MOHTA, JJ. DATED: 12th September,2011. pvr ２ ap150-10 P.C.:- 1. By this appeal, the original defendant challenges order dated 7.10.2009 passed by the learned Single Judge of this Court in Chamber summons no.1783 of 2008 taken out in Suit no.1729 of 1987. That suit was filed by the present respondent wherein certain reliefs were claimed. The defendant in that suit took out a chamber summons seeking order of rejection of plaint on the ground that the issue involved in the suit is decided by the judgment of the Supreme Court dated 27.5.2011 reported in (2008)10 SCC 723. The chamber summons has been rejected by the learned Single Judge. Initially an objection was raised to the maintainability of the appeal on behalf of the respondent. However, in view of the judgment of the Supreme Court in the case Shah Babulal Khimji Vs. Jayaben Kania & Anr., AIR 1981 SC 1786 it appears that the appeal would be maintainable. However, we are not pvr ３ ap150-10 inclined to entertain the appeal because, according to us, apart from the merit of the controversy, the defendant was not justified in taking out chamber summons for rejection of the plaint on the ground that the suit is barred by res judicata. When we asked the learned Counsel appearing for appellant as to under what provision and under which law he has taken out the chamber summons, the learned Counsel informed us that the chamber summons was taken out under Order 7 Rule 11(d) of the Civil Procedure Code. Perusal of that Rule shows that under that Rule plaint can be rejected where the suit appears from the statement in the plaint to be barred by any law. In the chamber summons, it was not the case of the appellant that the suit is barred by res judicata and it is also apparent from the statement made in the plaint. The learned Counsel then submitted that under Section 151 of the Civil Procedure Code the suit could have been dismissed by the Court as barred by res judicata. pvr ４ ap150-10 He relied on two judgments viz. (i) judgment delivered by the learned Single Judge of Madras High Court in the case Nesammal & Ors. Vs. Edward & Ors., 1999 A.I.H.C. 470 and (ii) judgment delivered by the Supreme Court in the case Abdul Rehman Vs. Prasony Bai & Anr., (2003)1 Supreme Court Cases 488 . Perusal of the judgment delivered by the learned Single Judge of the Madras High Court shows that the learned Single Judge has held that even if the Court cannot reject the plaint under Order 7 Rule 11, the Court can dismiss the suit under Section 151 of C.P.C. But reading of paragraph 11 of that judgment shows that even for invoking the provisions of Section 151 of C.P.C. for rejecting the plaint, the suit must be barred on the basis of the allegations made in the plaint. The learned Single Judge has observed that it is not that the defendant can take out a chamber summons for rejection of plaint, if on reading the allegations made in the plaint show that the same pvr ５ ap150-10 is abuse of the process of law. So far as the matter before the Supreme Court in the case Abdul Rehman Vs. Prasony Bai & Anr., (2003)1 Supreme Court Cases 488 is concerned, in that case the Rajasthan High Court had withdrawn the suit from the Lower Court exercising its power under Section 24 read with Section 151 of C.P.C. In that civil suit, issue as to  whether the suit is barred by res judicata has already been raised and that issue was tried as preliminary issue by the High Court and the suit was dismissed. In the present case, admittedly, in the written statement there is no issue of res judicata raised, and therefore, it is clear that the suit could not have been dismissed at this stage because the defendant has taken out a chamber summons. In our opinion, the learned Single Judge has rightly rejected the chamber summons though for different reasons. The appeal is, therefore, rejected. However, this order will not come in the way of the defendant raising the pvr ６ ap150-10 plea of res judicata in his written statement. As appeal itself is disposed of Notice of motion no.755 of 2010 does not survive for consideration, it is disposed of. (D.K.DESHMUKH, J.) (ANOOP V.MOHTA, J.)