Bombay High Court
M/S. M.H. Construction Throuh Shri ... vs The State Of Maharashtra Through The ... on 27 September, 2018
Bench: S.C. Dharmadhikari, B.P. Colabawalla
COMAP248.18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL APPEAL NO. 248 OF 2018
IN
Syed NOTICE 0F MOTION NO. 2734 OF 2016
Rehmat IN
Pasha SUMMARY SUIT NO. 787 OF 2013
Digitally signed
by Syed Rehmat
WITH
Pasha NOTICE OF MOTION NO. 543 OF 2018
Date: 2018.10.01
15:47:44 +0530
M/s. M.H. Construction ... Appellant
Vs
1 The State of Maharashtra & Ors. ... Respondents
Mr. Govind B. Pawar for the Appellant.
Ms. Jyoti Chavan, AGP, for the Respondent Nos.1 to 3-State.
CORAM : S.C. DHARMADHIKARI &
B.P. COLABAWALLA, JJ.
THURSDAY, 27TH SEPTEMBER, 2018 P.C. :
1 We have heard learned advocate appearing for the appellant-original plaintiff. With his assistance, we have perused the impugned order and the relevant documents to which our attention has been invited by the learned counsel. SRP 1/3
COMAP248.18.doc 2 The order under challenge is made on a Notice of Motion of the appellant-plaintiff praying for a decree on admission. Order XII Rule 6 of the Code of Civil Procedure 1908 was invoked to claim such a decree.
3 The learned single Judge, in the impugned order, has observed that for the reasons indicated by him, at this stage, a decree cannot be passed on admission. More so, when the Suit was initially laid as a Summary Suit and the appellant-plaintiff could not succeed in obtaining a summary judgment in its favour. There were triable issues involved and unconditional leave to defend the Suit was granted to the State Government. In the circumstances, the discretion in not passing a decree on admission cannot be said to be exercised arbitrarily or capriciously.
4 We are of the opinion that the order under challenge does not conclusively decide any rights of the appellant-plaintiff either. In fact, the Suit is set down for recording evidence. The appellant-plaintiff will have to establish and prove his claim and SRP 2/3 COMAP248.18.doc while doing so, he can definitely rely on the materials to which our attention has been invited by the counsel for the appellant- plaintiff.
5 In the above circumstances, we do not find any merit in this Appeal and it is dismissed.
6 In view of the dismissal of the Appeal, nothing survives in the Notice of Motion and it is accordingly disposed of. B.P. COLABAWALLA, J. S.C. DHARMADHIKARI, J. SRP 3/3