Bombay High Court
Pramod S/O Manoharrao Konge vs Shri. Shantaram Balkrushna Dhok on 13 February, 2017
Author: Z.A. Haq
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6165 OF 2016
Pramod s/o Manoharrao Konge,
Aged 34 years, Occupation - Business,
R/o Plot No.29, Sai Colony,
Behind Nagpure School, Kalamna,
Pardi, Nagpur. .... PETITIONER
VERSUS
Shri Shantaram Balkrushna Dhok,
Aged 54 years, Occupation - Private,
R/o Plot No.1, Shri Colony, in front
of Padole Sabhagruha, Hudkeshwar
Road, Nagpur. .... RESPONDENT
______________________________________________________________
Shri Raju Dhoble, Advocate for the petitioner,
Shri V.V. Bhangde, Advocate for the respondent.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 13
FEBRUARY, 2017.
th
ORAL JUDGMENT :
Heard Shri Raju Dhoble, Advocate for the petitioner and Shri V.V. Bhangde, Advocate for the respondent.
2. Rule. Rule made returnable forthwith.
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3. The petitioner/original plaintiff takes exception to the order passed by the trial Court by which the application (Exhibit No.27) filed by him is rejected. The plaintiff has filed the civil suit praying for decree for specific performance of contract and for other reliefs. In this civil suit, the defendant filed an application (Exhibit No.18) under Order VII Rule 11(a) of the Code of Civil Procedure praying that the plaint be rejected. Before this application (Exhibit No.18) is decided, the plaintiff filed an application (Exhibit No.22) under Order VI Rule 17 of the Code of Civil Procedure seeking permission to amend the plaint. As this application was not being considered, the plaintiff filed an application (Exhibit No.27) praying that the application (Exhibit No.22) filed by him under Order VI Rule 17 of the Code of Civil Procedure be decided before the application (Exhibit No.18) filed by the defendant is considered. The learned trial Judge has rejected the application (Exhibit No.27) by the impugned order.
4. The learned Advocate for the respondent/defendant relying on the judgment given in the case of R.K. Roja vs. U.S. Rayudu and another reported in 2016(5) ALL MR 446(SC), has submitted that once the application under Order VII Rule 11 of the ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:12 ::: 3 wp6165.16 Code of Civil Procedure is filed, a duty is cast on the Court to decide that application first before proceeding further with the matter. It is argued that there is no error of jurisdiction while passing the impugned order and therefore, it would not be permissible for this Court to interfere with the impugned order in the extra ordinary jurisdiction.
5. After considering the submissions made by the learned Advocates for the respective parties, I am of the view that the learned trial Judge has committed an error in rejecting the application (Exhibit No.27) and refusing to consider the application (Exhibit No.22) before considering the application (Exhibit No.18). The provisions of Order VII Rule 13 of the Code of Civil Procedure lay down that if the plaint is rejected under Order VII Rule 11 of the Code of Civil Procedure, then the plaintiff is not precluded from presenting a fresh plaint in respect of the same cause of action. Thus if the application (Exhibit No.18) is decided first and the trial Court finds favour with the defendant, then the plaint shall be rejected and it would be permissible for the plaintiff to file fresh plaint including the proposed amendment in the pleadings. Thus, in my view, it will not serve any purpose by not considering the application (Exhibit No.22) before considering the application (Exhibit ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:12 ::: 4 wp6165.16 No.18). Of course the application (Exhibit No.22) will have to be considered on its own merits according to law.
6. The judgment in the case of P.K. Roja vs. U.S. Rayudu and another relied upon by the learned Advocate for the respondent/defendant is on totally different point. In this judgment, it is laid down that once an application under Order VII Rule 11 of the Code of Civil Procedure is filed, the Court cannot proceed with the trial without disposing of that application. Consideration of the application under Order VI Rule 17 of the Code of Civil Procedure does not mean that the Court is proceeding with the trial of the civil suit. The above judgment does not assist the respondent in the facts of the present case. The other submission made on behalf of the respondent is required to be recorded and rejected. The learned trial Judge has not only committed patent illegality but has failed to exercise the jurisdiction vested in him by refusing to consider the application (Exhibit No.22) before considering the application (Exhibit No.18). The impugned order is unsustainable and is required to be set aside.
7. Hence, the following order :
(i) The impugned order is set aside.
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(ii) The application (Exhibit No.27) filed by the petitioner is allowed.
(iii) The learned trial Judge shall consider the application (Exhibit No.22) filed by the petitioner/plaintiff under Order VI Rule 17 of the Code of Civil Procedure before the application (Exhibit No.18) filed by the respondent/defendant under Order VII Rule 11(a) of the Code of Civil Procedure.
Needless to say that the application (Exhibit No.22) shall be decided on its merits according to law.
Rule made absolute in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE adgokar ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:12 :::