IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 264 OF 2014
1. Chandrakant Pandurang Shingade
Aged – 52 years,
Occ – Agriculturist and Business
2. Sau. Manjusha Chandrakant Shingade,
Aged – 47 years, Occ – Agriculturist
Both R/o- Nilambari Apartment,
Ashoknagar, Baramati, Dist. Pune. … Applicants/ Original Defendants
Shri. Walchand Gulabchand Bora
Aged – 65 years, Occ- Agriculturist and Business
R/o Siddhivinayak Medical Stores,
Opposite – bureau of a Panchayat
Samittee, Near Purandare Petrol Pump,
Ashoknagar, At Post Tal-Baramati,
Dist. Pune. … Respondent/
Original Plaintiff Shri. S.M. Oak i/b. Sagar Anant Joshi, Advocate for a Petitioners.
Shri. Shriram S. Kulkarni, Advocate for Respondent.
CORAM : SANDEEP K. SHINDE J.
DATE : Aug 6th, 2019 Prachi Potdar Sr. No. 25 CRA 264 of 2014.odt ORAL JUDGMENT :
1. It is an focus underneath Section 115 of a Civil Procedure Code, 1908 (for short, “CPC”), holding difference to a sequence antiquated 09.10.2007, upheld by a Learned Civil Judge, Senior Division, Baramati, in Special Summary Suit No. 30 of 2007.
2. The applicant-defendant filed an focus underneath Order 7, Rule 11(d) r/w., Order 23, Rule 3 and 4(b) of a Civil Procedure Code, 1908 and urged for rejecting of plaint. Order 7, Rule 11 (a) to
(d) reads as underneath :-
“11. Rejection of Plaint – The wail shall be deserted in a following cases:-
(a) where it does not divulge a means of action;
(b) where a service claimed is under-valued, and a plaintiff, on being compulsory by a Court to so scold a gratefulness within a time to be bound by a Court, fails to do so;
(c) where a service claimed is scrupulously valued, yet a wail is created on paper scantily stamped, and a plaintiff, on being compulsory by a Court to supply a claim stamp-paper within a time to be bound by a Court, fails to do so;
(d) where a fit appears from a matter in a wail to be barred by any law”.
Prachi Potdar Sr. No. 25 CRA 264 of 2014.odt
3. It is applicant’s box that a Respondent-Plaintiff had instituted Summary Suit No. 30 of 2007 (hereinafter called ‘previous suit’) in a Court of Civil Judge, Senior Division, Baramati, yet he withdrew it in pursuant to sequence antiquated 09.10.2007. It reads as underneath :-
“Heard a schooled warn for a plaintiff. Perused a application. The plaintiff wants to repel a fit converting a inlet in Special Civil Suit. we find piece in his submission. The accede is accorded to repel a suit. The papers and stamp be returned to a plaintiff as prayed for.”
4. It is applicant’s box that shortly afterward Respondent instituted Special Civil Suit No. 128 of 2007 on 20.02.2008 on same means of action, as was in a prior suit. The applicant would contend that a prior fit was cold by a Plaintiff completely yet autocracy to hospital a uninformed fit in terms of Rule 3 r/w. Rule 4 and Order 23 of a CPC. The applicant would therefore contend that in deficiency of voiced autocracy to hospital a uninformed suit, successive fit (present theme suit) was not maintainable, and so sought for rejecting of wail underneath Order 7, Rule 11(d) of CPC. Prachi Potdar Sr. No. 25 CRA 264 of 2014.odt Learned Judge deserted a pronounced focus holding that prior fit was available to be withdrawn, with autocracy to hospital a uninformed suit. Aggrieved by a sequence antiquated 23.01.2014, this focus is preferred.
5. Learned warn for a applicant submits that sequence antiquated 09.10.2007 upheld underneath Order XXIII CPC does not specifically assent or extend autocracy to a Respondent/ Plaintiff, to hospital a uninformed suit. He serve submits that while needing to repel a prior suit, Learned Judge has not available a compensation about a grave forsake in a fit and reasons for its’ expected failure.
6. Perused focus done for withdrawal of prior fit and sequence antiquated 09.10.2007. Respondent-Plaintiff, sought leave to repel a prior fit with autocracy to record suit, carrying found and satisfied that instead of Special Summary Suit, he ought to have filed Special Civil Suit. It is some-more than transparent from a sequence antiquated 09.10.2007, that a Learned Trial Court has available a compensation as compulsory underneath Rule 3 Clause (a) of Order XXIII of a CPC and carrying found piece in a application, postulated accede to Prachi Potdar Sr. No. 25 CRA 264 of 2014.odt repel a suit. Thus, there was finish correspondence of Rule 3 of a Order XXIII CPC
7. Contention of a Applicant that yet Plaintiff was available to repel a fit yet in deficiency of demonstrate autocracy to hospital uninformed suit, second fit was not maintainable, can't be accepted. In as most as request for withdrawal and autocracy to record uninformed fit can't be separate adult in dual tools viz. withdrawal and autocracy to record uninformed suit. It has to be authorised as whole or deserted as whole. It is good staid that if an focus is done for withdrawal of a fit with autocracy to record suit, it is not open for a Court to extend usually accede for withdrawal, yet autocracy to hospital a proceedings, yet it is open for a Court to reject such application, as hold in a box of Mario Shaw Vs. Martin Fernandez and Anr. reported in AIR 1996 Bombay 116.
8. Application is abandoned of merit. It is discharged with no sequence as to costs.
(SANDEEP K. SHINDE, J.)