Bombay High Court
Manjulabai Tulshiram Shende And ... vs Bapurao Bhaduji Chaudhary And ... on 11 September, 2006
Equivalent citations: 2006 (6) BomCR 625
Author: J A.H.
Bench: J A.H.
JUDGMENT
Joshi A.H., J.
1. Rule made returnable forthwith. Heard finally.
Learned Advocate Mr. Siras waives service for respondent Nos. 1 and 2.
Service to respondent No. 3, who is a sister of the plaintiffs, is dispensed with.
2. Plaintiffs had filed a suit for partition and 1/7th share. According to petitioners, after defendants appeared, they have disclosed that the suit property was alienated by defendant Nos. 1 and 2 to a third person, for a valuable consideration of Rs. 13,00,000/-. Therefore, according to plaintiffs, it became necessary to amend the plaint.
3. It was obvious that upon amendment, the suit would not continue to be within the pecuniary jurisdiction of the Civil Judge [Junior Division], and would become liable to be transferred to Civil Judge [Senior Division], as the amendment would be of such nature that it would result in taking away jurisdiction of the Court before whom the suit was pending.
4. In order to mitigate this situation, the plaintiffs filed an application mentioning therein that it had become necessary to amend the plaint by arraying the purchaser as defendant and by amending the prayers, however, due to this amendment which had become necessary, the problems relating to pecuniary jurisdiction and valuation of suit were going to arise. The petitioners, therefore, prayed for liberty to withdraw the suit with liberty to file suit before competent Court.
5. The application came to be rejected. While rejecting the application, the learned trial Judge observed as follows:
...It is nowhere stated by the applicant that he wants to file fresh suit on the same cause of action....
[quoted from page 18-A of the Revision Application Paper-book].
6. Learned Advocate for the petitioners has placed reliance on a reported Judgment of this Court in case of Devidas v. Commissioner, Poona Municipal Corporation 1973 Mh. L.J. 889. Law on the point being unambiguous, it is not necessary to discuss this judgment.
7. On perusal of impugned order, this Court finds that the observation of the learned Civil Judge quoted in para No. 6 above is misconceived, since it has been explicitly mentioned that withdrawal of suit had become necessary as amendment of the plaint would result in the consequences which were spelt out therein. Upon disclosure of this reason, it was a sheer formality to aver in particular words that plaintiffs were planning to file a fresh suit on the same cause of action. In fact, the cause of action, that existed was altered due to new facts which had surfaced after disclosure by the defendants. Learned trial Court could have grasped the same spirit instead of searching for specific language.
8. Though at the hearing the Civil Revision Application has been vehemently opposed, this Court is satisfied that on what was spelt out in the application, it was necessary to allow withdrawal of suit, and to grant liberty to withdraw suit with liberty to file a fresh suit on the same cause of action, with such modifications as had become necessary in view of the circumstances brought to the notice of the plaintiffs by the defendants.
9. This Court, therefore, modifies Order passed by the Trial Court below Exh. 14, which is at Page 18-A of the Revision Paper-book, and, now, this Court allows Exh. 14 in terms of the prayers contained therein, i.e. the suit is allowed to be withdrawn with liberty to file a fresh suit on the same cause of action, and additional cause with such added averments and prayers as have become necessary and consequential.
10. In the circumstances, however, this Court does not direct that parties shall bear respective costs.
11. Rule is made absolute in above terms.
