Bombay High Court
Kazi Maherunnisa Wd/O Kazi ... vs Shri Malu Yadav, Prop. Of Malu ... on 24 October, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.1749 OF 2015
1] Kazi Maherunnisa wd/o Kazi Kadiruddin,
Aged about 58 years,
Occupation - Nil.
2] Kazi Vakiyoddin s/o Kazi Kadiruddin,
Aged about 37 yers,
Occupation - Business.
3] Kazi Gayasoddin s/o Kazi Kadiruddin,
Aged about 28 years,
Occupation - Business.
4] Kazi Aminoddin s/o Kazi Kadiruddin,
Aged about 26 years,
Occupation - Business.
All R/o. Near Sancheti Chamber,
Mul Road, Chandrapur, Tahsil and
District - Chandrapur. .. Petitioners
(Original plaintiffs)
.. Versus..
1] Shri Malu Yadav,
Prop. of Malu Engineering and Dismissed
Construction Company, against
Aged about.. Major, Respondent
Occupation - Contractor, No.1.
R/o. 7/C, Venkatesh City,
Shirur, Butibori, Wardha Road,
Nagpur.
2] Grace Industries Limited,
Through its General Manager,
R/o. A-23, MIDC, Tadali,
Tahsil and District - Chandrapur,
having its Main Office at Gupta
Bhawan Seth, Mahadeo Prasad,
Gupta Marg, Sitabardi, Nagpur-12. .. Respondents
(Original defendants)
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Shri Nitin Bhishikar, Advocate for the petitioners,
Respondent No.2 served.
..........
CORAM : A.S. CHANDURKAR, J.
DATED : OCTOBER 24, 2016.
ORAL JUDGMENT
1] In view of notice for final disposal issued earlier, the learned
counsel for the petitioners has been heard at length by issuing Rule
making the same returnable forthwith.
2] The petitioners are the original plaintiffs who have filed the
suit for recovery of certain amounts against the defendants. In paragraph
six of the plaint, it has been pleaded that the concrete mixture machine
that was handed over to the defendants, as per the agreement, had not
been returned back. It was pleaded that the defendant no.2 was having
custody of the said machine and the said defendant was performing the
work of the defendant no.1. It was further pleaded that the liability of
both the defendants was joint and several. The defendant no.2 moved an
application below Exh.58 seeking dismissal of the suit on the ground that
no cause of action had been disclosed against the said defendant no.2.
This application was allowed by the trial court by the order dated
22.10.2013.
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3] Shri Bhishikar, learned counsel for the petitioners, submitted
that, in the plaint, there were sufficient averments that indicated that the
defendant no.2 was a necessary party to the suit. He submitted that the
pleadings indicated joint and several liability of both the defendants and
a decree was sought against both of them. According to him, the plaint
could not have been rejected in part and in support of said submission, he
placed reliance upon the judgment of the Division Bench of this Court in
the case of Merit Magnum Constructions .vs. Nand Kumar Anant Vaity
and others, reported in 2014 (7) ALL MR 252. The original defendant
no.2 though served has not chosen to contest the proceedings.
4] Perusal of the application below Exh.58 filed by the defendant
no.2 indicates that it was the case of said defendant that he was not
connected with the suit as filed against defendant no.1. The trial court,
despite noticing the averments in the plaint, proceeded to observe that
the agreement was only between the plaintiffs and the defendant no.1
and hence allowed the said application.
5] Considering the averments made in paragraph six of the plaint
along with the decree, as prayed for, it cannot be said that the defendant
no.2 was not concerned at all with the claim of the plaintiffs. The
observations of the trial court that it appeared that there was a contract
between the plaintiffs and defendant no.1 is based purely on surmises.
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As held by the Division Bench in Merit Magnum Constructions (supra),
rejection of the plaint in part is impermissible under the provisions of
Order 7, Rule 11 of the Code of Civil Procedure. Thus, considering the
clear averments in the plaint as well as the reliefs sought, I find that the
order passed by the trial court cannot be sustained as the same is
contrary to law.
6] In view of aforesaid, the order dated 22.10.2013 passed by the
trial court below Exh.58 is quashed and set aside. Consequently, the
order dated 19.4.2014 passed below Exh.61 would not survive. The suit
shall proceed against both the defendants.
7] Rule is made absolute in aforesaid terms. No costs.
JUDGE
Gulande, PA
