Bombay High Court
Smt. Shakuntalabai Wd/O. Mahadeo ... vs Smt. Sundarabai W/O Shankarrao ... on 15 December, 2017
Bench: A. D. Upadhye
1 J-CRA-1-17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION (CRA) NO.1/2017
1. Smt.Shakuntalabai wd/o Mahadeo Dekate,
Aged about : 67 years,
Occ. Household.
2. Shri Ashok s/o Mahadeo Dekate,
Aged about : 48 years,
Occ. Business.
3. Shri Krishna s/o Mahadeo Dekate,
Aged about : 46 years,
Occ. Business.
Sr. No.1 to 3 R/o Juni
Mangaiwari, Circle No.11/16,
Near Bhonda Dewal, Lal School,
Ward No.27(old 37), Nagpur.
4. Smt. Kumi @ Girija w/o Narendra
Dhawale, Aged about : 44 years,
Occ. Household, R/o Pilli Marbat
Chowk, Jgncth Budhwari, Nagpur.
5. Smt. Meena w/o Ramesh Ninave,
Aged about ; 42 years,
Occ. Household, R/o Near Jagannath
Swami Mandir and the house of
Praveen Dharmik, Ghas Bazar,
Loha Market, Itwari, Nagpur.
6. Smt.Laxmibai wd/o Damu Umredkar
Aged about : 70 years,
Occ. Household, R/o Behind the
house of Jagan Dhawde,
Gangabai Ghat Road,
Juna Bagadganj, Nagpur. ..... APPLICANTS
(ORI. DEFENDANTS)
...V E R S U S...
Smt. Sundarabai w/o Shankarrao Parate,
Aged about : 68 years, Occ. Housewife,
R/o Thakkargram, Near the house of
Damu Garudi, Swami Nagar,
Panchpaoli, Nagpur. ... NON-APPLICANT
(ORI. PLAINTIFF)
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2 J-CRA-1-17.odt
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Shri Y. V. Nayyar, Advocate for the applicants.
Shri N. V. Fulzele, Advocate for the non-applicant.
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CORAM:-
ARUN D. UPADHYE, J.
DATED :
15/12/2017.
JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard finally by
consent of learned counsel for the parties.
2. By this application, the applicants have prayed to quash
and set aside the order dated 04/08/2016 passed by the 12 th Joint Civil
Judge, Senior Division and Additional Chief Judicial Magistrate, Nagpur
below Exh.19 in Special Civil Suit No.732/2015. The brief facts of the
case are as under :-
3. The non-applicant has filed suit for partition and
separate possession claiming 1/3rd share in the suit property against the
applicants. During the pendency of the suit, the applicants have filed
application under Order 7 Rule 11 (d) and Section 11 of the Code of
Civil Procedure. The applicants have contended that the present suit
filed by the non-applicant is not maintainable, as per the provisions of
Order 7 Rule 11 (d) and Section 11 of the Code of Civil Procedure. It is
further contended that the plaintiff has already filed Special Civil Suit
3 J-CRA-1-17.odt
No.1323/1995 against Mahadeo Mangal Dhakate and Smt.Laxmibai
wd/o Damu Umredkar. According to them, Mahadeo expired in the year
1997 and pursis to that effect is filed in the Court. The non-applicant
has not brought on record the legal heirs of Mahadeo Dhakate. The
present suit is instituted on the very same grounds / pleadings and
therefore, the application be allowed and the suit be dismissed as
barred under Section 11 of the Code of Civil Procedure.
4. The application filed by the applicants was opposed by
the non-applicant. The non-applicant has contended that earlier suit
was dismissed for want of steps and the said suit was not decided on
merit by the Competent Court and therefore, subsequent suit is not
barred by virtue of Section 11 of the C.P.C. The application, therefore,
be dismissed.
5. After hearing both the sides, the learned trial Court has
rejected the application vide Exh.19 by its order dated 04/08/2016. The
said order is assailed by the applicants / original defendants by way of
civil revision application.
6. I have heard Shri Nayyar, learned counsel for the
applicants and Shri Fulzele, learned counsel for the non-applicant at
length.
4 J-CRA-1-17.odt
7. Shri Nayyar, the learned counsel for the applicants has
vehemently submitted that the earlier suit was dismissed for want of
prosecution, as no steps are taken by the non-applicant. The present suit
filed for the same cause of action is, therefore, not maintainable. The
learned trial Court has not considered this aspect and wrongly rejected
the application Exh.19. The civil revision application, therefore, be
allowed.
8. Shri Fulzele, learned counsel for the non-applicant has
submitted that though the application is titled as application, filed
under Order 7 Rule 11 (d) and Section 11 of the Code of Civil
Procedure, prayer is made to dismiss the suit, as barred by Section 11 of
the C.P.C. He further submitted that the earlier suit was not decided on
merit and therefore, the provisions of Section 11 of the C.P.C. is not
made applicable. The learned trial Court has rightly rejected the
application Exh.19. Therefore, this civil revision application be
dismissed.
9. Considering the submission of both the sides and
having gone through the impugned order dated 04/08/2016 passed by
the 12th Joint Civil Judge, Senior Division and Additional Chief Judicial
Magistrate, Nagpur below Exh.19 in Special Civil Suit No.732/2015, I
am of the view that no interference of this Court is called for.
5 J-CRA-1-17.odt
10. On perusal of the application Exh.19, it appears that
though the application is styled as application filed under Order 7 Rule
11 (d) and Section 11 of the Code of Civil Procedure, the contents of
application as well as prayer seems to be made under Section 11 of the
C.P.C.
11. It is to be noted that admittedly, the earlier Special Civil
Suit No.1323/1995 was dismissed for want of prosecution and
therefore, the question of deciding the same on merit, does not arise.
Therefore, the provisions of Section 11 of the C.P.C. are not attracted in
this case. So far as the provisions of Order 7 Rule 11 (d) of the C.P.C.
are concerned, there is no averment in the application. The learned trial
Court has rightly observed that the application does not come within
the four corners of the provisions of Order 7 Rule 11 (d) of the Code of
Civil Procedure.
12. Considering the submission of both the sides, I am of
the view that there is no merit in the civil revision application and same
is liable to be dismissed and accordingly dismissed. Rule stands
discharged. No order as to costs.
JUDGE
Choulwar
