Bombay High Court
Harikant @ Pintu Nattuji Budhe vs Uttam S/O Ramavtar Yadav on 13 October, 2025
21. CRA 105 of 2025.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CIVIL REVISION APPLICATION NO.105/2025
Harikant Alias Pintu Natthuji Budhe
...Versus...
Uttam S/o Ramavtar Yadav
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mr. V.V. Bhangde, Advocate for applicant
Mr. Haris Khan with Mr. Ishan Khisti, Advocates for respondent
CORAM : ROHIT W. JOSHI, J.
DATE : 13/10/2025
1. The present revision application is filed by the
original defendant, being aggrieved by the order dated
08/09/2025 passed by the learned trial Court, rejecting the
application for rejection of plaint. The suit is for specific
performance of contract. The agreement in question is dated
05/06/2024.
2. Perusal of the plaint indicates that the defendant
had cancelled the contract by refunding and had retained the
consideration received by him under the agreement. In such
circumstances, the suit is filed seeking relief of specific
performance of contract. However, the plaintiff has not made
a prayer seeking a declaration that the cancellation of the
agreement by the defendant is illegal.
3. Mr. Bhangde, learned Advocate for the applicant,
has placed reliance on the judgments of the Hon'ble Supreme
21. CRA 105 of 2025.odt
Court in the matter of I.S. Sikandar (Dead) by L.Rs. Vs. K.
Subramani and others, reported in (2013) 15 SCC 27 as also
the judgment in the matter of C. Padmawati Naidu and others
Vs. Friends Co-operative Hsg. Society Ltd., Nagpur and others,
reported in 2016 (4), Mh. L. J. 289 as also unreported
decision dated 25/04/2025 passed by this Court at its Nagpur
Bench in Second Appeal St. No.3835/2024 (Shri Ramesh S/o
Sukhramdas Waswani Vs. Shri Mukesh S/o Gangaram Zha
and another).
4. The legal position appears to be clear that the suit
is not maintainable and the plaint is liable to be rejected for
not challenging the cancellation of the agreement.
5. However, the learned Advocate for the
respondent/plaintiff states that an application for amendment
of plaint, in order to incorporate a prayer challenging
termination, is filed before the learned Trial Court on
06/10/2025. He, therefore, prays that hearing of the revision
may be deferred, with directions to the learned trial Court to
decide the amendment application within fixed time frame.
6. Mr. Bhangde, learned Advocate for the applicant,
strongly opposes the request.
7. Mr. Bhangde, learned Advocate for the applicant
has placed reliance on the judgment of this Court in the
matter of Prakash G. Goyal and others Vs. Sayyed Ayaz Ali s/o
Makdoom Ali and others, reported in 2018 (5) Mh.L.J. 830,
which is expressly confirmed by the Hon'ble Supreme Court
by the judgment in the case of Sayyed Ayaz Ali Vs. Prakash G.
Goyal and others, reported in (2021) 7 SCC 456. In the said
21. CRA 105 of 2025.odt
case, an application for rejection of plaint was allowed on the
ground that appropriate prayer for declaration was not made
by the plaintiff. However, while allowing the application for
rejection of plaint, the learned trial Court permitted the
plaintiff to incorporate the prayer for declaration and to pay
appropriate court fee with respect to the said prayer. Dealing
with such situation, this Court has held in paragraph Nos.15
and 16 of the judgment that the learned trial Court has
committed error in granting time to the plaintiff to seek
proper relief and to pay court fee within a period of 15 days
from the date of order rejecting the plaint. Referring to the
provisions of Order VII Rule 11, this Court held that power to
grant extension of time to cure the defect was available with a
Civil Court only in situations covered under Clauses - (b), (c),
(e) and (f) of Order VII Rule 11 and that when a plaint is
rejected under Order VII Rule 11 (a) or (d), the Court will not
have such power to grant extension of time to cure the
defects. In such circumstances, the order passed by the
learned trial Court granting time to incorporate prayer for
declaration and to pay appropriate court fee with respect to
the said prayer was quashed.
8. Mr. Bhangde, learned Advocate for the applicant
therefore contends that the plaint will have to be considered
as it stood on the date on which the application under
Order VII Rule 11 was decided by the learned trial Court and
merely because the application is wrongly rejected, the
plaintiff, cannot amend the plaint in order to cure the
apparent defect in the plaint.
21. CRA 105 of 2025.odt
9. Mr. Bhangde has also placed reliance on the
judgment of the Hon'ble Supreme Court in the matter of
Patasibai and others Vs. Ratanlal, reported in (1990) 2 SCC
42 in support of his contention.
10. Per contra, Mr. Haris Khan, learned Advocate for
the respondent/plaintiff places reliance on the judgments of
this Court in the matter of Pramod Vs. Shantaram Balkrushna
Dhok, reported in 2017 (3) Mh.L.J. 213; Bharat Travellers Vs.
Sumitrabai Vinayakrao Buty, reported in 2017 (6) Mh.L.J.
703 and Lok Housing and Constructions Ltd. and another Vs.
Everest and Industries Ltd., reported in 2005 (2) Mh.L.J. 700.
The learned Advocate contends that in all these cases
application for amendment of plaint was ordered to be
decided before the application for rejection of plaint. He,
therefore, contends that application for amendment of plaint
filed by the respondent/plaintiff should be allowed to be
decided by the learned trial Court on merits.
11. Mr. Bhangde, learned Advocate distinguishes the
judgments contending that in all these cases the application
for rejection of plaint was pending.
12. As regards the judgment cited by Mr. Bhangde,
Mr. Khan, learned Advocate for the respondent/plaintiff points
out a distinguishing feature that in the case of Prakash Goyal
(supra) the application for rejection of plaint was allowed and
therefore, he contends that once the plaint was order to be
rejected the defect could not be ordered to be cured. With
respect to the judgment in the case of Patasibai (supra) the
learned Advocate draws attention to paragraph No.9 and
21. CRA 105 of 2025.odt
contends that in the said matter the amendments which were
sought to be incorporated in the plaint were with respect to
grounds which were already rejected by the competent Court
in earlier round of litigation and therefore, even if the
application for amendment was allowed, the same would not
have material bearing on the controversy involved in the
matter.
13. Having referred to the aforesaid judgments, in
the considered opinion of this Court, none of the cases are
identical with the peculiar facts of the present case wherein
the suit does not appear prima facie to be maintainable for
want of prayer for cancellation of agreement and the learned
trial Court has rejected the application for rejection of plaint.
The suit is pending as on date.
14. In such circumstances, it will be appropriate to
refer to Order VII Rule 13 of the Code of Civil Procedure,
which provides that even if a plaint is rejected under Order
VII Rule 11, fresh suit on the same cause of action can be
filed. It is not in dispute that the agreement is dated
05/06/2024 and as such, even if the plaint is rejected, the
plaintiff will have a right to file fresh suit by challenging the
notice of termination and seeking relief of specific
performance. In the considered opinion of this Court, the
same will only lead to multiplicity of litigation and will cause
undue hardship to the plaintiff, who has incorporated prayer
clauses in the plaint obviously being guided by legal advice
that he has received.
21. CRA 105 of 2025.odt
15. In view of the aforesaid, in the considered
opinion of this Court, ends of justice will be subserved if the
trial Court is directed to decide the application for
amendment and the revision application is taken up for
consideration thereafter.
16. For taking this view, this Court is also guided by
Section 99 of the Code of Civil Procedure. Section 99 applies
to appeals. However, even revisional jurisdiction is a part of
appellate jurisdiction with certain restrictions. As held in
Snehadeep Structures Private Ltd. Vs. Maharashtra Small
Scale Industries Development Corpn. Ltd, reported in AIR
2010 SC 1497, appeal in a broader sense includes all remedies
where correctness of order passed by a Court can be tested by
a higher Court. The scope of interference may differ
depending upon the provision. In the considered opinion of
this Court, underlying philosophy of Section 99 of the Code of
Civil Procedure is that the Court should not be guided by
technicalities but should make endeavour to make substantial
justice. It is also well settled that laws and procedure are
handmaid of justice and should not be interpreted in a
manner which would hamper the advancement of proper
justice.
17. In view of aforesaid, following interim order is
passed:-
(I) The learned Trial Court is directed to
decide the application for amendment of plaint filed by the
plaintiff/respondent as expeditiously as possible and, in any
case, within a period of one month from the next date in the
matter.
21. CRA 105 of 2025.odt
(II) The learned Trial Court shall not proceed
with hearing of the suit except for deciding the application for
amendment.
(III) List the revision for further consideration
after amendment application is decided.
(ROHIT W. JOSHI, J.)
Tanmay/Wadkar
Signed by: S.S. Wadkar (SSW)
Designation: PS To Honourable Judge
Date: 15/10/2025 17:21:42
