MAHESH KUMAR AGRAWAL Vs. DINESH KUMAR CHOUKSEY

JUDGEMENT

(1.) THIS first appeal under Section 96 of the Code of Civil Procedure, 1908 (for short 'CPC') is directed against the order dated 25.9.2009 passed in Civil Suit No. 5A/2009 whereby the learned 8th Additional District Judge, Bilaspur allowing two separate applications, one preferred by Respondent No. 2 and another preferred by Respondents No. 3 to 5, under Order 7 Rule 11 of Code of Civil Procedure has dismissed the suit of the Appellants.

(2.) THE parties to this appeal shall be referred hereinafter as per their status before the trial court.

(3.) MR. Ali Asgar, learned Counsel appearing for the Plaintiffs submits that the impugned order has been passed without deciding the application for amendment in the plaint (IA No. 9) which was filed on 22.12.2008. By the aforesaid application the Plaintiffs have impugned the collusive decree obtained by the Defendant No. 2 against Defendants No. 3 to 5 on 8.5.2008 and the Plaintiffs have also prayed for decree of declaration and possession. Since the suit was filed on 17.3.2008 and the collusive decree was obtained later on, the Plaintiffs' application for amendment (IA No. 9) was based on the subsequent events. The Plaintiffs' earlier applications for amendment of similar nature were dismissed as withdrawn vide order dated 17.11.2008 with liberty to file detailed application for amendment. The Defendants have already filed reply to IA. No. 9, however, the matter was adjourned for five times, between 18.3.2009 to 16.6.2009, as the Court was without Presiding Officer. Suit was transferred to the Court of learned 8th Additional District Judge, Bilaspur on 27.6.2009. The Plaintiffs by way of application dated 10.7.2009 filed under Section 151 of the Code of Civil Procedure brought to the notice of the trial Court that the Plaintiffs have already moved an application under Section 24 of the Code of Civil Procedure for transfer of the case pending adjudication and till that application is decided, proceedings in the case be stayed. The trial Court vide order dated 17.7.2009 observed that if the Plaintiffs file any document or affidavit in support of this application, then only the prayer may be considered. The Plaintiffs filed copy of the application filed under Section 24 of the Code of Civil Procedure along with an affidavit, however, the prayer was rejected vide order dated 4.8.2009 with an observation that from the copy of application it is not clear whether the same has been filed in the Court of learned District Judge or not. It has been further observed that since the matter is not being finally decided and only at the interim stage, staying the proceedings would not be appropriate. The Plaintiffs' subsequent application for adjournment on the ground of pendency of the transfer petition was also rejected. The Defendants, after almost 1 1/2 years of filing of the suit, filed the applications under Order 7 Rule 11 of Code of Civil Procedure for dismissal of the suit on 26.8.2009 and 4.9.2009 respectively and the same were allowed by the trial Court vide impugned order dated 25.9.2009. The Plaintiffs had mentioned in their reply to the applications under Order 7 Rule 11 Code of Civil Procedure that their application under Order 6 Rule 17 for amendment of suit is pending. Pendency of the amendment application finds reference in the impugned order. The impugned order was passed during the pendency of transfer application under Section 24 of the Code of Civil Procedure before the learned District Judge. Relying upon the judgment of Division Bench of the Bombay High Court in the matter of Gaganmal Ramchand v. The Hongkong and Shanghai Banking Corporation AIR (37) 1950 Bom 345, it was argued that the suit may be dismissed under Order 7 Rule 11 of Code of Civil Procedure which does not disclose cause of action or if the relief claimed by the Plaintiff for perpetual injunction cannot be decreed in absence of the Plaintiffs seeking relief of possession of the suit property. However, it cannot be said that the Court cannot allow an amendment of pleadings in the plaint which may save the plaint from being rejected by exercising its power under Order 6 Rule 17, and allowing the plaint to be amended. Learned trial Court has dismissed the suit under Order 2 Rule 2 Code of Civil Procedure though the Defendants have not raised any ground available under Order 2 Rule 2 of Code of Civil Procedure in their applications under Order 7 Rule 11 Code of Civil Procedure for dismissal of the suit.