VIJAYA NANASAHEB JAYBHAY Vs. USHA NANASAHEB JAYBHAY

JUDGEMENT

(1.) The petitioners are original defendant Nos. 1 and 2. Respondent No.1 - original plaintiff has instituted the suit bearing Special Civil Suit No.161 of 2018 for partition and separate possession before the Civil Judge, Senior Division, Ahmednagar. During pendency of this petition, the trial Court, by order dated 03.02.2015, has dismissed the suit as against defendant No.3 for want of steps. Respondent No.1 - plaintiff had, therefore, filed an application Exhibit-85 for setting aside the said dismissal order dated 03.02.2015. By impugned order dated 30.04.2019, the 13th Joint Civil Judge, Senior Division, Ahmednagar, allowed the application and set aside the dismissal order dated 03.02.2015 below Exhibit-1 against defendant No.3. Hence this writ petition.

(2.) Learned counsel for the petitioners - original defendants submits that the provisions of Order IX, Rule 5, sub-rules (1) and (2) of the Code of Civil Procedure, prohibit the Court from exercising inherent jurisdiction. In terms of the provisions of Order IX, Rule 5 sub-rule (2) of CPC, the plaintiff can file a fresh suit subject to the law of limitation.

(3.) Learned counsel for the petitioners, in order to substantiate his contention, placed reliance on the case of Vishwanath Satwaji Gaikwad v. Laxman S/o Abaji Kavale and others , 2000 4 MhLJ 498. : (AIR 2000 BOMBAY 307).