VIMAL BUILDERS Vs. KETAN KANTILAL THAKKAR

JUDGEMENT

(1.) Since it is agreed between the learned Counsel appearing for the parties, both these matters are disposed of finally at the admission stage itself. In view thereof, the Appeal is admitted. Rule is issued in Writ Petition No. 641 of 2009. Learned Counsel for respondent No. 220 in First Appeal and for respondent No. 3 in writ petition waives service.

(2.) Since the issue involved in the First Appeal and in the writ petition being common, with the consent of the learned Counsel appearing for the parties, both these matters are taken up for hearing together and are being disposed of by this common judgment.

(3.) Facts in First Appeal may be noticed. The First Appeal is directed against the judgment and order dated 3rd October, 2008, passed by the 2nd Joint Civil Judge, Senior Division, Kalyan, by which the learned trial Judge has held that the suit of the plaintiff i.e. Special Civil Suit No. 292 of 2008 is not maintainable as per Order II Rule 2(3) of the Civil Procedure Code, 1980 (hereinafter "the Code") and accordingly the plaint is rejected under Order 7 Rule 11 of the Code which order is impugned at the instance of the original plaintiff. The aforesaid suit was filed by the appellant for specific performance of an agreement dated 16th September, 2006, declaration and injunction etc.