Kedar Ramakant Kakodkar vs Auduth Timblo

F.M. Reis, J.—Heard Shri Rajendra Pai, the learned Counsel appearing for the petitioner and Shri S.D. Lotlikar, the learned Senior Counsel appearing for the respondent. The above petition challenges an order passed by the learned Civil Judge Senior Division at Panaji in Special Civil Suit No.90/2007/B dated 16/02/2012 disposing of Exhibit 47 and Exhibit 41. The respondent filed an application at Exhibit 47 praying inter alia that the application under Order 6 Rule 17 of the CPC filed by him should be decided first before proceeding to consider the application under Order 7 Rule 11 filed by the petitioner.

On the other hand, an application at Exhibit 41 was filed by the petitioner praying inter alia that the application under Order 7 Rule 11 of the CPC filed by the petitioner be decided first.

Shri Pai, the learned Counsel appearing for the petitioner has assailed the impugned order essentially on the ground that this Court whilst disposing of Civil Revision Application No.17/2009 had remanded the matter back to the learned trial Judge to decide the application under Order 7 Rule 11 of the CPC by making a specific observation that such application is to be decided on the basis of the pleadings in the plaint and to reconsider the application for rejection of plaint in view of the observations made therein. The learned Counsel further pointed out that despite of the said order passed by this Court the question of permitting the respondent to file an application under Order 6 Rule 17 of the CPC for amendment of the plaint and calling upon the Court to decide such application before disposing of the application under Order 7 Rule 11 of the CPC is totally improper and not appropriate. The learned Counsel further points out that on the basis of the pleadings as they stand some rights have accrued to the petitioner which may be taken away in case the application for amendment filed by the respondent is considered first. The learned Counsel thereafter has taken me through the order passed by the Apex Court disposing of the SLP filed by the respondent and pointed out that the Apex Court has also directed the learned Judge to decide the application under Order 7 Rule 11 of the CPC afresh without being influenced with any observations made by this Court whilst disposing of the said Civil Revision Application. The learned Counsel further pointed out that the amendment sought to be incorporated by the respondent is inconsistent with the pleadings and in fact they are self destructive and according to him such attitude on the part of the respondent is totally malafide and cannot be accepted. The learned Counsel, as such, submits that the learned Judge has erroneously exercised jurisdiction in dismissing the application filed by the petitioner to decide the application under Order 7 Rule 11 CPC before disposing of the application under Order 6 Rule 17 of the Civil Procedure Code.

On the other hand, Shri S.D. Lotlikar, the learned Senior Counsel appearing for the respondent has pointed out that the question of going into the merits of the amendment application would not arise. The learned Senior Counsel further pointed out that the learned Judge whilst passing the impugned order has categorically held that the question as to whether the amendment is to be allowed or is necessary for deciding the matter in controversy will have to be decided whilst deciding the application under Order 6 Rule 17 of the Civil Procedure Code. The learned Senior Counsel further pointed out that in case the application under Order 7 Rule 11 is taken up for consideration before deciding the application under Order 6 Rule 17 of the CPC great injustice shall occasion to the respondent as according to him the application under Order 6 Rule 17 would become infructuous, if such exercise is carried out. The learned Senior Counsel, as such, submits that no jurisdictional error is committed by the learned Judge whilst passing the impugned order which calls for interference by this Court.

I have carefully considered the submissions of the respective parties. I have also perused the impugned order passed by the learned Civil Judge Senior Division. With the assistance of the learned Counsel, I have also gone through the order passed by this Court whilst deciding the Civil Revision Application together with the order passed by the Hon''ble Supreme Court. On perusal of the order passed by the Apex Court, I find that it is clearly directed therein that the learned trial Judge shall proceed to hear the application afresh on merits uninfluenced with the observations made by this Court. As such, the question of relying upon any observations in the order passed by this Court whilst disposing of Civil Revision Application to contend that the application under Order 7 Rule 11 of the CPC be considered first before deciding the application under Order 6 Rule 17 of the Civil Procedure Code, does not arise. The application under Order 7 Rule 11 of the CPC is to be considered afresh by the learned Judge on its own merits in accordance with law.

The contention of Shri Pai, the learned Counsel appearing for the petitioner to the effect that there are inconsistent pleas and other contentions on the merits of the application for amendment is a matter which will have to be adjudicated by the learned Judge whilst deciding such application. The application shall be decided on its own merits and after hearing the parties in accordance with law. All contentions of the parties on merits of the application are left open.

The Apex Court in recent judgment reported in Daji Raoji Patil (D) th. L.Rs. and Others Vs. Bajirao Raoji Patil (D) th. L.Rs. and Others, . in fact has not accepted a procedure wherein the application under Order 6 Rule 17 was kept for consideration after deciding the first appeal. In such circumstances, the question of deciding an application under Order 7 Rule 11 of CPC before deciding the application under Order 6 rule 17 cannot be accepted. Hence, I find that the learned Judge has not committed any jurisdictional error whilst passing the impugned order. The learned Judge has rightly applied the well settled principles of law whilst passing the impugned order. Hence, no interference is called for in the impugned order under Article 227 of the Constitution of India. In view of the above, I find no merit in the above petition. Hence, the petition stands dismissed.