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Judgment
F. M. Reis, J
Heard Shri Shivan Desai, learned Counsel appearing for the petitioner and Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the respondent nos. 5 and 6. The respondent nos. 1, 2 and 7 have been duly served but they failed to remain present. The notice was given for final hearing at the stage of admission.
At the outset, Shri Desai, learned Counsel appearing for the petitioner upon instructions seeks leave to delete the names of the respondent nos. 3 and 4 from the above petition. Leave granted at the risk of the petitioner. The names of respondent nos. 3 and 4 are accordingly deleted.
Rule. Heard forthwith by consent of learned Counsels.
Shri V. Korgankar, learned Counsel appearing for the respondent nos. 5 and 6 waives service.
The above petition challenges an order passed by the learned Civil Judge Senior Division, Margao, whereby a request made by the petitioner on 17.02.2012 to consider the application for amendment before considering the application under Order 7 Rule 11 of C.P.C. filed by the respondent nos. 5 and 6 came to be rejected.
The petitioner has filed a suit for declaration in respect of a sale deed and for other reliefs as against the respondents herein. During the course of the said proceedings, the respondent nos. 5 and 6 along with the respondent no.1 filed an application under Order 7 Rule 11 of C.P.C. for rejection of the plaint.
During the course of the hearing of the said application, the petitioner filed an application for amendment of the plaint at Exhibit D-42 and the application for substitution of the name of the Managing Director at Exhibit D-41 on 17.02.2012. The petitioner thereafter requested the learned Judge to consider the application for amendment before concluding the hearing of the application under Order 7 Rule 11 of C.P.C. But however, the learned Judge on the said date refused the said request of the learned Counsel appearing for the petitioner. Being aggrieved by the said order, the petitioner filed the present petition.
Shri Desai, learned Counsel appearing for the petitioner has pointed out that the application for amendment came to be filed by the petitioner essentially in view of the fact that the respondent nos. 1, 5 and 6 had raised some contentions that the plaint of the petitioner was defective. The learned Counsel as such submits that the facts sought to be incorporated in the plaint by way of amendment are very much relevant for the purpose of considering the application under Order 7 Rule 11 of C.P.C. The learned Counsel as such submits that for the aforesaid reasons, the petitioner requested the learned Judge to consider the application for amendment before disposing of the application under Order 7 Rule 11 of C.P.C. The learned Counsel further pointed out that the application for amendment filed by the petitioner was clarificatory as according to him all the facts were already narrated in the presentation application. The learned Counsel as such submits that the learned Judge has failed to exercise the jurisdiction vested in him whilst passing the impugned order which calls for interference by this Court under Article 227 of Constitution of India.
On the other hand, Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the respondent nos. 5 and 6 has pointed out that the petitioner is only delaying the matter as according to him, he has a good case to reject the plaint filed by the petitioner but however in fairness does not object that the application for amendment may be considered by the learned Judge before disposing of the application under Order 7 Rule 11 of C.P.C. The learned Senior Counsel however submits that there is no error committed by the learned Judge which calls for interference by this Court under Article 227 of the Constitution of India.
Having heard the learned Counsels and taking note of the fact that the application for amendment was necessitated in view of the contentions raised by the respondents whilst filing an application under Order 7 Rule 11 of C.P.C, I find it appropriate that the learned Judge ought to have decided the application for amendment before deciding the application under Order 7 Rule 11 of C.P.C. The contention of Shri Desai, learned Counsel appearing for the petitioner to the effect that the averments sought to be incorporated in the plaint would be material for the purpose of deciding the application under Order 7 Rule 11 of C.P.C. has otherwise not been disputed by the learned Senior Counsel appearing for the respondent nos. 5 and 6.
Considering the said aspect, I find that the learned Judge has failed to exercise the jurisdiction vested in him by refusing to accede to the request of the petitioner to consider the application for amendment before deciding the application under Order 7 Rule 11 of C.P.C. Hence, in view of the above, I find that the impugned order to that extent deserves to be quashed and set aside. In view of the above, I pass the following order :
O R D E R
(i) The impugned order dated 17.02.2012 to the extent that the learned Judge has refused to consider the application for amendment before deciding the application under Order 7 Rule 11 of C.P.C. is quashed and set aside.
(ii) The learned Judge is directed to decide the application for amendment filed by the petitioner as well as the application for substitution before proceeding to decide the application under Order 7 Rule 11 of C.P.C. filed by the said respondents after hearing the parties in accordance with law.
(iii) All the contentions raised by the parties on merits are left open.
(iv) Rule is disposed of in above terms.
(v) The petition stands disposed of accordingly.