Bombay High Court
WP/5986/2003 of VASANT VISHWANATH PUKALE Vs ARVIND VISHWANATH DANTKALE on 16 June 2003
THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITIOIN NO. 5986 OF 2003WRIT PETITIOIN NO. 5986 OF 2003WRIT PETITIOIN NO. 5986 OF 2003 -------------------------------------------------------- Office Notes, Office Court’s or Judge’s orders Memoranda of Coram, appearances,
Citations and Judicial Treatment
Cited by
0
Decisions in the index citing it
Cites
0
Decisions referred to
In this index
0
Of the decisions it cites
Overruled / Questioned
0
No negative treatment found
Loading the citing and cited decisions…
This judgment in the centre: on the left the decisions it cites, on the right the decisions citing it. Colour is the treatment; choose a decision to open it.
:1:
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITIOIN NO. 5986 OF 2003
WRIT PETITIOIN NO. 5986 OF 2003
-------------------------------------------------------- Office Notes, Office Court’s or Judge’s orders Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders
-------------------------------------------------------- Shri P.M. Shah for the petitioner.
Mr. K.Y. Mandlik for respondent.
CORAM : ANOOP V. MOHTA, J.
DATE : 28.11.2005
. By the present writ petition a
challenge is made to the order dated 4th March, 1998, whereby, the District Judge, Solapur, after considering the merits of the matter, allowed the appellant/original plaintiff to withdraw the suit, with permission to file fresh suit on the same cause of action, on condition of payment of cost of Rs.
300/- to the respondents.
2. Heard the Counsel appearing for
:2:
the parties. Petitioner’s basic
contention was Order 2 Rule 1 and 2
Sections 9 and 11, of Civil Procedure
Code (C.P.C.) based on the decision of (
Smithkline Beecham Consumer Healthcare
Gambhy and others V. Hindustan Lever
Ltd. and another) (2002)(1) MLJ 453) in
which the High Court has observed that
the plaintiff should raise all grounds
available in his first suit itself. The
Court has also considered the issue of
subsequent suit on the same cause of
action. The learned Counsel appearing
for the petitioner further submitted that this amounts to multiplicity of proceedings and abuse of the process of the Court. Therefore, the discretion should not have been used by the Court in such manner.
. The learned Counsel appearing for
the respondent made a statement that
based on the order dated 4/3/1998 the
plaintiffs have already filed a composite :3:
suit on 27th April, 1998 bearing R.C.S.
No.33/1998 for an injunction and
declaration and other reliefs. The said
suit is pending. The other side i.e.
respondent/petitioner has appeared and
are contesting the said suit.
3. Provisions of order 23 Rule 1 is
very clear that the Court has power to allow the parties to file fresh suit, if sufficient grounds are made out. There is nothing borne out or pointed out by the advocate appearing for the petitioner that by granting such relief or use of such discretion in favour of the parties, prejudice would be caused to the petitioner. In the present matter, original suit was only for simple injunction and not for declaration. The Court therefore, after considering the rival contentions raised by the parties, has exercised the power rightly.
According to me, it is within the frame
work of law and the record. The order is :4:
correct.
4. Taking all this into account, the
present writ petition therefore, is
dismissed, with no order as to cost.
(ANOOP V.MOHTA,J.]