Bombay High CourtWP/98/2016dismissedrule discharged

Rahmohammad Bhurabhai Manjare v. Jangli Madar Railiwale And Others

2016-01-11Hon'Ble Shri Justice Z.A. Haq2 pages

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR WRIT PETITION NO.98/2016 Rajmohammad Bhurabhai Manjare ..Versus..

Jangli Madar Railiwale and others - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ------------- - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : Z.A. HAQ, J.

DATE : 11.1.2016 Heard Shri J.B. Gandhi, advocate for the petitioner. The original defendant no.4 filed an application (Exh. No.25) under Order 7 Rule 11 of the Code of Civil Procedure praying that the plaint be rejected as it is barred by res judicata and as the plaintiffs had earlier filed Regular Civil Suit No.68/2011 against the same defendant which was withdrawn without there being proper application as required by Order 23 Rule 1 of the Code of Civil Procedure and without liberty granted by the trial Court to file fresh suit. After hearing the learned advocate for the petitioner and examining the documents placed on the record, I find that the order passed by the trial Court rejecting the application under Order 7 Rule

2 wp98.16 11 of the Code of Civil Procedure cannot be faulted with. I do not find any patent irregularity or illegality which necessitates the interference by this Court in extra-ordinary writ jurisdiction. The writ petition is dismissed. No costs.

At this stage, Shri Gandhi prays that he may be permitted to file an application before the trial Court praying for framing the preliminary issue and deciding it as preliminary issue. I have not examined the legality of this submission and it will be open for the trial Court to consider the application filed by the defendant no.4 regarding framing of preliminary issue and deciding it as preliminary issue, according to law.

JUDGE Tambaskar.