Dismissed

Shriniketan Niyojit Sahakari Gruhanirman Sanstha Maryadit Thr. Mr. Chandrakant Gangaram Sumshette v. Sau. Sangita Madhukar Gutte and Another

Bombay HC6 Sept 2023CRA/150/2023

Case brief

AI extract

What is this about?

This High Court dismissed a civil revision application challenging a trial court order that failed to explicitly record observations on objections to nonjoinder and misjoinder. The Court held the order legally proper, allowed the applicant to raise the objection later, and dismissed the revision.

What did the court decide?

Leave granted to raise objections of misjoinder by way of amendment; Civil Revision Application dismissed.

Shriniketan Niyojit Sahakari Gruhanirman… — Civil Procedure and Limitation | Bombay HC (2023)

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 927-CRA.150-23.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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927 CRA NO.150 OF 2023

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SHRINIKETAN NIYOJIT SAHAKARI GRUHANIRMAN SANSTHA
MARYADIT THR. MR. CHANDRAKANT GANGARAM

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SUMSHETTE
VERSUS

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SAU. SANGITA MADHUKAR GUTTE AND ANOTHER

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Advocate for Petitioners/Applicants : Ms. A. S. Jadhav.
Advocate for Respondent No.1 : Mr. Rajendrrraa Deshmukkha
(Senior Counsel) i/b Mr. Devang R. Deshmukkh a/w
Ms. Rakshanda R. Jaiswal.

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CORAM : S. G. MEHARE, J.
DATE :06.09.2023

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PER COURT:-

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1. Heard the respective learned counsels.

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2.A short question has been raised that the learned Civil
Judge Junior Division, Parli Vaijnath, did not record his
observations as regards the objection to nonjoinder and
misjoinder of the parties in the application along with other
objections as regards the cause of action and Section 9A of the
Civil Procedure Code.

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3. Learned counsel for the applicant would submit that the petitioner has no grievance against the order, not considering the objection under Order VII Rule 11 and Section 9A of the Civil Procedure Code (Maharashtra Amendment Act).

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 927-CRA.150-23.odt

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However, she has vehemently argued that the Court should
have recorded the findings on the objection as to the
nonjoinder and misjoinder of parties as provided under Order I
Rule 13 of the Civil Procedure Code. She has referred to the
impugned order of the learned Civil Judge Junior Division and
prayed to allow the revision application.

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4.Per contra, learned senior counsel would submit that the
Court has correctly observed that there was a cause of action to
file the suit. The cause of action goes to the root of the suit,
showing concern with the opponents. Therefore, such an issue
cannot be decided as a preliminary issue. It is a matter of fact-
finding. Hence, the impugned order is correct and proper.

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5.The impugned order shows that the core issue, as per the
objection raised, was that there was no cause of action. Hence,
his prayer is liable to be rejected under Order VII Rule 11 of
the Civil Procedure Code. Learned Trial Court has examined
the facts of the case and correctly recorded that the plaint
disclosed its cause of action against all the defendants. Since
there was a cause of action against the defendants, he correctly
recorded the findings, rejecting the application which has been
impugned before the Court. As far as raising the objection as to
nonjoinder and misjoinder is concerned, the parties shall take

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 927-CRA.150-23.odt

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such objections at the earliest possible opportunity and, in all
cases, where issues are settled at or before such settlement.
The reason given in the said rule is that if such objections are
not taken at the earliest possible opportunity, any such
objection shall not taken subsequently, and it shall be deemed
to have been waived. Since the learned Trial Judge has held
that there is a cause of action, the Court is of the view that the
impugned order is legally proper and correct. However, it has
been stated that the written statement has been filed, but the
learned counsel has no instructions on whether this objection
of misjoinder has been raised therein. If objection on
misjoinder or nonjoinder of the necessary party has not been
raised in the written statement filed by the present petitioner.
In that case, to make a justice, leave is granted to add such
objections by way of amendment within reasonable time
without having any adverse effect under Order I Rule 13.

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6. Civil Revision Application stands dismissed. No order as

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to costs.

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 (S. G. MEHARE, J.)

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vmk/-

Shriniketan Niyojit Sahakari Gruhanirman Sanstha Maryadit Thr. Mr. Chandrakant Gangaram Sumshette v. Sau. Sangita Madhukar Gutte and Another

Case brief

What is this about?

What did the court decide?

Shriniketan Niyojit Sahakari Gruhanirman Sanstha Maryadit Thr. Mr. Chandrakant Gangaram Sumshette v. Sau. Sangita Madhukar Gutte and Another

Case brief

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