Allowed

Govind Shivram Kadam and Ors. v. Sou. Maya Sashikant Pawar and Ors.

Bombay HC6 Dec 2023WP/1183/2022

Case brief

AI extract

What is this about?

The High Court quashed the Trial Court's order dismissing the petitioner's plea to restore Special Civil Suit No.172 of 2012. Relying on Section 151 CPC and a Full Bench decision, the Court ordered the suit restored and directed payment of the deposited amount to the respondents.

What did the court decide?

Impugned order quashed; Special Civil Suit No.172 of 2012 restored to Trial Court file.

Govind Shivram Kadam and Ors. Vs Sou. Maya Sashikant… — Execution and Attachment | Bombay HC (2023)

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36-wp1183-2022.doc

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AGK

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.1183 OF 2022

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Digitally signed by ATUL ATUL GANESH GANESH KULKARNI KULKARNI Date: 2023.12.06 17:52:53 +0530

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Govind Shivram Kadam & Ors.… Petitioners
V/s.

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Maya Sashikant Pawar & Ors.… Respondents

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Mr. Siddhesh Pilankar i/by Ms. Sunita Pagey for the
petitioners.

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Ms. Pranali Railkar with Mr. Ajay A. Joshi for
respondent No.5.

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CORAM :AMIT BORKAR, J.

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DATED:DECEMBER 6, 2023

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P.C.:

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1.The petitioner challenges order passed by the Trial Court
refusing to restore Special Civil Suit No.172 of 2012 on the ground
that the suit was dismissed in exercise of power under Order 9
Rule 5 of the Code of Civil Procedure, 1908. The Trial Court
relying on sub-clause (2) of Rule 5 of Order 9 of the Code of Civil
Procedure, 1908 held that proper remedy of the plaintiff in such
situation is to file fresh suit.

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2.Learned advocate for the petitioner invited my attention to
the Full Bench decision of this Court in Hariba Tatyaba More
(D) Thr. LRs & Ors. v. Dada Ekhatnath More & Ors.
reported in 2020 (2) ALL MR 823 (FB). Full Bench of this Court in

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36-wp1183-2022.doc

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the said judgment has held that the Court has power to restore
such suit in exercise of power under Section 151 of the Code of
Civil Procedure, 1908. Therefore, the order passed by the Trial
Court deserves to be quashed and set aside.

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3.The impugned order dated 7 February 2020 passed by the 6th
Additional Judge, Small Causes Court, Pune in Special Civil Suit
No.172 of 2012 is quashed and set aside.

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4. Special Civil Suit No.172 of 2012 is restored to the file of the Trial Court.

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5.The amount of Rs.25,000/- deposited as per order dated 8
February 2022 be paid to the respondents.

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6.The writ petition stands disposed of in above terms. No
costs.

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(AMIT BORKAR, J.)

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Govind Shivram Kadam and Ors. v. Sou. Maya Sashikant Pawar and Ors.

Case brief

What is this about?

What did the court decide?

Govind Shivram Kadam and Ors. v. Sou. Maya Sashikant Pawar and Ors.

Case brief

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What did the court decide?

What the court decided

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