1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CIVIL WRIT PETITION No.7343/2005 Basant Kumar Satthi V. Smt. Arti Ghosh & Anr and S.B. CIVIL WRIT PETITION No.7344/2005 Basant Kumar Satthi V. Smt. Arti Ghosh & Anr DATE OF ORDER ::: AUGUST 31st, 2009 P R E S E N T HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Shri V.K. Mishra, for petitioner. Shri Rahul Tiwari on behalf of Shri R.K. Mathur, for respondent No.1. BY THE COURT : 1. At the request of the learned counsel for the parties the arguments were heard and the writ petitions are being disposed of. 2. Since both the parties in both the writ petitions are one and same and the points involved in both the writ petitions are also same, therefore, both the writ petitions are are being disposed of by this common order. 3. The plaintiff respondent No.1 instituted two separate suits for recovery of the amount under O.37, CPC, in the trial 2 court against the defendant petitioner. The defendant petitioner moved an application in the trial court for dismissal of the suit on the ground that the provisions of O.37 CPC, have not been complied with. The specific objection was that the provisions of Clause (a) and (b) of Sub-Rule 1 of Rule 2 of O.37, CPC, have not been complied with, it was the duty of the plaintiff to make a specific averment to the effect that the suit is filed under this Order; and that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint. During the pendency of that application, the plaintiff moved an application under O.6 R.17 CPC for amendment in the plaint with regard to Clause (a) and (b) of Sub-Rule 1 of Rule 2 of O.37, CPC, and the trial court vide its order dated 22.2.2005 allowed the said application of the plaintiff under O.6, rule 17, CPC at the costs of Rs.200/-. The defendant thereafter moved a review application under O.47 R.1 read with section 114 and 151 CPC mentioning therein that the application under O.6 R. 17 CPC filed by plaintiff was contested on merits, whereas in the order it has been 3 mentioned that the defendant has raised an objection only in respect of the costs. The said application of defendant was also dismissed by the trial court vide order dated 21.7.2005. The same orders were passed in second suit also. Being aggrieved by the aforesaid orders i.e. dated 22.2.2005 and 21.7.2005, the defendant has preferred these two writ petitions. 4. The submission of the learned counsel for the petitioner is that the defendant petitioner moved an application raising objection that provisions of O.37 CPC have not been complied with, therefore the suit is liable to be dismissed and without deciding that application, the trial court allowed the application of plaintiff under O. 6 R. 17 CPC making the application of defendant, redundant and further committed an illegality in dismissing the review application of the defendant on the ground that it has been filed after 6 days, whereas it was filed on the next day itself. 4 5. Learned counsel for the respondents / defendants opposed the writ petitions and prayed for dismissal of the same. 6. I have considered the submissions of the learned counsel for the parties in the light of the reasons assigned by the learned trial court in the impugned orders. It appears that the defendant raised an objection about the non-compliance of Clause (a) and (b) of Sub-Rule 1 of Rule 2 of Order 37 CPC and soon thereafter, the plaintiff moved an application under O. 6 R.17 CPC in this regard. The trial court in its order dated 22.2.2005 while allowing the application of plaintiff, has mentioned that the defendant has objection only in respect of costs. The order bears the signatures of counsel for the defendant. The objection of the petitioner to the effect that he contested the application for amendment on merits, has been dealt with by the trial court while dismissing the application under O.47 R. 1 CPC vide order dated dated 21.7.2005. The trial court has observed that from the order dated 22.2.2005, it is clear that the defendant 5 raised an objection in respect of application under O.6 R.17 CPC about the costs only. He was aware about the order dated 22.2.2005, if he contested the application on merits then on the same day an application should have been moved. From the certified copies, it appears that the application under O.47 R.1 CPC was filed on the next day and not after 6 days as mentioned in the order dated 21.7.2005. It appears from the Annexure 3, the application under O.47 R.1 CPC that the date of presentation has been mentioned as 23.2.2005 and notices of that application were issued on 28.2.2005. After considering all the facts and circumstances, I find that it would have been more better by the trial court if the application of the petitioner raising an objection about maintainability of the suit, should have been heard and disposed of along with an application under O.6 R. 17 CPC filed by the plaintiff. But from the order dated 22.2.2005 it does not appear that any objection was raised by the defendant to the effect that his application in this regard is also pending and be disposed of 6 simultaneously. From the order dated 22.2.2005, it is clear that the defendant raised an objection only in respect of the costs. The trial court, itself, has considered the application under O. 47 R. 1 CPC and it was not found to be correct that the application was argued on merits also. Apart from above, it is relevant to mention that objection of the defendant petitioner to the effect that it has not been mentioned in the suit that suit has been filed under the said order and that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint, were only procedural in the nature and should not and cannot have been made a basis of dismissal of the suit. The plaintiff moved an application for amendment in the plaint and in my view, the trial court was fully justified in allowing the amendment in the suit as prayed for in the application. I do not find any illegality or jurisdictional error in both the impugned orders so as to interfere with the same under Article 227 of the Constitution of India. The defendant will have a right to contest the suit on merits. 7 7. In view of the above discussions, I do not find any force in any of the submissions of the learned counsel for the petitioner. Both the writ petitions are dismissed being devoid of merits. 8. The parties are directed to bear their won costs. 9. A copy of this order may be placed in the connected writ petition. (Narendra Kumar Jain), J. chauhan/