WP/9516/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9516 OF 2010 Naval Firoz Pagadiwala, Thru’ Sunil Vijayarao Tingre, POA. ... Petitioner V/s. Ajij Ul Haq Arif Ul Haque ... Respondent Mr. N.V. Walawalkar i/b. Mr. V.B. Tapkir for the Petitioner. Mr. S.S. Kanetkar for the Respondent. CORAM : SMT. NISHITA MHATRE, J. DATE : 20 TH DECEMBER, 2010. P.C. : 1. This Writ Petition has been preferred to challenge the order dated 1st September, 2010 passed by the Small Causes Court, Pune in Civil Suit No.217 of 2008 and the order dated 15th November, 2010 passed by the District Judge, Pune in Civil Revision Application No.54 of 2010, thereby deleting paragraphs 2, 3 and 10 to 18 of the written statement. 2. In an application filed by the respondent he had contended that the averments in the aforesaid paragraphs were irrelevant, frivolous, scandalous and an abuse of the process of Court and, therefore, they ought to be struck off from WP/9516/2010 2 the defence of the petitioner. The pleadings in paragraphs 2 and 3 are with respect to the description of the suit property. The petitioner, who is the defendant before the trial Court, has contended that the description of the suit property is erroneous. The pleadings in paragraphs 10 to 18 are a statement of the chronological events which have taken place prior to filing of the present Suit. The petitioner has contended in paragraph 19 that in view of the pleadings in paragraphs 10 to 18, the Suit is barred by res-judicata. 3. In my opinion, both the Courts below have committed an error by passing the impugned orders. Whether the description of the suit property is correct or not is a fact which the petitioner-defendant has to plead in order to establish that the premises in question are not the same as described in the plaint. Therefore, the deletion of paragraphs 2 and 3 is inappropriate. As regards the chronological events mentioned in paragraphs 10 to 18, in my opinion, the deletion of these paragraphs is also not correct. Paragraph 19 which contains the pleadings in respect of res-judicata would be rendered nugatory if the earlier paragraphs are not maintained. The pleadings in paragraph 19 are based on those contained in paragraphs 10 to 18. 4. It is submitted by Mr. Kanetkar, the learned Advocate appearing for the respondent, that an application had been filed under Section 10 of the Code of WP/9516/2010 3 Civil Procedure by the petitioner herein for a stay of the Suit. That application has been dismissed. While dismissing the application, according to Mr. Kanetkar, the trial Court has observed that the subject matter of the previous Suit was not the same as the present Suit, as the grounds for eviction were different. Mr. Kanetkar submits that since the reasons for the pleadings which have been deleted by the impugned order are the same, as were raised in the application filed under Section 10 of the Code of Civil Procedure, the Courts below have rightly deleted those paragraphs. According to him, the applicant had accepted the order passed under Section 10 of the Code of Civil Procedure and, therefore, he has no right now to contend that the present Suit is barred by res-judicata. Mr. Kanetkar also places reliance on the judgment of a learned Single Judge of this Court (Nijjar, J), as he then was, in the case of SNP Shipping Services Pvt. Ltd. & Ors. vs. World Tanker Carrier Corporation & Anr., reported in 2000 (2) Mh.L.J. 570, in support of his submission that the trial Court can always strike off pleadings which are unnecessary under Order VI Rule 16 of the Code of Civil Procedure. 5. In my opinion, it cannot be said that the pleadings contained in the paragraphs which have been struck off are unnecessary. No prejudice would be caused to the respondent if the pleadings are maintained. Merely because there are pleadings on record which controvert the description of the suit property contained in the plaint and the narrative of the chronological events which have WP/9516/2010 4 taken place before the suit was filed, it would not necessarily mean that the facts must be accepted by the Court. It would still be necessary for the petitioner- defendant to prove those facts. Therefore, both the Courts have erred in deleting the aforesaid paragraphs. In my opinion, the pleadings were not unnecessary, nor frivolous as they would go to the very root of the matter. It would be too harsh to delete the pleadings contained in those paragraphs at the very threshold. The Court could possibly take the view that the petitioner-defendant has not been able to justify the pleadings contained in the written statement. However, that would be after evidence is led and parties are heard finally. 6. Accordingly, the impugned orders order dated 1st September, 2010 passed by the Small Causes Court, Pune in Civil Suit No.217 of 2008 and dated 15th November, 2010 passed by the District Judge, Pune in Civil Revision Application No.54 of 2010, are set aside. 7. The writ petition is allowed.