1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION 5246 OF 2009 Sharad Vasant Sawant & Ors. .. Petitioners Versus Ananta Kolya Todekar & Ors. .. Respondents Mr.A.B.Shinde for the petitioners. Mr.Bhushan Walimbe i/by Smt.Preeti B. Walimbe for respondent nos.1 to 3. CORAM : A.S.OKA, J. DATE : 20 th July 2009. P.C.: . Heard the learned counsel appearing for the petitioners and the learned counsel appearing for respondent nos.1 to 3. The learned counsel appearing for the petitioners states that he has given notice to 4 th respondent and affidavit of service has been filed. Considering the narrow issue involved, the writ petition is taken up for final hearing. 2. The learned counsel appearing for the petitioners stated that the petitioners had filed an application before the trial Court for rejection of the plaint as the same was barred by section 69(2) of the Indian Partnership Act, 1932. He pointed out that 2 instead of rejecting the plaint, the learned Judge has framed a preliminary issue of maintainability of the suit on account of bar created by section 69(2) of the said Act of 1932. He states that the petitioners are accepting that the suit was barred and therefore the plaint ought to have been rejected. The submission of the learned counsel appearing for the 1 st to 3 rd respondents is that the petitioners filed a suit in January 2007 and applied for withdrawal thereof in January 2009. He pointed out that the said application for withdrawal was not pressed and six months thereafter an application was filed by the petitioners for rejection of their own plaint. His submission is that this exercise has been done by the petitioners to enable them to obtain benefit of section 14 of the Limitation Act of 1963. He states that all this has happened after the petitioners raised an objection of bar under section 69(2) of the said Act of 1932. He, therefore, submitted that at this stage order of rejection cannot be passed permitting the petitioners to take benefit of section 14 of the said Act of 1963. 3. I have carefully considered the submissions. It is even the case made out by 1 st to 3 rd respondents (contesting defendants) that the suit was barred by 3 section 69(2) of the said Act of 1932 and that is why a preliminary issue of maintainability of the suit has been framed. The petitioners have accepted that the suit was barred. The power of rejection of plaint under clause (d) of Rule 11 of Order VII of the Code of Civil Procedure, 1908 can be exercised at any stage of the proceedings. Therefore, the said power will have to be exercised and plaint will have to be rejected. The apprehension expressed by the learned counsel appearing for the 1 st to 3 rd respondents is that by obtaining order of rejection of the plaint, the petitioners can claim benefit under section 14 of the said Act of 1963 while filing a fresh suit. 4. The benefit of section 14 of the said Act of 1963 can be granted provided the plaintiff proves that he has been prosecuting another proceeding with due diligence. Before the advantage of section 14 of the said Act of 1963 can be conferred on the plaintiff in such a case, he has to satisfy the concerned Court that he was prosecuting another proceedings in a bonafide manner. Therefore, the benefit of section 14 of the said Act of 1963 will not be available to the petitioners unless they make out a case for grant of said benefit. Only by virtue of order of rejection, the said benefit will not be 4 automatically available to the petitioners and hence, there is no basis for the apprehension expressed by the learned counsel appearing for the 1 st to 3 rd respondents. 5. Hence, I pass the following order: : O R D E R : (a) The impugned order is quashed and set aside. (b) The plaint filed by the petitioners in Special Civil Suit No.113 of 2007 stands rejected in accordance with clause (d) of Rule 11 of Order VII of the Code of Civil Procedure, 1908. (c) All contentions of the parties including the contentions referred to above are expressly kept open. (A.S.OKA,J)