1 wp-6431.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6431 OF 2011 The Chairman, Yerwada Gadi Wadar Mazdoor Sahakari Society Limited and ors. : Petitioners versus Ms/ Nikhil Builders : Respondents. Mr. Pankaj Das for the Petitioners. Mr. V B Rajure i/by Mr. C D Konale for the Respondetns. CORAM : R M SAVANT, J. DATE : 05th December 2011 P.C. 1 The above Petition takes exception to the order dated 29/06/2011 passed by the learned Civil Judge, Senior Division, Pune by which order the Application Exhibit-127 filed by the Petitioners/Defendants seeking a direction that the Plaintiffs to submit clarification in respect of the order passed by this Court in First Appeal No.257/2000 came to be rejected. 2 It is required to be noted that the Respondents herein are the original Plaintiffs who had earlier filed Special Civil Suit No.1705/94 for specific performance against the Petitioners herein and for other reliefs. The said suit came to be amended and in stead of Plaintiffs Nikhil Builders through its Parnters, the amendment was through its “Proprietor”. The said suit, it appears, came to be dismissed on account of the fact that the notice under Section 164 of the Maharashtra Co-operative Societies Act was not issued prior 2 wp-6431.11.sxw to institution of the said suit. This resulted in filing of an Appeal being First Appeal No.257/2000 filed by the said Plaintiffs i.e. the Respondents herein. The said First Appeal came to be disposed of by this Court by granting liberty to the Plaintiffs to file a fresh suit after giving notice. Accordingly the instant suit i.e. Special Civil Suit No.445/2002 came to be filed. The said suit came to be filed in the name of the Proprietor. In the said suit i.e. Special Civil Suit No. 445/2002, an application came to be filed by the Petitioners herein under Order 7 Rule 1 of the Code of Civil Procedure for dismissal of the suit on the ground that the said suit does not disclose any cause of action and also on the ground that though the First Appeal was filed in the name of the Partnership Firm, the instant suit has been filed in the name of Proprietor. Suffice it to say that the Application Exhibit 53 filed under Order 7 Rule 1 of the Code of Civil Procedure came to be rejected by the trial Court by an order dated 25/7/2003 on the ground that the earlier suit also by virtue of the amendment was filed through the Proprietor, so is the case in the instant suit i.e. Special Civil Suit No.445 of 2002. The said matter was carried by way of filing Civil Revision Application No.490 of 2003 in this Court. This Court rejected the Civil Revision Application by observing that in the event the Defendant is aggrieved by the said order dated 25/7/2003, he can always challenge the same at the time of final decree if the same goes against him. The order passed by this Court was carried to the Apex Court by way of filing SLP being No.8493 of 2004. The said SLP came to be dismissed by the Apex Court by an order dated 14/09/2007. 3 wp-6431.11.sxw 3 The instant application, as the averments disclose, seems to be re- agitate the same issue which was urged on the earlier occasion and in respect of which the matter had reached the Apex Court as mentioned above. Since this Court has granted liberty to the Petitioners to urge the said issue if the decree ultimately goes against him, in my view, the interest of the Petitioner is adequately protected. In that view of the matter, no case for interference in the writ jurisdiction of this Court is made out. The above Writ Petition is accordingly dismissed. [R.M.SAVANT, J]