cra53.11.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CIVIL REVN. APPLN. NO.53/2011 Chiranjiv Priyotosh Bandopadhyay and others -vs- Col. Mahendrapratap Bhawani Shankar Choudhary and others WITH CIVIL REVN. APPLN. NO.73/2011 Sanjay Govinddas Rathi and others -vs- Col. Mahendrapratap Bhawani Shankar Choudhari and others ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ In CRA No.53/2011 Shri M. B. Naidu, learned counsel for the petitioners. In CRA No.73/2011 Shri S.V. Purohit, learned counsel for the petitioners Shri R. R. Srivastava, learned counsel for the R-1. CORAM : R. M. SAVANT, J. DATED : 07/07/2011. The above Civil Revision Applications arise out of a common order dated 09/03/2011, by which order the application under Order 7 Rule 11 of the Civil Procedure Code filed by the applicants in Civil Revision Application No.53/2011 and Civil Revision Application No.73/2011, came to be rejected. The respondent No.1 herein is the plaintiff, who has filed Special Civil suit No.400/2002 seeking cancellation of sale deed and in the alternative seeking specific performance of Term 2 (a) of sale deed dated 14/03/2000, which is in respect cra53.11.odt 2/3 of the proposed pent house and open terrace rights which the petitioner in Civil Revision Application No.73/2011 was to construct and hand over to the plaintiff. In the said suit an amendment application was moved to join the purchasers of the flat constructed in the building in question, pursuant to which the applicants in Civil Revision Application No.53/2011 were joined as party defendant Nos.4 to 37 to the proceedings. It is required to be noted that an application under Order 7 Rule 11 of the Civil Procedure Code came to be filed by the defendant Nos.4 to 37 at the stage when the evidence of plaintiff was already completed and the defendant No.1 had filed his affidavit of evidence as contemplated in Order 18 of the Civil Procedure Code. The said application under Order 7 Rule 11 of the Civil Procedure Code was filed by the defendant Nos.4 to 37 i.e. the applicants in Civil Revision Application No.53/2011 principally on the ground that the suit as filed does not disclose any cause of action, as the agreement as contemplated by Clause 2 (a) of sale deed dated 14/03/2000 has not been entered into between the parties. The trial Court on the basis of the pleadings, as also by adverting to the defence in the written statement, came to a conclusion that the application as filed was bereft of merit, as the suit could not be thrown out at the threshold and would require evidence to be led by the parties. In my view, the reasons mentioned by the trial Court in the impugned order dated 09/03/2011 are unexceptional in the context of the pleadings in the plaint and, cra53.11.odt 3/3 therefore, do not call any interference in the revisional jurisdiction. As mentioned herein above, the application came to be filed at the stage when the affidavit of evidence has been filed by the defendant No.1 and his cross-examination was in process. The trial Court was therefore, right that such an application could not be entertained at the said stage. In that view of the matter, no case for interference is made out. Both the above Civil Revision Applications are accordingly dismissed. However, it is clarified that the said Special Civil Suit would be decided on its own merits and in accordance with law, uninfluenced by any observations made in the impugned order or in the instant order. JUDGE KHUNTE