1 SB Civil Writ Petition No.459/2009 M/s. Shree Krishan Dayal Pvt. Ltd. vs. Bharat Kumar Solanki & Anr. S.B. Civil Writ Petition No.459/2009 M/s. Shree Krishan Dayal Pvt. Ltd. vs. Bharat Kumar Solanki & Anr. Date : 23.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.GR Punia, for the petitioner. - - - - - Heard learned counsel for the petitioner. The petitioner is aggrieved against the order dated 10.10.2008 passed by the trial court by which the petitioner's application filed under Section 114 CPC for the review of judgment and decree dated 29.9.2007, was rejected by the court below. The limited grievance of the petitioner/ plaintiff is that before the trial court, before his suit was dismissed, the petitioner submitted an application under Section 340 Cr.P.C. for taking action against the defendant no.2 because of his filing false affidavits before the Court and the petitioner's allegation made in the application under Section 340 Cr.P.C. (Annex.1), 2 SB Civil Writ Petition No.459/2009 M/s. Shree Krishan Dayal Pvt. Ltd. vs. Bharat Kumar Solanki & Anr. the defendant no.2 in his affidavit stated that he started the plaintiff's industry in the year 1998 and continued it upto January. According to the petitioner, in another suit, the defendant no.2 stated in affidavit that he run the gangsaw for three months in the unit and invested huge amount and also stated that he did not take possession of the company. In view of the above, there are two contradictory statements on oath of the defendant no.2. The grievance of the petitioner is that the trial court should have either allowed the application or should have rejected the application but the trial court did not apply its mind and did not pass any order even of rejection. Therefore, the trial court should decide the application of the petitioner filed under Section 340 Cr.P.C. An action for perjury and under Section 340 Cr.P.C. can be initiated by the Court on finding that it is expedient in the interest of justice to do so. The review application was dismissed by the trial court and this Court has perused the facts of the case as permissible under Section 340(2) 3 SB Civil Writ Petition No.459/2009 M/s. Shree Krishan Dayal Pvt. Ltd. vs. Bharat Kumar Solanki & Anr. Cr.P.C. The petitioner/plaintiff's suit was for recovery of money only wherein the issues were with respect to the claim of the plaintiff for money amounting to Rs.2,92,088/-. The question of possession and running of the unit was as such not involved in the suit but the civil court in para no.10 of the judgment clearly held that the unit went into the hands of the defendant no.2 in October, 1998 and was closed in the year 1999 and, therefore, in February, 1999, it was not possible to process the marble. Be it as it may be, ultimately, the petitioner/plaintiff's suit was dismissed by the trial court vide judgment and decree dated 29.9.2007 and that judgment and decree dismissing the suit has not been challenged by the petitioner by preferring appeal wherein the plaintiff could have sought the order on application filed under Section 340 Cr.P.C. The trial court held that in that view of the matter, there is no reason to reopen the case submitted under Section 340 Cr.P.C. At this juncture, it will be worthwhile to mention here that the non-passing of any order under Section 340 Cr.P.C. is not unknown but 4 SB Civil Writ Petition No.459/2009 M/s. Shree Krishan Dayal Pvt. Ltd. vs. Bharat Kumar Solanki & Anr. recognised under Section 340(2) Cr.P.C. which clearly meets with this contingency of not passing any order under Section 340 Cr.P.C. and the power has been given to the Court to which appeal lies from the order of the subordinate court to pass any order. Looking to the facts of the case, this Court is not convinced that any purpose can be served and it will be expedient in the interest of justice to initiate the proceedings by hearing the application filed by the plaintiff/petitioner under Section 340 Cr.P.C. in a matter where the suit was decided against the petitioner about 1½ years ago i.e. 29.9.2007 and that dismissal has not been challenged by preferring even regular first appeal by the petitioner. In view of the above, this Court is not inclined to interfere in the impugned order. There is no merit in the writ petition and the same is hereby dismissed. (PRAKASH TATIA), J. 5 SB Civil Writ Petition No.459/2009 M/s. Shree Krishan Dayal Pvt. Ltd. vs. Bharat Kumar Solanki & Anr. S.Phophaliya