il" Bsnsl °> IN THE HIGIJ COURT OF JTTDICATURE CHHATTIE-GARH AT BILASPUR W.P.NO. 2-0) /2005 PTi'T'TTIO^TF'R oiATNT'IFF Ramashanker Rai S/o Late Kedarnath Rai, Age<3 about 6s years, R/o Mangla Medical store Naharani Trfard,Collectorate Rosd, jagdalpur, Distt.sastar (CG). \T3RC-US |!«3; ;j@l|3 RTi'sPONDENTR DT:"F-e-yr;^T^v g ^<^ \^.3-^3*^ •^^y"L^ '^ ,^ •s,»'tffiA^i ..-oV ...-•"s: .«***'. ••;'o .'l) RaJ Kumar Modi S/o Modi shanti Kumar Jaln, Age<3 about 44 years, R/o Pratapganj para, jagdalpur, Distt.Bastar (CG) 2) Heera Lal .jain S/o Chainsukh Jain, Aged about 45 years, R/o Pratapganj Prara, jagdaipur.Dlstt.Bastar (CG). ,3) v. Venkatrao / S/Q B. Narsingh Rao, Aged afcout 35 years, R/o peatapganj para, Jagdalpur.Distt.Bastar (CG). ;.-"-<:^ f' 'Wff'^SsTTTION TJMT'EP. ARTICLE 226/227 OF THE COKSTITT.rpION OF -7T •?£> T ND I A mGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra W.P. Na 201/2005 PETITIONER RESPONDENTS Ramashanker Rai Versus Raj Kumar Modi and others Appearance: Shri P.R. Patankar with Shri Kunal Das, counsel for the petitioner. Smt. Sarita Shanna, counsel for the respondents. WRIT PETITION UNDER ARTICLE 226/227 OFTHE CONSTITUTION OF INDIA ORAL ORDER (16.09J2010) This writ petition is directed against the order passed by the appellate court on 14/12/2004 dismissing the petitioner's appeal under Order 43 Rule 1 (a) ofCPC. The trial court by its order dated 22/03/2004 has directed for retum ofplaint to be presented before the court having jurisdiction. It was also directed by the trial court that if the plaint is not taken back, the same shall be treated to have been dismissed under Order 7 Rule 11 ofCPC. (2) Under Order 43 Rule 1 (a) an appeal would lie from an Order under Rule 10 ofOrder 7 ofCPC retuming a plaint to be presented to the proper court, except where the procedure prescribed in Rule 10-A ofOrder 7 has been followed. (3) Order 7 Rule 10-A provides that where in any suit after Ifae defefldant has appeared, the court is of the opinion that the plaint y-'vw'!SSSS:.. ''''-SiS's i'p"^^ 2 a ^^;-tti^;^.5S S!E;;;lpjB!ijg^S^ should be retumed, it shall, before doing so, intimate its decision to the plaintiffwho may make an application to the court specifying the court in which he proposes to present the plaint after its retum and praying that the eourt may fix a date for the appearance ofthe parties in the said court and requesting that the notice of the date so fixed may be given to him and to the defendant. It is also provided in sub Rule 3 ofRule 10-A that where an application is made by the plaintiff under Sub Rule (2), the court shall, before retuming the plaint and notwithstanding that the order for return ofplaint was made by it on the ground that it has no jurisdiction to try the suit, fix a date for the appearance ofthe parties in the court in which the plaint is proposed to be presented and give to the parties the notice ofsuch date. (4) In the present case, the trial court has followed the procedure under Order 7 Rule 10-A ofthe CPC giving intimation to the plaintiff to take back the plaint, however, it appears that the plaintiff has not moved any application for receiving back the plaint and has filed an appeal under Order 43 Rule 1 (a) of CPC. Since the appellate court has held that in the event the plaint is not teken tack the same shall .» be treated to be rejected under Order 7 Rule 11 of CPC, the appeal preferred by the petitioner under Order 43 Rule 1 (a) ofCPC was not ,^ maintainable. The petitioner, in such situation, could have preferred a regular appeal under section 96 ofCPC to challenge the order passed by the trial court retuming the plaint under section 10-A ofOrder 7. h 1)-^ (5) At this stage, leamed counsel for the petrtioner seeks permission ofthe court to withdraw this writ petition with liberty to file a duly constituted first appeal along with an application for condonation ofdelay in filing the appeal. (6) The prayer for withdrawal of writ petition with the liberty aforesaid is allowed. (7) Writ petition is dismissed as withdrawn with the liberty aforesaid. Certified copy ofthe order impugned in this writ petition shall be retumed to fhe petitioner on supplying xerox copy thereof. Sd/- Prashant Kumar Mishra Judge ' y