1 wp 1125.2009.sxw srk IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1125 OF 2009 Santajee Baburao Modak .. Petitioner vs Kerujee Genujee Kawade & Ors. .. Respondents Mr. Sanjeev J. Rairkar i/b N.C. Walimbe, Advocate for the Petitioner. Mr. Vineet B. Naik i/b S.R. Kulkarni, Advocate for Respondent No.24. CORAM: A.S.OKA,J DATE: 4th September, 2009. JUDGMENT 1 Considering the narrow controversy involved, Writ Petition is taken up for final disposal at the admission stage. The challenge by the original plaintiff is to an order passed by the trial court on 21st June, 2008 by which an application made by the petitioner under Rule 2-A of the Order XXXIX of the Code of Civil Procedure, 1908 (hereinafter referred to as” the said Code”) has been ordered to be filed on the ground that the petitioner ought to have filed a separate application in as much as an application under Rule 2-A of the Order XXXIX of the said Code requires a separate judicial inquiry. 2 The learned counsel appearing for the petitioner pointed out that the said order has been passed after an affidavit in lieu of examination in chief was filed by the petitioner in support of the said application. His submission is that the 2 wp 1125.2009.sxw learned trial Judge ought to have decided the application on merits and such hyper-technical approach could not have been adopted. 3 The learned counsel appearing for the respondent No. 24 placed reliance on the decision of this Court in case of Rampyari wd/o Sukhdeo Daga & Ors. Vs. Niladevi wd/o Narayandas Jakhotiya & Ors, (2007 (4) Mh.L.J. 213). He submitted that the view taken by this Court in the said decision is that an application under Rule 2-A of Order XXXIX of the said Code being an independent proceeding is required to be separately registered as a Misc. Judicial Case/ application. He submitted that the impugned order is consistent with the view taken by this Court and instead of filing a separate application, the petitioner has approached to this Court under Article 227 of the Constitution of India. He submitted that no interference is called for. 4 I have given careful consideration to the submissions. I have perused the decision of this Court in the case of Rampyaribai (supra). The decision of this Court in the case of Rampyaribai (supra) cannot be read as a decision laying down a ratio that an application made by a party under Rule 2-A of Order XXXIX of the said Code in a pending suit cannot be considered on merits. If an application is made under Rule 2-A of Order XXXIX of the said Code in a pending suit alleging breach of interim order of injunction passed in the said suit, there is no prohibition against Court considering such application on 3 wp 1125.2009.sxw merits. The court has a discretion either to entertain and decide the application or to direct that the application shall be registered as a separate Misc. Application. Where an application is sought to be made in a suit is fixed for final arguments, the trial court may exercise the discretion by directing the party to get the application converted into a Civil Misc. Application to ensure that the conclusion of the suit will not be delayed. The decision of this Court in the case of Rampyaribai (supra) does not prohibit the court from entertaining the application under Rule 2-A of the Order XXXIX of the said Code made in a pending suit. The judgment of this Court deals with purely a procedural requirement. Non compliance of the said requirement is never fatal. In the facts of the present case when the petitioner had already filed an affidavit in support of the application and even a court commissioner was appointed, there was no warrant for adopting such a hyper-technical approach. If the learned Judge was of the view that a separate application needs to be filed, he could have ordered conversion of the said application into a Misc. Application. 5 Under these circumstances, the impugned order deserves to be quashed and set aside and the trial court will have to be directed to decide the application at Exhibit-89 in accordance with law. 4 wp 1125.2009.sxw 6 Hence, I pass following order: 1 The impugned order is quashed and set aside and the learned Trial Court is directed to finally decide the application at Exhibit-89 in the light of the above observations made in this order. 2 The application shall be decided as expeditiously as possible preferably within a period of three months from the date of production of an authenticated copy of this order before the Trial Court. 3 All the contentions of the parties are expressly kept open. Judge.