1 WP-4672.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4672 OF 2011 Kashinath Gopal Mhatre Since deceased through his LRs 1A] Raju Kashinath Mhatre & ors. : Petitioners Versus Baburao Shankarrao Sonawane : Respondent. Mr.Rameshwar N Gite for the Petitioners. Mr. Sachindra B Shetye for the Respondent. CORAM : R M SAVANT, JJ. DATE : 08th November 2011 P.C. 1 The above Petition takes exception to the order dated 1/4/2011 by which order the application filed by the Petitioners, who are the original Defendants for restoration of Application-Exhibit 31 filed by them under Order 6, Rule 17 of the Code of Civil Procedure came to be rejected. 2 It appears that the Petitioners had filed the said Application- Exhibit-31 questioning the maintainability of the suit on the ground of res- judicata, as according to them, the issue involved in the suit has already been concluded between the parties in some earlier proceedings. 3 It is pertinent to note that the written statement has been filed by the Petitioners on 25/4/2007 and thereafter the issues have been framed on 2 WP-4672.11.sxw 13/8/2007 in the said suit. No such contention seems to have been taken at that time by the Petitioners. The Application-Exhibit-31 was filed on 6/8/2010. It is further pertinent to note that the Plaintiff has filed affidavit of examination in chief-Exhibit-35 on the same day. In view of the fact that the Petitioners were unrepresented on the day when the said application came up for hearing, the said application-Exhibit-31 was disposed of by the trial Court by its order dated 28/1/2011. It appears that the Petitioners thereafter moved an Application-Exhibit-41 for setting aside the order passed on Exhibit-31 (wrongfully mentioned in the impugned order as Exhibit 32) by referring to Order 26 Rule 106. The said application was not entertained on the ground that no such application could be filed under the said provision. The Petitioners therefore moved an application Exhibit-46 for amendment of the said application Exhibit 41 so as to correct the cause title of the said applicatin to substitute Order 21 Rule 106 by Section 151 of the Code of Civil Procedure. The said Application came to be rejected by the impugned order dated 1/4/2011. Though the trial Court has rejected the said application on the ground that such an application would not be maintainable as the Application- Exhibit-31 cannot be called a pleading, this Court need not labour over the said issue, as other wise in the facts and circumstances of the case, the application under Order 7 Rule 11 of the Code of Civil Procedure has rightly not been entertained by the trial Court as the suit is at the stage of hearing. Moreover, the Petitioners did not raise any such contention at the time when they filed their written statement or at the time when the issues were framed. 3 WP-4672.11.sxw 4 In that view of the matter no case for interference is made out. The above Writ Petition is accordingly dismissed. [R.M.SAVANT, J]