IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.858 OF 2005. APPEAL NO.858 OF 2005. APPEAL NO.858 OF 2005. Shri Tanaji Pandurang Mohit & Ors ...Appellants. Versus. The Upper Collector, Satara, District Satara & Ors. ...Respondents. Shri R.G.Ketkar for the Appellants. Shri R.D.Suryawanshi for the Respondent Nos.3 to 6. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 07th February, 2008. : 07th February, 2008. : 07th February, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard the learned advocate appearing for the appellants and the learned advocate for the respondent Nos.3 to 6. 2. The second appeal is admitted on the following substantial questions of law: "(i) Whether the Courts below have properly interpreted the pursis dated 25th February, 2003 at Exhibit 33 in the Regular Civil Suit No.2 of 2003 whereunder the Appellants-original Plaintiffs stated that for the time being they were not pressing for the relief of declaration? (ii) Whether the Courts below have committed a serious error in dismissing the suit instituted by the Appellants by proceeding as if the Appellants have abandoned the : 2 : 2 : 2 : relief of declaration for ever and/or if they have relinquished the relief of injunction forever? (iii) Whether the learned trial Judge committed serious error in rejecting the plaint under Order VII, Rule 11 of the Code of Civil Procedure, 1908, without hearing the appellants on the ground that it does not disclose any cause of action? 3. As the first and second respondents were no longer parties to the suit when the impugned judgment and decree was passed by the trial Court, service of notice to the said respondents is dispensed with. Considering the facts and circumstances of the case, the appeal is taken up for final hearing. 4. The appellants are the original plaintiffs and the respondents are the original defendants. The suit was filed by the appellants for declaration that the respondent Nos.3 to 6 have no right, title or interest in respect of the suit property. Apart from the prayer for declaration, the appellants prayed that first and second respondents should be restrained from handing over possession of area of 77 Ares to the third to fifth respondents thereby dispossessing the appellants. : 3 : 3 : 3 : 5. An application was made on behalf of the third to sixth respondents praying that the names of the first and second respondents herein (first and second defendants) be deleted. The said application was allowed by order dated 05th March, 2003. On 25th February, 2003 the appellants had filed a pursis stating that for the time being the they were not pressing the prayer for declaration and they were intending to press the second prayer for injunction. On the same day on which the learned trial Judge ordered deletion of the name of the first and second respondents, the learned trial Judge rejected the plaint by holding that in view of the deletion of names of first and second respondents, the suit does not disclose any cause of action. In appeal the said judgment and decree has been confirmed. 6. The submission of the learned advocate for the appellants is that the trial Court has not relied upon the pursis filed by the appellants at Exhibit 33 while passing order of rejection of the plaint. He, however, pointed out that the Appellate Court has relied upon the said pursis. He submitted that the trial Court rejected the plaint on the same day on which names of the first and second respondents were deleted from the cause title of the suit. He submitted that without giving an opportunity to the appellants to challenge the order of deletion and/or an opportunity to amend the plaint, the : 4 : 4 : 4 : learned trial Judge proceeded to reject the plaint. His submission is that the pursis at Exhibit 33 does not amount to abandonment of prayer (a) of the suit for declaration and the appellants were entitled to revive the said prayer at a later stage. 7. The submission of the learned advocate for the third to sixth respondents is that the prayer for declaration was abandoned by the appellants and therefore considering the nature of the only remaining prayer i.e prayer (b), after deletion of the names of first and second respondents, the cause of action did not survive and therefore, the learned trial Judge was justified in rejecting the plaint. 8. I have given careful consideration to the submissions. The impugned order passed by the trial Court reads thus: "In view of order passed below Exhibit 24, it is held by this Court that revenue officials i.e Defendant Nos.1 and 2 are not necessary parties and it is ordered to delete their names from record of suit. In prayer, clause of suit plaintiff claimed relief against Defendant Nos.1 and 2 which is totally unwarranted. Suit does not disclose any cause of action and seems as misconceived and so I : 5 : 5 : 5 : hereby reject the plaint under Order 7 Rule 11 of Code of Civil Procedure as it does not disclose any cause of action and suit stands as decided on merit with the help of documents and arguments place before me by respective litigants. Bill of costs be drawn accordingly". The said order does not refer to the pursis at Exhibit 33. On plain reading of the said order it appears that as a consequence of deletion of the names of the first and second respondents the learned Judge held that the cause of action does not survive and therefore he proceeded to reject the plaint. The learned trial Judge has not at all examined the legal effect of the pursis at Exhibit 33. 9. Perusal of the order dated 05th March, 2003 passed below Exhibit 34 shows that the said application made by the third to sixth respondents for deletion of name of the first and second respondents was contested by the appellants. Instead of giving an opportunity to the appellants either to challenge the said order below Exhibit 24 or a reasonable time to consider their position as a consequence of order of deletion, the learned trial Judge has straightaway proceed to reject the plaint. Such approach was totally unwarranted. Even if the learned Judge was intending to pass order of : 6 : 6 : 6 : rejection of plaint, he ought to have granted a reasonable time to the appellants after order was passed on Exhibit 24. 10. The Appellate Court has considered the effect of pursis at Exhibit 33 and has come to the conclusion that the appellants have given up their prayer for declaration. The Appellate Court, therefore, held that as names of the first and second respondents were deleted, the other prayer in the suit will not survive and therefore, the Appellate Court confirmed the order of the trial Court. 11. The order of the trial Court deserves to be set aside only on the ground that the same was passed without giving an opportunity to the appellants to either challenge the order passed below Exhibit 24 and/ or to amend the plaint. Only on this ground, the orders impugned deserve to be quashed and set aside and the suit deserves to be restored. In so far as legal effect of pursis at Exhibit 33 is concerned, the trial Court will have to consider the effect of the said pursis at an appropriate stage. 12. If after remand, appropriate steps are not taken by the appellants within reasonable time, it will be always open for the third to sixth respondents to apply to the trial Court for rejection of the plaint. : 7 : 7 : 7 : 13. Hence, I pass the following order: (i) The impugned judgments and decrees are quashed and set aside and the Regular Civil Suit No.02 of 2003 is restored to the file of the trial Court. (ii) The trial Court will proceed with the suit in accordance with law in the light of observations made in this judgment. (iii) It is clarified that the question of the legal effect of pursis at Exhibit 33 is expressly kept open. (iv) The Second Appeal is allowed in above terms with no orders as to costs. (v) The parties and concerned courts to act upon an authenticated copy of this order. (vi) In view of the aforesaid order Civil Application No.1388 of 2005 does not survive and the same is rejected. Judge. Judge. Judge.