1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 5025 OF 2008 (Shri Rambhau s/o Raoji Verulkar vs. Shri Shivhari s/o Pandhari Ghonge & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JULY 01, 2010. Heard Shri Sirpurkar, learned counsel for the petitioner, Shri Deshpande, learned counsel for respondent No.1 and Shri Jaiswal, learned AGP for respondents No. 2 & 3. The petitioner is defendant and he approaches the Court challenging the order of the trial Court rejecting his application under Order 7, Rule 11 of Civil Procedure Code. The perusal of impugned order shows that the non compliance with the provisions of Section 80 of Civil Procedure Code was urged as reason for rejection of plaint. The trial Court rejected that application on 11.09.2008. It appears that that order was sought to be reviewed again and that review has been rejected. The dates mentioned below both these orders appear to be mistaken because later on order passed below Exh. 24 clearly mentions that earlier Exh. 22 for same purpose has been rejected. Shri Sirpurkar, learned counsel contends that Government has also raised objection about non 2 compliance with Section 80 of C.P.C. and earlier in Regular Civil Suit No. 126 of 2007, the application for grant of permission to dispense with the notice was rejected on 19.11.2007. The subsequent application for dispensing with the period of statutory notice was filed on 26.11.2007 and without hearing any of the parties and even without noticing them, the trial Court appears to have granted it. He states that copy of that order is not on record. The learned AGP is supporting the arguments of Shri Sirpurkar, learned counsel. Shri Deshpande, learned counsel for respondent No. 1 points out that the order dispensing with statutory period has not been challenged in present writ petition. With the assistance of counsel, I have perused the papers. The applications at Exhs. 22 and 24 under Order 7, Rule 11 of C.P.C. were filed by the petitioner i.e. defendant No.3 in the suit. From the say given by the learned AGP before the trial Court on Exh. 22, it appears that the learned AGP has also supported the present petitioner. The AGP has stated that the statutory period was not over and the suit as filed was premature. I am not inclined to go into this issue at the instance of the petitioner who is only a defendant. It is open to defendants No. 1 & 2 to waive notice under Section 80. The question whether they have filed any written statement before the trial Court and the stand 3 taken by them in that written statement cannot be gone into by this Court because no such written statement is placed on record. Writ Petition is pending before this Court since 2008 and suit as filed is of the year 2007. In these circumstances, if defendants No. 1 & 2 in said Civil Suit have raised any objection on account of suit notice, trial Court shall consider the same in accordance with law uninfluenced by its orders passed below Exh. 22 and 24. With these observations, the present writ petition is disposed of. However, there shall be no order as to costs. JUDGE *GS.