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2009 DIGILAW 565 (KAR)

S. R. Venkatareddy v. K. S. Shariff

2009-07-30

B.SREENIVASE GOWDA

body2009
Judgment :- (This Miscellaneous First Appeal is filed under Order 43 Rule 1(a) CPC against the order dated 29.11.08 passed by the XIV Addl. City Civil Judge, Bangalore (CCH-28) in OS No. 884/03 on IA No.4 at Annexure-A and etc.) This appeal is listed for orders for acceptance of counsel’s submission on office objections regarding maintainability of the appeal. 2. I have heard the learned counsel appearing for the appellant. 3. I have perused the impugned order and found that the trial court by order dated 22.8.08 posted the case to hear on the following point: “Whether several causes of action against several defendants joined in accordance with law?” and after hearing the parties on the said point, it has passed the impugned order holding that the composite suit against defendant Nos.1`to 9 is clearly barred under Order 2 Rule 3 CPC and joinder of several cause of action against several defendants in this composite suit will embarrass and it will definitely delay the trial. Further, it will cause inconvenience to the Court. Therefore, it is necessary to direct the plaintiff to file separate suits against each of the defendants. Hence, the trial court, by exercising the power under Order 2 Rule 3 of CPC, held that it is necessary to return the plaint to the plaintiff with a direction to file separate suits against each of the defendants. It is against this order the appeal is filed. 4. Though the trial court used the language as return of plaint, but it is not an order one passed under Order 7 Rule 10 CPC. On the other hand, it is an order passed under Order 2 Rule 3 thereby permitting the plaintiff to file separate suits against several causes of action and it cannot be construed as an order passed under Order 7 Rule 10 for return of plaint. If it is an order passed under Order 7 Rule 10 for return of plaint, then certainly appeal lies under Order 43 Rule 1 (a) and no appeal lies under the said provision against the order passed under Order 2 Rule 3. 5. In that view of the matter, the office objection that the appeal is not maintainable is upheld. The learned counsel’s submission that the appeal is maintainable is rejected. 6. 5. In that view of the matter, the office objection that the appeal is not maintainable is upheld. The learned counsel’s submission that the appeal is maintainable is rejected. 6. It is needless to observe that the appellant is always at liberty to challenge the impugned order in an appropriate proceedings.