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2012 DIGILAW 991 (BOM)

Joaquim L. Dias v. Baptist Coelho

2012-05-11

A.P.LAVANDE

body2012
Judgment : 1. Heard Ms. Shirodkar holding for Mr. Sudin Usgaonkar, Advocate for the applicants and Mr. Kankonkar, Advocate for respondent No.1. None appears on behalf of respondents No.2 and 3, though served. 2. Rule. By consent heard forthwith. 3. By this application, the applicants seek review of the order dated 27th July, 2011, passed in Appeal from Order No.31 of 2011, dismissing the same on the ground that the plaint could not have been rejected qua some of the defendants. 4. The applicants are defendants No.2 and 3 in Regular Civil Suit No.40/2008/A, filed by respondent No.1, against the applicants. In the said suit, the present applicants filed an application under Order VII, Rule 11(a) and (d) of Code of Civil Procedure for rejection of the plaint. The Trial Court, by an order dated 15th September, 2009, allowed the application and consequently, dismissed the suit, with costs. 5. Original plaintiff/respondent No.1 filed a Regular Civil Suit No.134/2009, before the District Court, North Goa, at Panaji, which was made over to the District Judge-2, North Goa, Panaji. The lower Appellate Court allowed the appeal and dismissed the application, thereby setting aside the order passed by the Trial Court. 6. Against the order passed by the lower Appellate Court, the applicants herein initially preferred second appeal which was permitted to be converted into the Appeal from Order. 7. By order dated 27th July, 2011, this Court dismissed the appeal on the ground that the rejection of the plaint has to be against all the defendants and it cannot be rejected qua some of the defendants. 8. Ms. Shirodkar, learned Counsel appearing for the applicants, placing reliance upon a Judgment of the Apex Court in the case of I.T.C. Limited vs. Debts Recovery Appellate Tribunal and ors., (1998) 2 SCC 70 , has submitted that the suit could be dismissed qua one of the defendants. Learned Counsel further submitted that the order dated 27th July, 2011, passed by this Court, is contrary to the aforesaid Judgment of the Apex Court, and deserves to be set aside. 9. Mr. Kankonkar for respondent No.1 concedes that the impugned order deserves to be reviewed and the appeal from order No. 31/2011 needs to be restored, since there are some other grounds which are urged in the appeal were not considered. 10. In I.T.C. Limited vs. Debts Recovery Appellate Tribunal and ors. 9. Mr. Kankonkar for respondent No.1 concedes that the impugned order deserves to be reviewed and the appeal from order No. 31/2011 needs to be restored, since there are some other grounds which are urged in the appeal were not considered. 10. In I.T.C. Limited vs. Debts Recovery Appellate Tribunal and ors. (supra), the Apex Court has held that a plaint can be rejected qua one of the defendants if no cause of action has been shown against him. The aforesaid Judgment was not brought to the notice of this Court when the order dated 27th July, 2011 was passed. Had the Judgment been referred, surely the order dated 27th July, 2011 would not have been passed. 11. Be that as it may, in view of the clear ratio laid down by this Court in I.T.C. Limited vs. Debts Recovery Appellate Tribunal and ors. (supra), order dated 27th July, 2011 is liable to be set aside and is, hereby, set aside and Appeal from Order No.31/2011 is restored. Since the other points urged in the appeal were not considered while dismissing the appeal from order, the same deserves to be heard afresh. 12. In the result, therefore, order dated 27th July, 2011 dismissing the Appeal from Order No.31/2011 is set aside and the appeal is restored. The same be placed for admission before appropriate Bench. No order as to costs.