2017 (2) TMI 1338

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....2. Rule. Rule made returnable forthwith. 2 wp6165.16 3. The petitioner/original plaintiff takes exception to the order passed by the trial Court by which the application (Exhibit No.27) filed by him is rejected. The plaintiff has filed the civil suit praying for decree for specific performance of contract and for other reliefs. In this civil suit, the defendant filed an application (Exhibit ....

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....s. U.S. Rayudu and another reported in 2016(5) ALL MR 446(SC), has submitted that once the application under Order VII Rule 11 of the 3 wp6165.16 Code of Civil Procedure is filed, a duty is cast on the Court to decide that application first before proceeding further with the matter. It is argued that there is no error of jurisdiction while passing the impugned order and therefore, it would not be ....

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.... then the plaint shall be rejected and it would be permissible for the plaintiff to file fresh plaint including the proposed amendment in the pleadings. Thus, in my view, it will not serve any purpose by not considering the application (Exhibit No.22) before considering the application (Exhibit 4 wp6165.16 No.18). Of course the application (Exhibit No.22) will have to be considered on its own meri....

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....but has failed to exercise the jurisdiction vested in him by refusing to consider the application (Exhibit No.22) before considering the application (Exhibit No.18). The impugned order is unsustainable and is required to be set aside. 7. Hence, the following order : (i) The impugned order is set aside. (ii) The application (Exhibit No.27) filed by the petitioner is allowed. (iii) The l....