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S.B. CIVIL WRIT PETITION NO.183/2009.
Karan Chand Jain & Anr.
Vs.
Madhukar Doshi & Anr.
Date of Order : 10th August 2009.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. Suresh Shrimali, for the petitioners.
Mr. S.D. Purohit, for the respondents.
...
BY THE COURT:
This writ petition filed by this plaintiffs in a suit for
declaration and recovery of money, said to be bearing No.
120/2007 and pending in the Court of Additional District Judge
(Fast Track) No.4, Jodhpur, questioning the order dated
27.05.2008 as passed by the learned Trial Court allowing the
application filed by the defendants-respondents under Order
VI Rule 16 of the Code of Civil Procedure (‘CPC’) and striking
out certain averment in the plaint, was entertained by this
Court on 20.02.2009; and, by way of interim order, operation
and effect of the impugned order was stayed.
An application (IA No. 11011/2009) under Article 226 (3)
of the Constitution of India has been moved by the
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respondents seeking vacation of the stay order and the matter
has been placed on board for consideration of the said
application.
However, during the course of submissions, learned
counsel Mr. S.D. Purohit appearing for the respondents
submitted on instructions that the defendants-respondents do
not want to press on the application as moved by them under
Order VI Rule 16 CPC whereupon the impugned order was
passed by the learned Trial Court. An application has also
been moved on behalf of the respondents supported by the
affidavit of the respondent No.1 seeking not to press on the
application dated 16.04.2007 as moved under Order VI Rule
16 CPC before the Trial Court. The learned counsel
appearing for the plaintiffs-petitioners has no objection if the
defendants-respondents do not press on their application
under Order VI Rule 16 CPC.
Looking to the nature of the suit and the pleadings of the
parties, it appears appropriate that the propositions so stated
and submissions so made be accepted; and the defendants-
respondents be permitted not to press on their application
under Order VI Rule 16 CPC. When the said application is not
pressed by the defendants-respondents, the obvious result
would be that the impugned order dated 27.05.2008 in so far it
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relates to the said application under Order VI Rule 16 CPC
would stand annulled and the questioned averments shall
remain on record.
In view of the submissions so made, it is also obvious
that no purpose would be served in keeping this writ petition
pending any further.
Accordingly, while accepting the propositions as stated
by the parties, the defendants-respondents are permitted not
to press on their application under Order VI Rule 16 CPC; the
said application is dismissed as not pressed; and the
impugned order dated 27.05.2008, in so far it relates to the
said application stands annulled. No further orders are
required on the application under Article 226 (3) of the
Constitution of India that also stands disposed of.
To put the record straight, the writ petition stands
allowed to the extent indicated above without any order as to
costs.
(DINESH MAHESHWARI), J.
//Mohan//