PRATAPSINGH NARSINGRAO PUPALAversusSAMAR VIJAY PUPALA AND ORS.

2026:BHC-AS:37112


            Diksha Rane                                              14 I A 3368 2019.docx



                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION
                               INTERIM APPLICATION NO.3368/2019
                                                   IN
                            CIVIL REVISION APPLICATION NO.800/2013
            PRATAPSINGH NARSINGRAO PUPALA                          ..APPLICANT
                                                                   (ORG. REPS.NO.1)
            IN THE MATTER BETWEEN
            SAMAR VIJAY PUPALA AND ANR.                            ..APPLICANTS
                            VS.
            PRATAPSINGH NARSINGRAO PUPALA & ORS...RESPONDENTS


                 Adv. Prathmesh Bhargude i/b. Adv. Kavita A. Shah for
                 applicant.

                 Adv. R. L. Nichani for respondent nos. 1 and 2.

                                              CORAM         : ARUN R. PEDNEKER, J.

                                              DATE          : 3rd SEPTEMBER, 2026.

            Per Court :
            1.            Heard learned counsel for the parties.

            2.            Learned counsel for the applicant seeks recall of the order
            dated 25th July, 2019. Learned counsel for the applicant submits that
            he was the respondent in the matter and engaged an advocate,
            however, the advocate was not present on the date when the order

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was passed. It is also stated in the affidavit that the Registry had
informed the advocate, however, the advocate was unable to place
the matter for listing before the Court and failed to remain present.
Thereafter, the present application is filed for recall of the order
dated         25th July, 2019, whereby this Court after hearing the
applicant, disposed of the Civil Revision Application. In essence, the
present application seeks recall or review of the order dated 25 th July
2019.

3.            Perused the order dated 25th July, 2019 and also the
application for recall of order.

4.            This Court is not satisfied with the explanation offered in
application for seeking condonation of 99 days delay in filing the
application for recall. As per the affidavit filed by the applicant, they
were informed by the Registry about the listing of the matter on the
given date. However, they failed to appear. Although the applicant
earlier appeared in the matter, the vakalatnama was not filed on
record. Even if the applicant had failed to notice the matter on the
cause list when the advocate was informed of the matter by the
Registry it was incumbant upon the advocate to ascertain the status
of the case. Be that as it may, I shall consider the matter on merits as
well.

5.            The brief facts of the matter are that the plaintiff nos.1 to 4
filed the suit for eviction against the tenant. During the pendency of
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the proceedings, the tenant surrendered the licensed premises to
plaintiff no.2. As such a prayer is made by plaintiff no.2 for dismissal
of the suit as nothing survived in the proceedings, since the tenant
had surrendered the premises. This Court, by order dated 25 th July,
2019, has noticed that the tenant has surrendered the premises to a
co-owner and that nothing would survive in a suit for ejectment
against the tenant. If there is any inter se dispute between the co-
owners, the same was required to be resolved in the proper civil
proceeding. Accordingly, the Civil Revision Application was disposed
of by holding that the adjudication of the suit has been rendered
infructuous and accordingly, the suit was disposed of.

6.            Learned counsel appearing for the applicant submits that an
application under Order VII, Rule 11 cannot be filed by one of the
plaintiffs for rejection of the suit and that this Court, in the earlier
round of proceedings, had particularly formulated an issue by order
dated 7th October, 2006 inter se between the parties as under:-

              “Whether plaintiff no.2 proves that he had taken possession
              of the suit premises from the defendants for himself and on
              behalf of other plaintiffs and that the suit has become
              infructuous as alleged?”

7.            Learned counsel for the applicant submits that an
application under Order VII Rule 11 cannot be filed by the plaintiff
for dismissal of the suit. One of the plaintiffs have taken possession
of the suit premises from the tenant and since it was not possible for

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plaintiff no.2 to withdraw the suit, an application under Order VII
Rule 11 was filed by him for dismissal of the plaint.

8.            Learned counsel for the plaintiff submits that the plaint can
be dismissed only upon examination of the plaint and the documents
supporting the plaint, and no subsequent fact or order could have
been looked into by the Court. He submits that, in view of his
absence on 25th July, 2019, he was not able to apprise this Court of
the legal position, and accordingly, the order came to be passed on
25th July, 2019. He, thus, prays to recall the order dated 25 th July,
2019 and list the matter for hearing on merits.

9.            The Supreme Court in various judgments, particularly in the
case of Shipping Corporation of India vs. Machado Brothers and Ors. 1
has held that if the proceedings are rendered infructuous then the
Civil Court has a power to put an end to the litigation. Particularly
paragraph no.13 is noted below of the judgment of the Supreme
Court:

              “13.     The learned counsel relied on Order 7 Rule 11,
              Order 12 Rule 6, Order 15 Rules 1 and 3 and Order 23 Rule
              1 of CPC to point out that apart from Section 151, of CPC
              even under those provisions of the Code there is a duty cast
              on the trial court to put an end to a litigation if the same
              had become infructuous. In the instant case, the learned
              Counsel pointed out that there was only one agency
              agreement and in exercise of the right conferred by the
              termination clause in the said agreement the appellant had
              terminated the contract of agency of the respondent as far
1
    MANU/SC/0276/2004
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              back as on 23.2.1995, but by virtue of the interim order
              granted by the courts below the appellant had to continue
              the same much against the interest of the appellant. Be that
              as it may, the learned counsel submits that a fresh cause of
              action had arisen which required the said agency agreement
              again to be terminated. Hence a notice of termination dated
              23.8.2001 was issued nearly six years after the first letter of
              termination which in fact and in law substituted the first
              letter of termination. Consequent to which the first letter of
              termination became non existent and consequently the suit
              filed on that basis became infructuous because the cause of
              action, if any, which gave rise to the first suit disappeared.
              Hence, the courts below ought to have accepted the
              application of the appellant for the dismissal of the suit. The
              learned counsel also contended both the courts below have
              not given any finding as to the effect of the second
              termination notice vis-a-vis the existence of cause of action
              to continue the first suit and proceeded erroneously on the
              ground that dismissal of said suit would make the injunction
              ineffective, as if the interim order in a proceeding can
              survive after the disposal of the main matter or that the
              main matter can be kept pending to continue the interim
              order.

10.           Similarly, in the case of Union of India and Ors. Vs.
Maheshkumar Gordhandas Garodia2 this Court has particularly
observed in paragraph no.19. Paragraph no.19 is noted below for
ready reference:

              “19.     In the present case, however it cannot be
              contended that the Applicants have any other alternate
              remedy for seeking dismissal of the suit, which has been
              rendered infructuous. As observed above, provisions of
              Order VII Rule 11 of the Code do not provide any remedy
              for the Applicants to seek dismissal of the suit on account of
              happening of a supervening event. Order VII Rule 11 of the
2
 MANU/MH/2564/2026
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              Code contemplates rejection of plaint when the same does
              not disclose cause of action. The provision does not apply
              when the plaint discloses cause of action when lodged but
              the said cause of action comes to an end during pendency of
              the suit. Therefore, power of the Court to throw out such
              infructuous litigation must necessarily be traced to inherent
              jurisdiction under Section 151 of the Code. As observed
              above, I am supported in my view by the judgment of the
              Apex Court in Shipping Corporation of India Limited
              (supra).”

11.           This Court in Maheshkumar Gordhandas Garodia (supra)
has also relied upon the judgment in the case of Shipping
Corporation of India Limited (supra) and held that if the cause of
action has expired and the suit has become infructuous, the same has
to be disposed of accordingly. This Court similarly has exercised its
power and disposed of this suit by holding that the suit is rendered
infructuous. The suit is against the tenant for eviction and the tenant
having surrendered the premises, the inter se dispute between the
co-owners cannot be adjudicated in a tenancy proceedings and
accordingly, this Court has disposed the suit with liberty to the
parties to take such steps as are available in law to adjudicate their
inter se rights. It is brought to my notice that the Civil Suit for
partition is pending between the parties. However, learned counsel
appearing for the applicant submits that the present property is not
one of the property mentioned in the suit property. This Court has
not found any merit in recalling the order dated 25th July, 2019.

12.           The present application stands disposed of.

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                      13.             If such proceedings are filed to decide inter se rights
                      between the parties qua the suit property, the same to be decided in
                      accordance with law. I have not expressed anything on merits of such
                      proceedings.

                                                                      [ ARUN R. PEDNEKER, J.]




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Signed by: Diksha Rane
Designation: PS To Honourable Judge
Date: 09/09/2026 13:41:15