Bombay High Court
SHRI BABU POMU RATHODversusSHRI SANTOSH DHARMU PAWAR AND ORS.
- Decided
- Disposal
- Dismissed
- Bench
- GAURI GODSE
Holding
The order dismissing the miscellaneous appeal is revisable under Section 115 CPC, but the writ jurisdiction under Article 227 is not appropriate to interfere.
Summary
The petition was filed by the original defendant (original plaintiff) to challenge the dismissal of a miscellaneous civil appeal by the District Court and the trial court's rejection of an application under Section 9A of the CPC read with Order VII Rule 11. The petitioner argued that the application for rejection of the plaint on maintainability grounds should be revisable and that the District Court erred in holding the appeal non‑maintainable and in recording merits. The Court observed that a rejection under Order VII Rule 11 is indeed revisable under Section 115 of the CPC, rendering the appeal maintainable on that ground. However, the Court found no justification to invoke its writ jurisdiction under Article 227 to interfere, as the order is amenable to ordinary revision. Consequently, the writ petition was dismissed, with the observation that the suit will proceed to the evidentiary stage and the parties' substantive contentions remain open for determination.
Issues considered
- Whether the order dismissing the miscellaneous civil appeal is revisable under Section 115 of the CPC.
- Whether the writ jurisdiction under Article 227 is appropriate to challenge the dismissal of the appeal.
- Whether the rejection of the application under Section 9A and Order VII Rule 11 is appealable.
Legislation cited
- Code of Civil Procedure, 1908 — s. 115, 9A, Order VII Rule 11
Subjects
- civil procedure
- Section 9A
- Order VII Rule 11
- Section 115
- writ jurisdiction
- Article 227
- miscellaneous appeal
- revisability
Judgment
2026:BHC-AS:8909
13-WP-11009-2016.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11009 OF 2016
Swapnil
Shri Babu Pomu Rathod. … Petitioner
Vs.
Shri Santosh Dharmu Pawar
and Ors.. … Respondents
Ms. Neha r. Parte i/b. Mr. Suresh M. Sabrad for the petitioner.
CORAM : GAURI GODSE, J.
DATE : 20th February 2026
ORDER :
1. This writ petition is filed by original defendant no.1 to
challenge the order dismissing their miscellaneous appeal by
the District Court and the order passed by the trial court
rejecting their application at Exhibit ‘32’.
2. Learned counsel for the applicants submits that the
applicants have filed an application under Section 9A of the
Civil Procedure Code, 1908 (“CPC”) read with Order VII Rule
11 of the CPC for rejection of the plaint on the ground that
the suit was not maintainable. She submits that the
application was rejected and the defendants filed an
miscellaneous civil appeal before the District Court. The
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District court dismissed the appeal as not maintainable on
the ground that the rejection of the application under Order
VII Rule 11 would not be appealable. She further submits
that the District Court has recorded the findings on merits of
the application at Exhibit ‘32’. Hence, this writ petition would
require consideration to interfere with the impugned order.
3. I have perused the papers of the petition. The rejection
of the application under Order VII Rule 11 of the CPC is
revisable under Section 115 of the CPC. The defendants
initially filed an appeal which was not maintainable. Since,
the impugned order is revisable, I do not see any reason to
invoke the writ jurisdiction under Article 227 of the
Constitution of India to interfere with the impugned order.
4. Learned counsel for the petitioner submits that the
petitioner has filed the written statement and suit has
proceeded further and is at the stage of recording evidence.
It is therefore clarified that the objections raised by the
petitioner in application at Exhibit ‘32’ were at the preliminary
stage. Hence, the observations recorded in the impugned
orders are restricted to the decision on the application under
Section 9A and Order VII Rule 11 of the CPC. Hence, all the
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rival contentions of the parties are kept open to be decided in
the suit at an appropriate stage.
5. The writ petition is rejected subject to the aforesaid
observations.
[GAURI GODSE, J.]
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