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Bombay High Court

SHRI BABU POMU RATHODversusSHRI SANTOSH DHARMU PAWAR AND ORS.

Decided
Disposal
Dismissed

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

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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