In Shakriben Lavjibhai Gohel (Decd.) (Supra)

In Shakriben Lavjibhai Gohel (Decd.) (Supra)

The court can exercise the power of return, of the plaint for representation after complying with the requirement of Sub Section (1) of the Section 80 of the Code of Civil Procedure. This could be done only at the time of granting leave.

In such circumstances, referred to above, I am constrained to observe that the plaint should have been returned to the plaintiff at the relevant point of time itself when the injunction application was not pressed.

In any suit against Railways Union of India is necessary Party and suit by pleading General Manager alone is not maintainable. The State of Kerela V/S The General Manager Southern Railways Madras AIR 1976 SC 2538.

Govt. of Kerala & Ors……. Appellants

Versus

Sudhir Kumar Sharma & Ors…… Respondents

In the aforesaid circumstances, we hold that the trial court had wrongly rejected the applications filled by the appellants under Order VII Rule 11 of the Code of Civil Procedure. The trial court ought to have heard and decided the application filed under Section 80 (2) of the Code of Civil Procedure before hearing the applications under Order VII Rule 11 of the Code of Civil Procedure.

As a result of the above discussion, the appeal is allowed. The impugned judgment delivered by the High Court confirming the order of the Trial Court dated 30th September, 2001 is quashed and set aside. The order of the trial court rejecting applications under Order VII Rule 11 of the Code of Civil Procedure is also quashed and set aside. It is directed that the trial court shall first of all decide the application filed by Respondent No. 1 under Section 80 (2) of the Code of Civil Procedure and only after final disposal of the said application, the applications filed by the appellants under Order VII Rule 11 of the Code of Civil Procedure shall be decided.

Dhian Singh Sobha Singh and another Appellants

Versus

Union of India, Respondent.

It is relevant to note that neither was this point taken by the respondent in the written statement with it filed in answer to the appellants claim nor was any issue framed in that behalf by the Trial Court and this may justify the inference that the objection under S.80 had been waived. The point appears to have been taken for the first time before the High Court which negatived the claim of the appellants for the appreciated value of the said trucks.

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