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 3rd SEPTEMBER, 2026 2026:BHC-AS:37112 Diksha Rane 14 I A 3368 2019.docx 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 25th 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 3rd SEPTEMBER, 2026 Diksha Rane 14 I A 3368 2019.docx 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 25th 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 3rd SEPTEMBER, 2026 Diksha Rane 14 I A 3368 2019.docx 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 25th 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 3rd SEPTEMBER, 2026 Diksha Rane 14 I A 3368 2019.docx 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 2MANU/MH/2564/2026 3rd SEPTEMBER, 2026 Diksha Rane 14 I A 3368 2019.docx 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. Page 6 of 7 3rd SEPTEMBER, 2026 Diksha Rane 14 I A 3368 2019.docx 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.] 3rd SEPTEMBER, 2026 Signed by: Diksha Rane Designation: PS To Honourable Judge Date: 09/09/2026 13:41:15