JUDGMENT - VAZIFDAR S.J., J.:---The above summons for judgment appeared before the learned Single Judge who, by a common order dated 22nd July, 2003, opining that they may be more advantageously heard by a larger Bench, placed the matters under Rule 28 of the Bombay High Court (Original Side) Rules, before the Honble Chief Justice for making an appropriate orders for constituting a larger Bench. The Honble Chief Justice by an order dated 14th November, 2003 constituted a larger Bench to which one of us (S.J. Vazifdar, J.) was a party. As the earlier Full Bench was unable to hear the matters, the present Bench was constituted to hear the reference.

2. The earlier Full Bench on 25th November, 2003, framed, for convenience, the following four questions of law :

(i) Whether the provisions of Order XXIII, Rule 1 of the Code of Civil Procedure, 1908 can be invoked while exercising powers under Order XXXVII of the Code of Civil Procedure and deciding a summons for judgment/application for leave to defend a summary suit instituted under Order XXXVII, Rule 1(2) thereof?

(ii) Whether third option of abandoning a part of the claim in a summary suit is available to a plaintiff at the hearing of t

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