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MCA/2078/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION-CLARIFICATION OF ORDER No. 2078 of 2011
In
SPECIAL
CIVIL APPLICATION No. 5537 of 2009
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CHANDULAL
NANJIBHAI DAMA - Applicant(s)
Versus
PAREKH
BROTHERS & 2 - Opponent(s)
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Appearance
:
MR
MEHUL S SHAH for
Applicant(s) : 1,MR SURESH M SHAH for Applicant(s) : 1,
MR DP
KINARIWALA for Opponent(s) : 1,
MR SP MAJMUDAR for Opponent(s) :
1,
MR PP MAJMUDAR for Opponent(s) : 1,
MR ASHISH M DAGLI for
Opponent(s) : 2,
MR VIVEK N MAPARA for Opponent(s) : 2,
MR PJ
KANABAR for Opponent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 06/09/2011
ORAL
ORDER
Heard
learned Advocate Mr.Suresh M.Shah for the applicant, learned Advocate
Mr.S.P.Majmudar for respondent NO.1 and learned Advocate Mr.Vivek
N.Mapara for respondent No.3.
2. The
present application is filed seeking clarification of order dated
04.05.2010, in particular para-3.1, which reads as under:-
“3.1 The impugned
order passed by the learned Principal Senior Civil Judge, Jamnagar
dated 14/04/2009 below application Exh.18 in Special Civil Suit
No.26 of 2009 is quashed and set aside and the Court below is
directed to hear and decide the Special Civil Suit No.26 and 2009
together with Special Civil Suit No.23 of 2009. The Court below is
also directed to give due priority to decide the said suits, as
expeditiously as possible, preferably within a period of six months
from today. Rule made absolute to the aforesaid extent.”
3. Learned
Advocate for the applicant submitted that after this order was
passed, the present applicant was impleaded as defendant in Special
Civil Suit No.26 of 2009 on 13.05.2011. It is thereafter that the
present applicant filed an application under Section 10 of Code of
Civil Procedure. That application is rejected only on the ground
that this Court by the aforesaid order has directed that both the
suits be heard together and decided by the learned Judge with due
priority, preferably within a period of six months from the date of
the order.
3.1 Learned
Advocate for the applicant submitted that on 04.05.2010, when this
Court passed an order, the Court never wanted to deprive the present
applicant of his right flowing from Section 10 of Code of Civil
Procedure.
4. Learned
Advocate for respondent No.2 submitted that as the plaintiff of
Special Civil Suit NO.26 of 2009 is also claiming right over the
subject matter of the suits, no prejudice will be caused to the
plaintiff of Special Civil Suit NO.23 of 2009.
5. The
question which falls for consideration of this Court is as to whether
on 04.05.2010, this Court wanted the present applicant to be deprived
of a right flowing in his favour from Section 10 of Code of Civil
Procedure and the answer is in negative.
6. That
being so, it is clarified that when the Court directed that both the
suits (Special Civil Suit No.26 of 2009 and Special Civil Suit No.23
of 2009) be heard together and decided by the learned Judge with due
priority, preferably within a period of 6 months from the date of
that order, the Court never wanted the present applicant to be
deprived of his right flowing from Section 10 of Code of Civil
Procedure.
7. The
application is disposed of with the aforesaid observations.
At
the request of learned Advocate Mr.Majmudar for respondent No.1, it
is clarified that this Court has not examined the question of
applicability of Section 10 of Code of Civil Procedure to the fact of
the case or merits of application Exh.47.
(Ravi
R.Tripathi, J.)
*Shitole
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