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SCA/2707/2008 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2707 of 2008
==========================================
GREEN
ROADWAYS - Petitioner(s)
Versus
ARVIND
MILLS LIMITED - Respondent(s)
==========================================
Appearance
:
MR YN
RAVANI for Petitioner(s) : 1,
MR DC DAVE for
Respondent(s) : 1,
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 26/08/2008
ORAL
ORDER
1. What
is challenged in the present Special Civil Application under Article
227 of the Constitution of India is the order dated 4th
December, 2007 passed by the learned Judge, City Civil Court, Court
No. 7, Ahmedabad below Exh. 9 in Summary Civil Suit No. 455/2006 by
which the learned City Civil Court has granted conditional leave to
defend to the petitioner-original defendant to defend the aforesaid
suit, being Summary Civil Suit No. 455/2006 on condition to deposit
50% of the suit amount. The said order was passed on 4th
December, 2007 and the present Special Civil Application came to be
filed on 8th January, 2008.
2. It
appears that during pendency of the present Special Civil Application
and on non compliance of the order dated 4th December,
2007, subsequently, a decree has been passed in the aforesaid suit.
If that be so and considering the decision of the Hon’ble Supreme
Court in the case of AJAY BANSAL vs. ANUP METHA & ORS
reported in AIR 2007 SC 909, the remedy available to the
petitioner is to prefer an appeal against the decree and therein
challenge the order refusing leave to defend in terms of Section 105
(1) of the Civil Procedure Code. Identical question came to be
considered by the Hon’ble Supreme Court in the aforesaid decision
wherein conditional leave to defend and/or refusing leave to defend
was challenged and thereafter a decree came to be passed and the
Hon’ble Supreme Court observed that the defendant in such a case can
also be left to appeal against the decree and therein challenge the
order refusing leave to defend in terms of Section 105(1) of the
Civil Procedure Code.
3. Considering
the the above, the present Special Civil Application is not
entertained in view of the changed circumstances and it will be open
for the petitioner to challenge the decree by way of an appeal before
an appropriate forum and shall also challenge the order as per the
decision of the Hon’ble Supreme Court in the case of AJAY BANSAL
vs. ANUP METHA & ORS (supra).
3. As
and when such an appeal is preferred, the same shall be consider by
the learned Court in accordance with law and on its own merits
without, in any way, being influenced by the present order as this
Court has not expressed any opinion on merits in favour of the
petitioner.
4. With
this, the present Special Civil Application is dismissed. Notice is
discharged.
(M.R.
SHAH, J.)
siji
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