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AO/282/2010 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 282 of 2010
With
CIVIL
APPLICATION No. 10015 of 2010
In
APPEAL FROM ORDER No. 282 of 2010
=========================================================
KOKILABEN
W/O GUNVANTBHAI PATEL - Appellant(s)
Versus
ATUL
JANAKBHAI PATEL L.R. OF JANAKBHAI J PATEL & 4 - Respondent(s)
=========================================================
Appearance
:
MR RG
CHAUDHARY for Appellant(s).
MR
MB GANDHI for
Respondent(s) : 1,
None for Respondent(s) : 2 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 17/01/2011
COMMON
ORAL ORDER
By
way of present Appeal From Order, the appellants have inter alia
prayed for quashing and setting aside the impugned order dated 30th
July 2010 passed by the learned Judge, City Civil Court, Ahmedabad,
below Exhs.6 and 7 in Civil Suit No.901 of 2009.
Heard
learned advocates for the respective parties.
Without
entering into merits of the matter and having
considered the contentions raised by the learned advocates for the
respective parties, averments made in the Appeal From Order and the
documentary evidence produced on record, it transpires that
the trial Court has wrongly rejected the said applications only on
the ground of suppression of material facts by the appellants as
well as on the principle of Res Judicata. In fact and in reality,
prima facie the First
Appeal in question i.e. First
Appeal No.1749 of 2001 is pending before this Court. Hence,
the impugned order passed by the trial Court is required to be
quashed and set aside since the trial Court has not decided the said
applications on merits but only on technical grounds they have been
rejected.
In
view of aforesaid, present petition is hereby partly allowed. The
impugned order passed by the trial Court is hereby quashed and set
aside since the Notice of Motion is not decided on merits. The
matter is remanded to the trial Court. The trial Court is directed
to examine and decide the Notice of Motion at Exhs.6-7 afresh on
merits.
In
view of disposal of the Appeal From Order, the Civil Application
for stay does not survive and the same stands disposed of
accordingly.
(K.S.
Jhaveri, J)
Aakar
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