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FA/3130/2008 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3130 of 2008
With
CIVIL
APPLICATION No. 8426 of 2008
In
FIRST APPEAL No. 3130 of 2008
=========================================================
BHAVANDAS
FODARAM BHAVSAR & 5 - Appellant(s)
Versus
SWASTIK
DEVELOPMENT CORPORATION & 2 - Defendant(s)
=========================================================
Appearance
:
MR
NEHAL R JOSHI for
Appellant(s) : 1 - 6.
MR VIMAL M PATEL for Defendant(s) : 1,
None
for Defendant(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 01/08/2008
ORAL
ORDER
By
way of this appeal, the appellants-original plaintiffs have
challenged the judgment and order dated 1/8/2007 passed by the City
Civil Court, Ahmedabad in Civil Suit No.3297 of 2003 whereby the
City Civil Court, Ahmedabad has allowed the suit.
The
plaintiffs had filed Suit No.3297 of 2003 in the City Civil Court at
Ahmedabad for injunction and declaration to the effect that the
plaintiffs are the tenement holders/allottees of the suit property.
The said suit was filed by affixing Court fee stamp of Rs.300/-.
The plaintiff’s mother had also filed Civil Suit No.2982 of 1990
with regard to the same prayer in respect of same property which had
been dismissed in the year 1996. Even the Restoration Application
has been dismissed in the year 2002. The defendants therefore,
filed application Exh.58 to reject the plaint for non-payment of
required court fee stamp and to reject the plaint as it is barred by
law. The City Civil Court vide order dated 1/8/2007 rejected the
plaint. It is against the said order the present appeal has been
filed.
The
Trial Court has considered the fact that earlier suit for the very
same prayer has been dismissed and even the restoration application
came to be dismissed. The second suit has been filed by heirs of
Kalavatiben. Therefore, same persons claimed identical relief. The
Trial Court has found that the suit was clearly barred under Rule 9
Order 9 of the CPC. I am in complete agreement with the reasonings
adopted and findings arrived at by the Trial Court.
The
learned counsel for the appellants has relied upon the judgment of
Madras High Court in the case of Kuppuswami alias Mannakatti and
others vs. Nagarathina Gounder and others, reported in 2000 AIHC
1563. On the facts of the case, the said decision is not
applicable.
In
view of the above, the appeal is dismissed. No order as to costs.
Since the appeal is dismissed, Civil Application does not survive
and is disposed of accordingly.
(K.S.Jhaveri,
J.)
(ila)
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