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CRA/106/2009 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 106 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
GUJARAT
STATE ROAD TRANSPORT CORPORATION & 1 - Applicants
Versus
THAKAR
JAYABEN GAURISHANKAR & 3 - Opponents
======================================
Appearance :
MR
ASHISH M DAGLI for the Applicants.
MR UTKARSH B JANI for the
Opponents.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 18/03/2010
ORAL
JUDGMENT
1. Rule.
Mr.Utkarsh Jani, learned advocate waives service of notice of Rule on
behalf of the Opponents.
2. Heard
Mr.Ashish Dagli, learned advocate appearing on behalf of the
applicants and Mr.Utkarsh Jani, learned advocate appearing on behalf
of the Opponents.
3. With
the consent of the learned advocates appearing on behalf of the
respective parties, the present Civil Revision Application is taken
up for final hearing today.
4. By
way of this Civil Revision Application under Section 115 of the Code
of Civil Procedure, the applicants have challenged the impugned order
passed by learned Principal Civil Judge, Harij dated 17/01/2008 below
application Exh-23 in Regular Civil Suit No.28 of 2008, by which,
learned Trial Court has rejected the said application which was
submitted by the applicants to dismiss the Suit on the ground that
the Suit is barred by res-judicata and it was requested to dismiss
the said Suit under Section 11 of the Code of Civil Procedure.
5. In
the facts and circumstances of the case, this Court is of the opinion
that even the issue as to whether the Suit is barred by res-judicata
or not, is required to be decided as preliminary issue and,
therefore, learned advocates appearing on behalf of the respective
parties have aggried that let the petitioners submit a fresh
appropriate application before the Trial Court raising preliminary
issue as to whether the Suit is barred by res-judicata or not and let
the same be treated as preliminary issue by the Trial Court and let
the Trial Court decide the same in accordance with law and on merits
within the time which may be decided by this Court and without in any
way being influenced by the impugned order passed by the learned
Principal Civil Judge, Harij dated 17/01/2008 below application
Exh-23 in Regular Civil Suit No.28 of 2008.
6. In
view of the above, the present Civil Revision Application is disposed
of. Let the applicants submit a fresh appropriate application before
the Trial Court raising preliminary issue as to whether the suit is
barred by res-judicata or not and the same be treated as preliminary
issue by the Trial Court. Such an application shall be submitted by
the applicants within a period of three weeks from today and the
respondents to file reply to the same within a period of three weeks
thereafter and the leaned Trial Court to decide the preliminary issue
in accordance with law and on merits within a period of three months
thereafter, without in any way being influenced by the impugned order
dated 17/01/2008 passed below application Exh-23 in Regular Civil
Suit No.28 of 2008.
With
this, the present Civil Revision Application is disposed of. Rule is
discharged. Ad-interim relief granted earlier stands vacated
forthwith.
Direct
service is permitted.
[M.R.SHAH,J]
*dipti
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