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SCA/18164/2006 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 18164 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL Sd/-
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Sd/-
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? NO
2
To be
referred to the Reporter or not ? NO
3
Whether
their Lordships wish to see the fair copy of the judgment ? NO
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 ? NO
5
Whether
it is to be circulated to the civil judge ? NO
=========================================================
M.K.PATEL
& CO. & 6 - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
MR
KG SUKHWANI for
Petitioner(s) : 1 - 7.
MR NIRAJ SONI, AGP. for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 26/08/2011
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE R.M.CHHAYA)
1. The
petitioners by way of the present petition under Article 227 of the
Constitution of India has challenged the order dated 20.10.2005
passed by Civil Judge (S.D.), Vadodara in Special Civil Suit No. 269
of 1990 and has prayed for the following reliefs in paragraph 9 :
“9.
a. Your Lordships will be pleased to admit the present petition.
b. Your
Lordships will be pleased to issue a writ of mandamus or writ in the
nature of mandamus or any other appropriate writ order or direction
for quashing and setting aside the Order dated 20.10.2005 passed by
Civil Judge (S.D) at Vadodara in Special Civil Suit No. 269 of 1990.
Pending
the admission, hearing and final disposal of the petition, by way
of interim relief, your lordships will be pleased to issue a writ of
mandamus or writ in the nature of mandamus or any other appropriate
writ order or direction, staying and implementing the order dated
20.10.2005 passed by the Civil Judge (S.D) in Special Civil Suit
No.269 of 1990.
Your
Lordships will be pleased to issue a writ of mandamus or writ in the
nature of mandamus or any other appropriate writ order or direction
directing the stay of further proceedings of Special Civil Suit No.
269 of 1990 pending before the Hon’ble Civil Judge (S.D) at
Vadodara.
e. Any
other and further reliefs that may be deemed just and expedient in
view of the facts and circumstances of the case be granted.”
2. The
facts arising out of this petition are as under :
3. That
the respondents herein filed Special Civil Suit No. 269 of 1990
against the present petitioners for recovery of Rs.38,03,248/- on
account of breach of contract arising from agreement No. B-2/9 of
1976-1977. The petitioners appeared before the Trial Court and filed
their written statement and by an application (Exh. 25) prayed for
stay of the said suit under section 10 of the Code of Civil
Procedure, on the ground that the judgment and decree passed in
Special Civil Suit No. 135 of 1981 was the subject matter of First
Appeals No. 1866 of 1985 preferred by the State of Gujarat and First
Appeal No. 1867 of 1985 preferred by the petitioners. It was
contended that the said two appeals have been admitted by this Court
and are pending for final adjudication, hence the proceedings of
Special Civil Suit No. 269 of 1990 deserve to be stayed.
4. The
Trial Court vide order dated 20.10.2000 dismissed the said
application mainly on the ground that the facts and claims of the
suit and the earlier suit were quite different from each other and
even parties were not identical.
5. Being
aggrieved by the same, the petitioners-original defendants preferred
this petition which was admitted by this Hon’ble Court by order dated
7.3.2007 in paragraph no.5 of the said order, this Court observed as
under :
“5. Meanwhile
the learned trial Judge is requested to hear Civil Suit No. 269 of
1990. However, the learned trial Judge may not pass the final decree
till this Court passes any order. As soon as the arguments are
completed, the learned Judge may report to this Court.”
6. In
view of the fact, that we have dismissed both the appeals i.e. First
Appeals No. 1866 of 1985 and 1867 of 1985 by a separate judgment
today. Nothing further requires to be done in the present matter. The
petition is therefore disposed of and the Trial Court is directed to
proceed with Special Civil Suit No. 269 of 1990 in accordance with
law and decide the same on its own merits.
7. In
the result, Rule is discharged. However, in the facts and
circumstances of the case, there shall be no order as to costs.
Sd/-
(Jayant
Patel, J.)
Sd/-
(R.M.
Chhaya, J.)
M.M.BHATT
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