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SCA/17213/2005 2/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 17213 of 2005
==============================================================
MAGANBHAI
MANGALBHAI SOLANKI - Petitioner(s)
Versus
CHHOTABHAI
FAKIRBHAI SOLANKI & 2 - Respondent(s)
==============================================================
Appearance
:
MR
HM PARIKH for
Petitioner No(s).: 1.
None
for Respondent No(s).: 1,
2,3.
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CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
Date
: 23/08/2005
ORAL
ORDER
1. By filing
instant petition under Article 227 of the Constitution,
the petitioner seeks to challenge the order
dated 26.10.2004 recorded below Ex.44 in RCS No.21 of 2001 by the
learned Civil Judge (JD), Mehmadabad,
District Kheda by which
the application filed by the petitioner under
Order 6 Rule 17 of the Code of Civil Procedure seeking amendment in
the suit came to be rejected.
2. Having
heard Mr. HM Parikh, learned advocate of
the petitioner and having perused the
impugned order, it is seen that the petitioner
has filed the suit for permanent injunction
simplicitor and in that suit he sought the amendment claiming the
relief of specific performance
of contract against the
respondents. Therefore,
according to this court, the learned trial
Judge has very
rightly rejected the application
on the ground that the nature
of the suit would be changed if the
amendment is allowed.
3. Besides
this, according to this court, the
petitioner can very well file substantive
suit seeking the relief of specific performance
of contract against the respondents
which is not barred as res-judicata would not operate in view of
the fact that the present suit is filed
seeking relief of
permanent injunction only.
4. In
aforesaid view of the matter, according
to this court, no illegality or infirmity
much less jurisdictional error has been
committed by the learned trial Judge
in passing the impugned order requiring interference
of this Court in exercise
of powers under
Article 227 of the Constitution of India.
5. Seen in
the above context, the petition lacks merit
and deserves to
be rejected at the inception.
6. For the
foregoing reasons, the petition
fails and accordingly it is
rejected at the threshold.
7. However,
it would be open for the petitioner
to file substantive
fresh suit seeking the
relief of specific
performance of contract
against the
respondents and if such a suit is filed,
the same shall be decided in accordance
with law and strictly on its own merits.
(A.M. Kapadia,
J.)
…
(karan)
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