JASUBEN MADHUSUDAN PANDYA Vs. MANHARLAL NARANDAS BHATT
HIGH COURT OF GUJARAT
JASUBEN MADHUSUDAN PANDYA
MANHARLAL NARANDAS BHATT
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(1.) Being aggrieved by the judgment and order passed by the Court of the Second Joint Civil Judge (S. D.) at Rajkot in Special Civil Suit No. 87 of 1971 below application Ex. 151 ordering to raise issue in the case as to res judicata and directing to hear the same as preliminary issue the petitioner has filed this Revision Application challenging the said order.
(2.) The facts of the case are that the petitioner who is the original plain- tiff instituted a civil suit being Special Civil Suit No. 87 of 1971 for specific performance of the agreement to sell in the Second Joint Civil Judge Senior Division at Rajkot. The respondents filed their Written Statement at Ex. 9. During the pendency of the suit original defendant No.2 filed an application at Ex. 66 dated 22-2-1976 and contended inter alia to dismiss the suit on the ground that the plaintiff had filed the suit for specific performance of the Con- tract but in Special Civil Suit No. 33 of 1974 filed by the present plaintiff against the Bank of Baroda and the present defendants Nos. 2 and 3 the Court has held that the said Satakhat is false bogus and got up and that the plaintiff had not paid the consideration of Rs. 50 0 nor the possession was handed over to him and therefore the matter directly and substantially in issue in this suit has been directly and substantially in issue in that former suit between the same parties litigating under the same title and the competent Court had finally decided that issue and therefore this suit also be dismissed. While deciding that application the then Joint Civil Judge Senior Division Rajkot held that the suit is not tenable as it is barred by res judicata. The Court instead of dismissing the suit directed the plaintiff i.e. the present petitioner to furnish information whether she had preferred an appeal against the judgment and decree of Special Civil Suit No. 33 of 1974. Thereafter on 18-4-1983 defendant No. 2 filed another application at Ex. 151 inter alio pointing out that the plaintiff had preferred an appeal from the judgment and decree in Special Civil Suit No. 33 of 1974 in the High Court of Gujarat and the same is dismissed and therefore this suit also be dismissed. The said appli- cation was opposed on behalf of the plaintiff. After hearing both the parties the learned Second Joint Civil Judge Senior Division Rajkot passed an order on 7-7-1983 that issue on the point of res judicata be added and it be decided as a preliminary issue. The issue ordered to be framed is as under: Whether the suit is barred by the principles of res judicata It was also ordered that the parties to bear their own costs.
(3.) The learned Counsel for the petitioner has urged as follows:
(1) That without there being any plea in the Written Statement and without there being any application for amendment of the Written Statement the Lower Court erred in directing to frame the present issue as aforesaid; and
(2) That issue as to res judicata cannot be heard or tried as a prelimi- nary issue as it is not a pure question of law only.;
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