PATEL ENGINEERING COMPANY Vs. HASMUKHBHAI DHIRAJBHAI MEGHANI

JUDGEMENT

(1.) BY way of this petition under Article 227 of the Constitution of India, the petitioner original applicant of Ex. 31 in Regular Civil Suit No. 47 of 2002 pending in the court of learned Civil Judge, Junior division, Bagasara Vadiya, has prayed for appropriate writ, order and/or directions, for quashing and setting aside the order dtd. 11/4/2008 passed by the learned Principal Civil Judge, Bagasara Vadiya below application Ex. 31 in Regular Civil Suit No. 47 of 2002, by which the learned trial court has rejected the application Ex. 31 holding that the same is premature.

(2.) MR. MANGUKIYA, learned advocate appearing on behalf of the respondent has submitted that as such there is no substance in the application Ex. 31 and in fact there was a mistake on the part of the advocate that he appears on behalf of the defendant No. 1, however, having realised that the original defendant No. 1 has already expired and considering the report of the Bailiff, the respondent himself pointed out that the defendant No. 1 has expired. Therefore, there was no attempt on the part of the respondent herein to mislead the Court.

(3.) HAVING heard the learned advocate appearing on behalf of the respective parties and considering the nature of the application, it cannot be said that the application is premature. The said application submitted by the petitioner is an independent application. In the facts and circumstances of the case and without going into the further merits of the matter and without expressing any opinion on merits in favour of either party, the impugned order dtd. 11/4/2008 passed by the learned Principal Civil Judge, Bagasara Vadiya below application Ex. 31 in Regular Civil Suit No. 47 of 2002 is hereby quashed and set aside. The trial court is directed to decide the application Ex. 31, after hearing both the sides and considering the defence that may be raised by the respondent herein, in accordance with law and on merits, as expeditiously as possible. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs.