UKA SAVDAS KOLI Vs. AGARIYA NOORMAHMAD GANI

JUDGEMENT

(1.) THE present second appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants herein - original defendants to quash and set aside the impugned judgement and order dated 19/09/2002 passed by learned 2nd Joint District Judge, Veraval in Regular Civil Appeal No.50 of 1999 (Old No.185 of 1991), by which, learned Appellate Court has allowed the said appeal preferred by the respondent No.1 herein - original plaintiff by quashing and setting aside the judgement and decree dated 17/08/1991 passed by learned 2nd Joint Civil Judge (J.D.), Veraval below Exh.43 in Regular Civil Suit No.221 of 1981, by which, learned Trial Court has dismissed the suit solely on the ground that the suit is barred by res-judicata.

(2.) THAT respondent No.1 herein - original plaintiff instituted Regular Civil Suit No.221 of 1981 against the appellants herein - original defendants in the court of learned 2nd Joint Civil Judge (J.D.), Veraval for recovery of possession with respect to suit property i.e. eastern side of the suit property bearing survey No.746. That in the said suit, the appellants herein - original defendants appeared and submitted application Exh.43 by submitting that the suit is barred by res-judicata in view of the earlier suit filed between the same parties being Regular Civil Suit No.352 of 1971. That learned Trial Court allowed the said application and dismissed the suit vide order dated 17/08/1991 solely on the ground that in view of the decision in earlier Regular Civil Suit No.352 of 1971 the suit is barred by res-judicata. Being aggrieved by and dissatisfied with the order dated 17/08/1991 passed by learned Trial Court below Exh.43 in Regular Civil Suit No.221 of 1981 in dismissing the suit on the ground that the suit is barred by res-judicata, the original plaintiff preferred Regular Civil Appeal No.185 of 1991, which was subsequently renumbered as Regular Civil Appeal No.50 of 1999 and the learned Appellate Court considered the fact that the dispute in both the suits were with respect to different sides of the suit property, learned Appellate Court has allowed the said appeal by quashing and setting aside the judgement and decree passed by learned Trial Court dismissing the suit on the ground that the suit is barred by res-judicata and directed learned Trial Court to decide and dispose of the said suit in accordance with law and on merits. Being aggrieved by and dissatisfied with the judgement and order dated 19/09/2002 passed by learned Appellate Court in Regular Civil Appeal No.50 of 1999, the appellants herein - heirs and legal representatives of original defendant No.1 have preferred the present second appeal under section 100 of the Code of Civil Procedure.

(3.) CONSIDERING the decision of the Hon'ble Supreme Court in the case of Indian Oil Corporation Limited V/s. SPS Engineering Limited reported in (2011)3 SCC 507, learned Trial Court was required to decide and dispose of the suit on all issues. Learned Trial Court ought to have decided the suit on merits rather than dismissing the same only on issue of res-judicata. Considering the aforesaid facts and circumstances of the case, learned Appellate Court has not committed any error in quashing and setting aside the order passed by learned Trial Court and remanding the matter to the learned Trial Court for deciding the same afresh on all issues and to pronounce the judgement on all issues.