VALABHAI AMAJIBHAI VANKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Mr.V.D. Parghi, learned counsel for the appellant and Mr.A.Y. Kogje, learned Assistant Government Pleader for the respondents State.

(2.) The appeal has been admitted for hearing the parties on the following substantial question of law;

(3.) The plaintiff filed Regular Civil Suit No.117 of 1984 challenging the order No.301/S.C./Terminate/84 dtd.17/1/1984. The suit was dismissed under Rule 8 of Order IX and an application under Rule 9 of Order IX was not filed by the plaintiff, instead, under legal advice, as it appears, he sent another notice under sec.80 of the Code of Civil Procedure to the respondents and as the respondents did not repair the damage, he filed present suit being Regular Civil Suit No.330 of 1985 in the court of learned Civil Judge (SD), Godhara seeking very same reliefs. The learned Civil Judge vide his order dtd.9/12/1995 dismissed the suit mainly on the ground that the second suit was not maintainable in view of the mandatory provisions contained in Rule 9 of Order IX of the Code of Civil Procedure. Being dissatisfied by the said judgment and decree, the plaintiff filed Regular Civil Appeal No.9 of 1986, but the same came to be dismissed on 5/3/1988. While dismissing the appeal, the learned first appellate court observed that though on merits the plaintiff's case was worth consideration, but the same being not maintainable under Rule 9 of Order IX, no relief can be granted to the plaintiff.