MAGANBHAI MOHANBHAI SOLANKI Vs. HARGOVINDDAS MANSUKHBHAI TAILOR

JUDGEMENT

(1.) Present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of seeking following reliefs:-

(2.) The case of the petitioner is that the petitioner- original plaintiff as well as the respondent No.1 were tenants of Madhusudan Chimanlal Thakkar. In the year 1989, the petitioner purchased the disputed property, i.e. shop bearing Census No.A-2/87, Tika No.3/1, Survey No.108, through registered sale document on 23.2.1987 and C/SCA/6970/2019 ORDER became rightful owner of the property and consequently, the respondent No.2 became the petitioner's tenant now. In the sale deed also, the original owners have stated that one Hargovindas Mansukhlal Tailor is their only tenant left. The respondent No.2 stated to have not paid rent for 90 months to the petitioner. As a result of this, the petitioner sent a demand notice to the respondent No.1 on 25.7.1994. The respondent No.1 neither paid any rent to the petitioner nor responded to the notice, which has resulted into filing of Rent Suit No.417 of 1994 on 7.9.1994. It is the case of the petitioner- plaintiff that money order dated 9.8.1984 was sent but the petitioner refused to accept the same. In the proceedings, total 13 issues have been framed for consideration, vide Exh.27 and thereafter, after pretty long period, the respondent No.2 submitted an application at Exh.97 for deletion of issue Nos.1,2,3,6 and 7 and in the said application, it has also been sought to amend the issue No.5 by adding two sub-issues. To this application given by the respondent No.2, the present petitioner filed counter application as well as the reply at Exh.98 and by common order dated 17.11.2018, the applications came to be partly allowed. According to the petitioner, an error is apparent on record that on 10.1.2019, a review application came to be filed under the provisions of the Civil Procedure Code, seeking review of the order dated 17.11.2018. However, learned Judge relying upon the judgment of Rent Suit No.1184 of 1976 passed an order rejecting the review application vide order dated 18.2.2019. Both the orders at Exh.98 and Exh.98 as well as the order at Exh.100 are made the subject matter of the present petition.

(3.) Learned advocate Mr. Parth Bhatt appearing for the petitioner has vehemently contended that passing of an order allowing the issue to be deleted has got practically the effect of infractuating the suit itself filed by the plaintiff. It has further been submitted that the C/SCA/6970/2019 ORDER present petitioner is not a party to the suit. As a result of this, the judgment of earlier proceedings would not bind the petitioner in any manner. Principle of Res Judicata will not have a passage to come in the right of the present petitioner. It has further been submitted that the issue Nos.6 and 7 are very material issues and without adjudicating the same, effective judgment cannot be passed by learned Court in favour of the petitioner. For the purpose of canvassing this, learned advocate has drawn the attention of the Court to some of the averments contained in the plaint and thereby contended that these issue Nos.6 and 7 are very material to the controversy and the same ought not to have been allowed to be deleted by learned Trial Judge. If these issues are permitted to be deleted, then whole suit would become meaningless. As a result of this, the petition deserves to be granted. It has further been contended that deletion of the issue will have effect of depriving the petitioner from a chance to establish the very controversy, which is involved in the proceedings. Hence, in view of this circumstance, it is desirable in the interest of justice to set aside the impugned orders. No other submissions have been made.