AJAY GOPALDAS KOTHARI Vs. JASUMATIBEN

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the judgment and order passed by the learned Judge, Small Cause Court No.9, Ahmedabad (hereinafter be referred to as "the Trial Court") below Exhibit 44 in H.R.P. Suit No.782 of 2014 dated 11.12.2017 filed by the applicants for rejecting the plaint on the ground mentioned in the application thereof, the applicants have preferred the present civil revision application under Section 115 of the Code of Civil Procedure, 1908 (hereinafter be referred to as "the CPC").

(2.) The brief facts of the present application is that the applicants are the original landlords of the suit premises named as "Gopal Bhuvan", herein the original tenant namely Chandulal Mathurdas Panchal was residing and who has subletted the suit premises in favour of one Ghanshyam Kantilal Panchal, who happens to be the son of opponent No.1 herein. That, the applicants have filed H.R.P. Suit No.17 of 1996 against the original tenant as well as sub-tenant which came to be decreed in favour of the applicants on 18.07.2008. Against that order, the original tenant and sub-tenant have preferred first appeals being Civil Appeal No.259 of 2008 and Civil Appeal No.260 of 2008. During the pendency thereof, original tenant has died and, therefore, Civil Appeal No.259 of 2008 was abated on 18.11.2017.

(3.) The opponent No.1 has filed affidavit-in-reply inter alia denied the contentions and has stated that she was not party in the previous suit and, therefore, the principle of res judicata will not be applicable in the present suit and the point raised in the application is misconceived. She has stated that no evidence qua her has been led in the earlier suit to declare her sub-tenant and, therefore, no question of conflicting decree would arise in the facts of the present case. She has stated that the application itself is not clearly stating that under which provision of law, the suit is required to be rejected. She has stated that during the course of the arguments, the advocate of the present applicant has requested the Trial Court to reject the plaint under Order 7 Rule XI on the ground of limitation and point of res judicata was not dealt with by the Trial Court as it was not raised and, therefore, the Trial Court has not committed any error in the impugned order. According to her version, the impugned order passed by the Trial Court is not liable to be interfered by this Court in exercise of its revisional jurisdiction. She has prayed to dismiss the present civil revision application.