AMBALAL KALIDAS PATEL Vs. NAVNITBHAI HARMANBHAI PATEL

JUDGEMENT

(1.) At the outset I may state that this matter has been argued by both the counsel for the parties as if this Court is sitting as a trial Court or the appellate Court over the judgment of the trial Court and that too as if this Court has to decide finally whether the suit out of which this revision arises is barred under the provisions of Order 2, Rule 2 of the Civil Procedure Code or not. But the substance of the matter is only where under the impugned order the learned trial Court has declined the prayer of the defendant-petitioner to frame issue of law where the suit out of which this revision application arises is barred by provisions of Order 2, Rule 2 of Civil Procedure code and to decide it as a preliminary issue.

(2.) The application filed by defendant-petitioner at ex.22 came to be rejected under the impugned order. This application admittedly has been filed by defendant-petitioner before filing by him the written statement in the Civil Suit. It is also not in dispute that before this application came to be decided by the learned trial Court under the impugned order, the defendant-petitioner has filed his written statements in the suit.

(3.) The learned counsel for the respondent raised a preliminary objection regarding maintainability of this revision application. It is firstly contended that this is not a case decided. The second contention has been raised that the Court has not committed any material irregularity in exercising its jurisdiction in passing of the impugned order. Third contention has been raised that it is not the case where the learned trial Court has declined to frame issue of law, re.: bar of suit under Order 2, Rule 2 of Civil Procedure Code, but only it has declined to frame this issue of law at this stage and to treat it and decide it as preliminary issue. In his submission in case this order is allowed to stand, it will not occasion failure of justice or will not cause any irreparable injury to the petitioner. Fourthly, it is submitted that it is a mixed question of law and fact whether the suit is barred by provisions of Order 2, Rule 2 of Civil Procedure Code. Carrying this contention further, the learned counsel for the respondents submits that in the previous suit very specifically liberty has been reserved by respondents to file suit for specific performance.