ARVINDKUMAR RATILAL PUNATAR Vs. YOGESHKUMAR HARILAL SHAH JAMNAGAR

JUDGEMENT

(1.) This revision application by the original defendant-petitioner under Sec. 115, CPC arises from the order of the 2nd Joint Civil Judge, (J.D.) at Jamnagar dated 30.6.1998 in Regular Civil Suit No. 1175/85 below Ex. 105 under which the plaintiff-respondent has been permitted to withdraw the suit with a liberty to file fresh suit if and when necessity arises in respect of the suit property.

(2.) The plaintiff-respondent filed Regular Civil Suit No. 1175/85 for declaration and permanent injunction. It is prayed that the court may declare that the defendants, their agents, servants, power of attorney holders or anybody are not entitled to recover the rent as well as to have/take the possession of any portion of the suit property known as "Hem Nivas" situated opposite Lai Baug, near Jain Derasar in Jamnagar city, without taking the present plaintiff with them. Prayer of permanent injunction has been made in the matter to restrain the defendants, their agents, servant, men, power of attorney holders or anybody not to recover the rent or to take possession of the above mentioned property from the remaining tenants without keeping with them the present plaintiff. The defendant No. 1, petitioner No. 1 in this revision-application, namely Arvindkumar Ratilal Punatar has also filed special civil suit No. 20/90 against the plaintiff-respondent and many other persons in respect of the subject matter of "Hem Nivas". In the suit aforestated, the plaintiff-respondent is the defendant No. 8. From the facts of special civil suit No. 20/90 it transpires that heirs of deceased Chhotalal Hemchand have sold their rights and share of "Hem Nivas" to the plaintiff-respondent. In the civil suit No. 20/90, the plaintiffs therein are claiming right of pre-emption. In the suit, out of which this revision application arises, the plaintiff-respondent has closed the evidence and defendants have declared that they do not want to produce any evidence. So the suit has reached to the stage of final arguments and at this stage, the application for withdrawal of the suit with a liberty to file fresh one has been filed by the plaintiff-respondent. Prayer has been made for withdrawal of the civil suit out of which this revision application in the factual matrix that in the special civil suit No. 20/90 the subject matter of dispute is the same property. In the suit aforestated, the defendant has accepted that the sale of suit property by the heirs of deceased Chhotalal Hemchand to the plaintiff-respondent on the basis of that factual aspect they claim the right of pre-emption. In the special civil suit. No. 20/90, the evidence of the plaintiff has been started and as the present suit is only for limited purpose it is meaningless to proceed further with the suit. For his rights he will give legal fight in the special civil suit No. 20/90. This application has been opposed by the defendant- petitioners but under the impugned order the same has been granted.

(3.) Learned counsel for the petitioners contended that the learned Trial Court has committed serious error of jurisdiction in granting liberty to the plaintiff-respondent to file fresh suit if and when necessity arises in respect of the suit property. So far as permitting withdrawal of the suit by the learned Trial Court, learned counsel for the petitioners has no objection.