Gujarat High Court
Maganbhai vs Chhotabhai on 18 April, 2011
Gujarat High Court Case Information System
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SCA/17213/2005 2/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 17213 of 2005
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MAGANBHAI
MANGALBHAI SOLANKI - Petitioner(s)
Versus
CHHOTABHAI
FAKIRBHAI SOLANKI & 2 - Respondent(s)
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Appearance
:
MR
HM PARIKH for
Petitioner No(s).: 1.
None
for Respondent No(s).: 1,
2,3.
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CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
Date
: 23/08/2005
ORAL
ORDER
1. By filing instant petition under Article 227 of the Constitution, the petitioner seeks to challenge the order dated 26.10.2004 recorded below Ex.44 in RCS No.21 of 2001 by the learned Civil Judge (JD), Mehmadabad, District Kheda by which the application filed by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure seeking amendment in the suit came to be rejected.
2. Having heard Mr. HM Parikh, learned advocate of the petitioner and having perused the impugned order, it is seen that the petitioner has filed the suit for permanent injunction simplicitor and in that suit he sought the amendment claiming the relief of specific performance of contract against the respondents. Therefore, according to this court, the learned trial Judge has very rightly rejected the application on the ground that the nature of the suit would be changed if the amendment is allowed.
3. Besides this, according to this court, the petitioner can very well file substantive suit seeking the relief of specific performance of contract against the respondents which is not barred as res-judicata would not operate in view of the fact that the present suit is filed seeking relief of permanent injunction only.
4. In aforesaid view of the matter, according to this court, no illegality or infirmity much less jurisdictional error has been committed by the learned trial Judge in passing the impugned order requiring interference of this Court in exercise of powers under Article 227 of the Constitution of India.
5. Seen in the above context, the petition lacks merit and deserves to be rejected at the inception.
6. For the foregoing reasons, the petition fails and accordingly it is rejected at the threshold.
7. However, it would be open for the petitioner to file substantive fresh suit seeking the relief of specific performance of contract against the respondents and if such a suit is filed, the same shall be decided in accordance with law and strictly on its own merits.
(A.M. Kapadia, J.) ...
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