FA/1278/1984 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1278 of 1984 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MANUBHAI VADILAL SHAH - Appellant(s) Versus MUNICIPAL CORPORATION & 4 - Defendant(s) ========================================================= Appearance : MR GIRISH D BHATT for Appellant(s) : 1, None for Defendant(s) : 1 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 06/05/2008 ORAL JUDGMENT 1.0 This Appeal is directed against the judgment and decree passed in Civil Suit No. 3023 of 1979 dated 23.12.1983 by the learned City Civil Judge, Court No. 6, Ahmedabad whereby, the said suit was FA/1278/1984 2/4 JUDGMENT dismissed. 2.0 The facts in brief, as emerging from the record, are as under; 2.1 The appellant, original plaintiff, had filed a suit being Civil Suit No. 3023 of 1979 before the City Civil Court, Ahmedabad against the respondents, original defendants, praying for permanent injunction to remove the shops situated on the northern edge of the premises of the appellant. In the said suit, the respondents filed their written statement and prayed for the dismissal of the suit with costs. 2.2 The trial Court, after considering the entire evidence on record, dismissed the suit of the appellant – plaintiff vide the impugned judgment. Hence, this Appeal. 3. Heard Mr. G. D. Bhatt learned Advocate for the appellant and perused the documents on record. None appears on behalf of the respondents. From the record, it transpires that Final Plot No. 526 was managed by one of the brother's of the appellant named Chinubhai Vadilal prior to the partition. The said brother of the appellant had filed a suit being Civil Suit No. 197 of 1975 before the City Civil Court, Ahmedabad praying for permanent injunction with regard to the same subject matter of Civil Suit No. 3023 of 1979. The said suit, being Civil Suit No. 197 of 1975, was withdrawn by the brother of the FA/1278/1984 3/4 JUDGMENT appellant, with a liberty to file a fresh suit on the same cause of action. 4. Thereafter, the said brother of the appellant filed a suit being Civil Suit No. 1134 of 1975 for the same subject matter. However, the said suit was also unconditionally withdrawn by the brother of the appellant. 5. It is a matter of record that the suit being Civil Suit No. 1134 of 1975 was filed by Chinubhai Vadilal as a Manager and for and on behalf of his other four brothers, including the appellant – plaintiff, as they were the joint-holders of the said Plot at the relevant point of time. At this juncture, it would be relevant to note that in his cross- examination before the Court below, the appellant has admitted that in Civil Suit No. 1134 of 1975, a prayer qua restraining the respondent – Corporation from constructing any more shops was made and that when the same was agreed upon by the respondent – Corporation, the said suit, being Civil Suit No. 1134 of 1975, was withdrawn. 6. In other words, it could be said that at the relevant point of time the appellant had relinquished the prayer of removal of the shops in question, which had found place in the earlier suit being Civil Suit No. 197 of 1975. Therefore, the suit, i.e. Civil Suit No. 3023 of 1979, was barred by the provisions of Sub-rule (3) of Rule 1 of Order 23 of the C.P.C.. FA/1278/1984 4/4 JUDGMENT 7. The Court below has discussed every aspect in detail in Paragraph Nos. 22 & 23 of the impugned judgment. Considering the facts of the case, I am of the opinion that the Court below was completely justified in passing the impugned judgment. I am in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and hence, find no reasons to interfere in this Appeal. 8. For the foregoing reasons, the Appeals are dismissed. No order as to costs. [K. S. JHAVERI, J.] Pravin/*