SCA/12790/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12790 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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? ========================================================= NEELKAMAL REALITIES & COMPLEX PVT LTD - Petitioner(s) Versus MAHESH CHANDULAL PATEL & 1 - Respondent(s) ========================================================= Appearance : MR KAMAL TRIVEDI, SR.ADVOCATE WITH MR AJAY R MEHTA for Petitioner(s) MR SUNIT SHAH WITH MR NV GANDHI for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 19/11/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner – original defendant has prayed for an appropriate writ, direction and/or order quashing and setting aside the impugned order dated 26.08.2008 passed by the learned SCA/12790/2008 2/4 JUDGMENT Judge of the Small Causes Court No.7, Ahmedabad passed below Exh.53 and Exh.55 in H.R.P. Suit No.24 of 2007 by which the learned Trial Court has allowed Exh.55 and partly allowed Exh.53 and re-cast the issues in following manner: (1)Whether the defendant is entitled to take up contention that entire F.P.No.582/1 admeasuring 2056 Sq.yards land together with the super structure is not let out, but only the super structure is let out contrary to the stand of the defendant's predecessor in title that entire F.P.No.582/1 together with the super structure has been let out? (2)If yes, then whether the defendant proves that the plaintiff was let out only the super structure and not the open land? (3)Can the defendant take a stand contrary to the attornment notice and sale deed and claim that only super structure is let out and not the compound? (4)Whether the suit is barred by principles of res-judicata? (5)Whether the plaintiff is entitled for injunction as prayed for? (6)What order and decree? 2. Having heard Mr.Kamal Trivedi, learned Senior Advocate with Mr.Ajay Mehta, learned Advocate appearing on behalf of the petitioner – defendant and SCA/12790/2008 3/4 JUDGMENT Mr.Sunit Shah, learned Advocate with Mr.N.V.Gandhi, learned Advocate appearing on behalf of the respondent – original plaintiff and having considered the nature of controversy in the suit; allegations and counter allegations in the plaint as well as in the written statement and earlier order, it appears to the Court that one issue i.e. tenancy with respect to the super structure as well as land bearing F.P.No.582/1 admeasuring 2056 Sq.Yeards to be proved by the plaintiff is required to be added and issue No.4 is to be re-cast. Under the circumstances, the issues in the Suit will be as under : (1)Whether the plaintiff proves that they are legal tenants of the suit premises consisting of land bearing F.P.No.582/1 ad- measuring 2056 Sq.Yards and structure constructed thereupon as described in para 1 of the plaint? (2)Whether the defendant is entitled to take up contention that entire F.P.No.582/1 admeasuring 2056 Sq.yards land together with the super structure is not let out, but only the super structure is let out contrary to the stand of the defendant's predecessor in title that entire F.P.No.582/1 together with the super structure has been let out? (3)If yes, then whether the defendant proves that the plaintiff was let out only the super structure and not the open land? SCA/12790/2008 4/4 JUDGMENT (4)Can the defendant take a stand contrary to the attornment notice and sale deed and claim that only super structure is let out and not the compound? (5)Whether the plaintiff proves that issues relating to what is let out is barred by res-judicata? (6)Whether the Suit is barred by principles of res-judicata? (7)Whether the plaintiff is entitled for injunction as prayed for? (8)What order and decree? 3. In view of above, the impugned order passed by the learned trial Court is modified to the aforesaid extend. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. [M.R.Shah,J.] satish