SCA/26111/2006 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 26111 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= AJITKUMAR MISHRIMAL BETALA - Petitioner(s) Versus SUNIL PULSE MILLS & 2 - Respondent(s) ========================================================= Appearance : MR YM THAKKAR for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 3. DS AFF.NOT FILED (N) for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 20/08/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, petitioner-original plaintiff has prayed for an appropriate writ, order or direction, quashing and setting aside the order SCA/26111/2006 2/4 JUDGMENT dated 30.9.2006 passed below Exh.95 in Regular Civil Suit No.75 of 2001 passed by the learned Additional Civil Judge, Dahod. 2. It is the case on behalf of the petitioner- plaintiff that in the suit of 2001 a written statement came to be filed by the defendant himself in the year 2001, and subsequently after period of five years, one another written statement came to be filed by the power of attorney holder of the defendant in the year 2006, and therefore, the petitioner submitted an application Exh.95 requesting the learned trial court not to accept and/or consider the second written statement filed by the defendant. On the said application, the learned trial court passed an order “now to be heard along with the suit”. 3. Being aggrieved and dissatisfied with the same, the petitioner has preferred present Special Civil Application under Article 227 of the Constitution of India. 4. Shri Y.M.Thakkar, learned advocate appearing on behalf of the petitioner has submitted that the issues are not framed till date, and on the basis of even second written statement, the issues can be framed by the learned trial court and therefore at least the application submitted by the petitioner below Exh.95 is required to be considered at least at the stage of framing the issues as at that stage the SCA/26111/2006 3/4 JUDGMENT learned trial court is required to consider the averments in the written statement. It is submitted that in stead of that the learned trial court has passed an order to consider the objection submitted below Exh.95 along with the suit and thereby great prejudice will be caused to the petitioner. 5. There is some substance in the submissions made by Shri Y.M.Thakkar, learned advocate appearing on behalf of the petitioner whether the second written statement is required to be considered or not is required to be considered by the learned trial court at least at the time when the issues are required to be framed. The said question cannot be kept till the suit is taken up for hearing. Under the circumstances, the impugned order passed by the learned trial court below Exh.95 passed in Regular Civil Suit No.75 of 2001 is modified to the extent that the learned trial court is directed to take an appropriate decision on the application Exh.95 at the stage of framing the issues and to take appropriate decision whether the second written statement is required to be considered or not. The aforesaid direction is issued on the statement made by the learned advocate appearing for the petitioner that as on today the issues are not framed. Rule is made absolute accordingly. Direct service is permitted. ( M.R. SHAH, J. ) SCA/26111/2006 4/4 JUDGMENT syed/