SCA/10351/2007 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10351 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= JYOTSNABEN RAMESHCHANDRA JASANI AND ANOTHER Versus AVANISH CHIMANLAL MANIAR AND OTHERS ========================================================= Appearance : MR VIMAL M PATEL for the Petitioners MR TEJAS M BAROT for Respondent No.1 DS AFF.NOT FILED (R) for Respondent(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 18/02/2008 ORAL JUDGMENT 1. Heard the learned advocates for the parties. 2. The petitioners are original defendants. They have challenged an order dated 11.4.2007 passed by the lower Appellate Court below Exhs.23 and 8 in SCA/10351/2007 2/3 JUDGMENT Civil Misc. Appeal No.22 of 2007. It is a case of the petitioners that Appeal from Order filed by the respondents-original plaintiffs was not maintainable before the District Court and, that therefore, they raised preliminary objections regarding the jurisdiction of the District Court under application Exh.8. He also filed application Exh.23 requesting the Court to hear and decide the question of jurisdiction as a preliminary issue. These applications were considered by the learned Judge under his impugned order dated 11.4.2007. It was concluded that the question of jurisdiction shall be decided while hearing the appeal finally. 3. When the petitioners had raised the issue of jurisdiction of the Appellate Court and had also tried to place the material in support of such objections, in the facts of the present case, it was desirable that the Appellate Court should have considered this question at the outset. Reserving the issue for being disposed of finally while deciding the appeal was, in the facts of the case, not appropriate. 4. Under the circumstances, without expressing any opinion on the contentions of the petitioners as well as the respondents, regarding the jurisdiction of the District Court to hear the appeal of the respondents, the learned Judge is requested to decide this question as a preliminary issue separating out the same from the main appeal. SCA/10351/2007 3/3 JUDGMENT Consecutively, the impugned order dated 11.4.2007 is quashed. The learned Judge shall hear the application Exh.8 separately and give his opinion thereon as expeditiously as possible and subject to co-operation from both the sides within three months from the date of receipt of the copy of this order. 5. With these directions, the petition is disposed of in the above terms. Rule is made absolute accordingly. No order as to cost. (AKIL KURESHI, J.) omkar