Visnhubhai Naranbhai Patel and Others vs Suresh Kumar Kundanlal Lalchandani and Others

M.R. Shah, J.—By way of this petition under Articles 226 and 227 of the Constitution of India the Petitioners have prayed for an appropriate writ, order or direction to quash and set aside the impugned order dated 28/10/2011 below Exh. 17 in Special Civil Suit No. 77/2009 passed by the learned Second Additional Senior Civil Judge, Ahmedabad (Rural) Mirzapur by which the learned trial Court has allowed the said application submitted by the original Defendants under Order 7 Rule 11 of the CPC and has dismissed Special Civil Suit No. 77/2009 preferred by the Petitioners-original Plaintiffs.

Ms. Trusha Patel, learned advocate appearing on behalf of the Respondents-original Defendants has raised a preliminary objection with respect to entertainability and maintainability of the present petition under Articles 226 and 227 of the Constitution of India against the impugned order by submitting that against the impugned order regular Civil Appeal will be maintainable under Order 41 of the Code of Civil Procedure. Without prejudice to the aforesaid rights and contentions she has made a statement at the bar so far as the disputed document dated 30/12/2008 (page 86 of the compilation) is concerned, under instructions from the concerned Respondents, that the said document is an unilateral declaration by the Respondents, which shall not bind the Petitioners. It is submitted that if the aforesaid declaration is made and the aforesaid statement is recorded, in that case, there shall not be any further cause of action in favour of the original Plaintiffs.

Shri G.M. Amin, learned advocate appearing on behalf of the Petitioners-original Plaintiffs has requested to dispose of the aforesaid Special Civil Application recording the aforesaid statement on behalf of the Respondents-original Defendants and make suitable observation.

Having heard the learned advocates appearing on behalf of the respective parties and in view of the stand taken by the Respondents, now the larger question with respect to entertainability and/or maintainability of the present petition under Articles 226 and 227 of the Constitution of India against the impugned order is kept open. However, it is observed that the petition under Article 227 of the Constitution of India shall be maintainable. However, it may be a different question whether in view of the other statutory remedy available petition under Article 227 of the Constitution of India is required to be entertained or not. There is a distinction between entertainability and maintainability of the petition in view of the availability of alternative statutory remedy available.

In view of the aforesaid statement made by Ms Trusha Patel, learned advocate appearing on behalf of the Respondents-original Defendants recorded hereinabove, the present Special Civil Application can be disposed of. As stated by the learned advocate appearing on behalf of the Respondents-original Defendants, declaration dated 30/12/2008 (page 86 of the compilation) shall not bind the Petitioners-original Plaintiffs and/or shall not affect any of the rights of the Petitioners-original Plaintiffs to claim contrary to what is stated in the declaration dated 30/12/2008. As and when any dispute arises the same may be dealt with in accordance with law on its own merits without binding the Petitioners-original Plaintiffs.

With this clarification and observation, the present Special Civil Application is disposed of.