1.0 Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellant herein original plaintiff to quash and set aside the impugned judgment and decree passed by the learned trial Court learned 4th Additional Senior Civil Judge, Godhra dated 7.2.2011 passed in Regular Civil Suit No.325 of 2002 as well as impugned judgment and order passed by the learned Appellate Court learned Additional District Judge, Panchmahal @ Godhra dated 30.6.2011 passed in Regular Civil Appeal No.28 of 2011, by which the learned Appellate Court has dismissed the said appeal preferred by the appellant herein original plaintiff confirming the judgment and decree passed by the learned trial Court dismissing the suit.
2.0 As the present Second Appeal can be disposed of solely on the ground that both the Courts below have not framed any issue with respect to the jurisdiction of the Civil Court / trial Court to entertain the suit for the relief sought in the plaint and the suit is dismissed on the ground that Civil Court has no jurisdiction and therefore, the impugned judgment and order passed by the learned trial Court dismissing the suit confirmed by the learned Appellate Court cannot be sustained and same deserves to be quashed and set aside and the matter is to be remanded to the learned trial Court for deciding the same in accordance with law and on merits and after framing proper issues this Court is not narrating any facts to burden the judgment.
3.0 It is not in dispute that learned trial Court has dismissed the suit by observing that he has no jurisdiction to entertain the suit and grant the relief prayed in the suit. However, admittedly no issue has been framed by the learned trial Court whether the Civil Court has jurisdiction to entertain the suit for the relief prayed in the plaint or not. If the learned trial Court was of the opinion that he has no jurisdiction on the basis of the pleadings, at least he was required to frame the issue on that and thereafter he ought to have decided the same after giving an opportunity to all concerned. In the present case, the learned trial Court has dismissed the suit on the ground that he has no jurisdiction considering the oral/ written submission made by the learned advocate for the defendants, which is not permissible. The learned Appellate Court has not properly appreciated and considered the above and has mechanically and only in two paragraphs has dismissed the appeal preferred by the appellant hereinoriginal plaintiff, which also cannot be sustained. Learned advocate for the respondent no.3 herein main contesting respondent is not in a position to dispute the above. However, has requested that if this Court is inclined to quash and set aside the impugned judgment and order /decree passed by both the Courts below and the matter is to be remanded to the learned trial Court for deciding the same afresh in accordance with law and on merits, in that case, the learned trial Court may be directed to frame the proper issue with respect to the jurisdiction of the Civil Court and to decide the same as preliminary issue.
4.0 In view of the above and for the reasons stated above and without expressing anything on merits in favour of either parties and solely on the ground that learned trial Court has dismissed the suit for want of jurisdiction without framing any issue on that, the impugned judgment and decree passed by the learned trial Court learned 4th Additional Senior Civil Judge, Godhra dated 7.2.2011 passed in Regular Civil Suit No.325 of 2002 as well as impugned judgment and order passed by the learned Appellate Court learned Additional District Judge, Panchmahal @ Godhra dated 30.6.2011 passed in Regular Civil Appeal No.28 of 2011 are hereby quashed and set aside and the matter is remanded to the learned trial Court to decide and dispose of the suit afresh in accordance with law and on merits after framing proper issues inclusive of issue with respect to jurisdiction of the Civil Court. The aforesaid exercise shall be completed and suit to be disposed of at the earliest and preferably on or before 31.8.2013. All concerned are directed to cooperate the learned trial Court in early disposal of the suit within stipulated time as stated above. With this, present Second Appeal is allowed to the aforesaid extent. No costs. Registry is directed to send the writ of this order to the learned trial Court immediately.
“kaushik”
sd/ ( M. R. Shah, J. )