1. The present second appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants herein - original defendants to quash and set aside the impugned judgement and order dated 19/09/2002 passed by learned 2nd Joint District Judge, Veraval in Regular Civil Appeal No.50 of 1999 (Old No.185 of 1991), by which, learned Appellate Court has allowed the said appeal preferred by the respondent No.1 herein - original plaintiff by quashing and setting aside the judgement and decree dated 17/08/1991 passed by learned 2nd Joint Civil Judge (J.D.), Veraval below Exh.43 in Regular Civil Suit No.221 of 1981, by which, learned Trial Court has dismissed the suit solely on the ground that the suit is barred by res-judicata.
2. That respondent No.1 herein - original plaintiff instituted Regular Civil Suit No.221 of 1981 against the appellants herein - original defendants in the court of learned 2nd Joint Civil Judge (J.D.), Veraval for recovery of possession with respect to suit property i.e. eastern side of the suit property bearing survey No.746. That in the said suit, the appellants herein - original defendants appeared and submitted application Exh.43 by submitting that the suit is barred by res-judicata in view of the earlier suit filed between the same parties being Regular Civil Suit No.352 of 1971. That learned Trial Court allowed the said application and dismissed the suit vide order dated 17/08/1991 solely on the ground that in view of the decision in earlier Regular Civil Suit No.352 of 1971 the suit is barred by res-judicata.
Being aggrieved by and dissatisfied with the order dated 17/08/1991 passed by learned Trial Court below Exh.43 in Regular Civil Suit No.221 of 1981 in dismissing the suit on the ground that the suit is barred by res-judicata, the original plaintiff preferred Regular Civil Appeal No.185 of 1991, which was subsequently renumbered as Regular Civil Appeal No.50 of 1999 and the learned Appellate Court considered the fact that the dispute in both the suits were with respect to different sides of the suit property, learned Appellate Court has allowed the said appeal by quashing and setting aside the judgement and decree passed by learned Trial Court dismissing the suit on the ground that the suit is barred by res-judicata and directed learned Trial Court to decide and dispose of the said suit in accordance with law and on merits.
Being aggrieved by and dissatisfied with the judgement and order dated 19/09/2002 passed by learned Appellate Court in Regular Civil Appeal No.50 of 1999, the appellants herein - heirs and legal representatives of original defendant No.1 have preferred the present second appeal under section 100 of the Code of Civil Procedure.
3. Heard Mr.R.C.Kakkad, learned advocate appearing on behalf of the appellants herein – heirs of original defendant No.1 and Mr.Hashim Qureshi, learned advocate appearing on behalf of respondent No.1 herein - original plaintiff and considered the impugned judgement and orders passed by both the Courts below. It is not in dispute that learned Trial Court dismissed the suit vide order dated 17/08/1991 passed below Exh.43 in Regular Civil Suit No.221 of 1981 by holding that in view of the decision in earlier Regular Civil Suit No.352 of 1971, the present Regular Civil Suit No.221 of 1981 is barred by res-judicata. It is an admitted position that learned Trial Court did not decide other issues on merits. However, considering the fact that the dispute in earlier Regular Civil Suit No.352 of 1971 was with respect to western side of land bearing survey No.746 and relief sought in the present Regular Civil Suit No.221 of 1981 was with respect to eastern side of the land bearing survey No.746 and nature of reliefs sought in both the suits are different and, therefore, learned Appellate Court has held that learned Trial Court has materially erred in dismissing the suit on the ground that the suit is barred by res-judicata.
4. Mr.R.C.Kakkad, learned advocate appearing on behalf of the appellants herein is not in a position to point out anything and to satisfy the Court how the subsequent suit being Regular Civil Suit No.221 of 1981, which was with respect to eastern side of land bearing survey No.746 can be said to be barred by res-judicata in view of the earlier suit, which was filed with respect to western side of land bearing survey No.746.
In view of the above, Mr.Kakkad, learned advocate appearing on behalf of the appellants herein is not in a position to satisfy the Court how the impugned judgement and order passed by learned Appellate Court can be said to be contrary to the evidence on record and perverse. It is required to be noted that learned Trial Court dismissed the suit by passing the order below Exh.43 solely on the ground that the suit is barred by res-judicata and did not decide other issues on merits.
5. Considering the decision of the Hon'ble Supreme Court in the case of Indian Oil Corporation Limited V/s. SPS Engineering Limited reported in (2011)3 SCC 507, learned Trial Court was required to decide and dispose of the suit on all issues. Learned Trial Court ought to have decided the suit on merits rather than dismissing the same only on issue of res-judicata. Considering the aforesaid facts and circumstances of the case, learned Appellate Court has not committed any error in quashing and setting aside the order passed by learned Trial Court and remanding the matter to the learned Trial Court for deciding the same afresh on all issues and to pronounce the judgement on all issues.
6. In view of the above and for the reasons stated hereinabove, the present second appeal fails and the same deserves to be dismissed and is accordingly dismissed. No costs.
As the suit is very old, Registry is directed to send writ of this order to the learned Trial Court immediately and learned Trial Court is hereby directed to finally decide and dispose of the suit on all issues at the earliest but not later than 30th August,2013. All concerned are directed to co- operate learned Trial Court in early disposal of the suit within stipulated time as stated hereinabove.
[M.R.SHAH,J] *dipti