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SCA/12665/2009 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12665 of 2009
=========================================
ARNUBHAI
POPATLAL THAKKAR PARTNER - SHITAL DEVELOPERS - Petitioner(s)
Versus
JHAMAKLAL
UDAYLAL JAIN & 2 - Respondent(s)
=========================================
Appearance :
MR
PC KAVINA, SENIOR ADVOCATE with MR KV SHELAT
for Petitioner(s) :
1,
NOTICE SERVED for Respondent(s) : 1 - 3.
MR PC FERNANDEZ for
RD RAVAL for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 15/06/2010
ORAL
ORDER
Heard learned
Senior Advocate Mr.P.C.Kavina with learned Advocate Mr.K.V.Shelat for
the petitioner.
2. Learned
Senior Advocate for the petitioner invited attention of the Court to
an order passed below application Exh.34 in HRP Suit No.2104 of 2008
dated 30.09.2009 by the learned Judge, Small Causes Court No.3,
Ahmedabad.
2.1 The
application Exh.34 was filed as back as on 22.01.2008 and in para-6
of that application, it is prayed that:-
a. Direct
the plaintiff to pay the requisite Court Fees Stamp on the prayer
‘Para 19 (a), (b), (c) and (d) in which the plaintiff have asked
the multiple declaratory prayers, including the prayers of the
injunctions, failing which, necessary order of rejection of the
plaint, under the aforesaid provisions be passed.
b. Dismiss
the suit as the said suit being time barred as well as this
Honourable Court has no jurisdiction to entertain the same.
c. Grant any
other relief which this Honourable Court may deem fit and proper
under the circumstances of the case.
(emphasis
supplied)
2.2 The
learned Judge dismissed the application by the order impugned.
3. Learned
Senior Advocate for the petitioners invited attention of the Court to
Section 19 of the Presidency Small Causes Court Act, 1882. For ready
perusal, relevant Clauses of Section-19 are reproduced:-
19. The
Small Cause Court shall have no jurisdiction in-
(a) to (f) xxxx
(g) suits for
the determination of any other right to or interest in immovable
property;
(h) suits for
the specific performance or rescission of contracts;
(i) to
(w) xxxx
4. Learned
Advocate Ms.P.C.Fernandez for learned Advocate Mr.R.D.Raval for the
respondent submitted that the present petitioner had filed
application Exh.53 in the same proceedings. A copy of application
Exh.53 is produced along with affidavit of Shri Arunbhai Popatlal
Thakkar at page No.98, whereby the present petitioner had prayed that
preliminary issue be framed under O-14 R-2 of the Code of Civil
Procedure. The issues which are required to be framed by original
defendant No.2 are contained in para-3 of that application, which
reads as under:-
3) That, the
defendant further submits that, he has raised the contentions about
the limitation also as the plaintiff have filed the suit for the
Specific Performance of the Agreement dated: 31/12/2003 which is
clearly barred by Law of Limitation as the suit is filed in the year
2008 i.e. after 5 Years and as such, the suit is not maintainable and
therefore the following issues are required to be framed as a Legal
issues:-
Whether
the suit is barred by Jurisdiction?
Whether
the suit is barred by Limitation?
Whether the
suit is maintainable as framed?
(emphasis
supplied)
4.1 This
application came to be decided by the Court below by order dated
10.03.2010. Incidentally, it is decided by the same learned Judge.
The relevant paras-5 and 6 of the order reads as under:-
5. ……………
earlier also she has submitted one application exh.34 on the same
grounds as set out in the present application and the Hon’ble Court
has disposed the same on 30.9.2009, but after that she was not ready
to argue out for the application exh.6. Even on 9.3.2010, she
gave assurance to this Court for hearing of application exh.6 but
instead of doing so, she has filed this application exh.52 for
framing the preliminary issues. So, looking to the documents
produced on record, it is clearly established that the present
plaintiff and others are originally tenants of Trust property and
trust has already obtained permission to sell the property and the
defendant no.3 has purchased the same by registered sale-deed
dtd.7.1.2006 with condition of possession and the plaintiff has filed
this suit on the same ground of tenant. So, as per my view, this
Court has jurisdiction to try the suit. Moreover, other tenants of
the suit property have filed H.R.P. Suit No.1342 of 2008 and
1343/2008 before the Small Cause Court and when the Small Cause Court
has already decided the interim injunction application then it
appears from the record that the plaintiff is original tenant of
trust property and on that point, they have filed the suit before
Small Cause Court.
6. ……………
Now looking to the entire documents on record, it is not proper to
frame the preliminary issues on above points, but if such issues are
framed at later stage then the defendant shall cause no prejudice.
Furthermore, the interim injunction application is pending since
long. As per the directions of the Hon’ble Gujarat High Court, the
Court is duty bound to dispose of the ad interim injunction
application as early as possible, even though the Court has granted
ample time for hearing and there is no any interim order of stay for
application exh.6. Hence, as per my view, this application is not
tenable at law at this stage. Moreover, Ms.Shah for the defendant
has cited one one judgment reported in 2000 (9) G.L.H. 1 Uttar
Gujarat Vij Co. Ltd. and Anr. Vs. Dhulabhai Kodarbhai Vankar and Anr.
But looking to the ratio laid down by Hon’ble The Apex Court in the
said judgment, I do agree with the said ratio, but it is not
applicable in the present case because here it clearly appears that
the plaintiff is originally tenant of the disputed property and the
defendant has purchased the same on 7.1.2006. Moreover, it is a
mixed question of law and facts involved in this matter and hence,
the cited judgment is not helpful to the case of the L.A. for the
defendant. L.A. Ms.Shah has argued that one agreement between both
the parties is executed on 31.12.2003, but looking to the copy of the
said agreement produced on record at mark-4/1, it is only an
agreement of contract and thereafter, the defendant no.3 has
purchased the disputed property by registered sale-deed on 7.01.2006
here produced at mar-38/2.
(emphasis
supplied)
5. The
submission of learned Advocate Ms.Fernandez for the respondent is
found to be without any merits inasmuch as, if the petitioner was
challenging an order passed below application Exh.53 which
is of subsequent date, i.e. 10.03.2010 then it could have been argued
that the petitioner is trying to bring the order passed below
application Exh.34 dated 30.09.2009 within the limitation period.
Here it is otherwise. The order challenged is passed below
application Exh.34 and that is the first order, whereby the Court did
not accept the contention of the petitioner herein original
defendant that the Court has no jurisdiction. Besides, learned
Senior Advocate for the petitioner invited attention of the Court to
the conduct of the present respondent from a document, a copy of
which is produced at Annexure-C to this petition,
wherein he has accepted a handsome amount of Rs.21 lacs by cheque and
not only that, the petitioner has produced documentary evidence not
only to show that, that amount is debited from his account but also
to show that, that amount was credited in the account of the tenant.
After having pocketed an amount of Rs.21 lacs, to challenge the
transaction in the Small Causes Court is nothing but an attitude
which is required to be deprecated.
Be that as it
may, for the present, the Court is required to consider as to
whether the Small Causes Court has jurisdiction to decide about
validity of a particular document. In the opinion of this Court,
even if the validity of a document is required to be challenged, it
is required to be challenged before the appropriate Court and after
having obtained a declaration that the document is null and void, the
defendant tenant is required to go to the Court of Small Causes.
6. In view of
the above, the matter requires.
RULE.
Interim
relief in terms of
para-22-[C].
Admission of
this petition should not preclude the parties from arriving at an
amicable settlement of the dispute.
(Ravi
R.Tripathi, J.)
*Shitole
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