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SCA/12185/2009 15/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12185 of 2009
With
SPECIAL
CIVIL APPLICATION No. 12190 of 2009
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=====================================================
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 ?
=====================================================
MAHESHBHAI
S VADHVANI - Petitioner(s)
Versus
JAGDISHBHAI
MANILAL BHOJANI & 1 - Respondent(s)
=====================================================
Appearance :
Mr.Y.N.Oza,learned
senior advocate with MR ASHISH B DESAI for
Petitioner.
MR VIMAL M PATEL for Respondent No.1
MR SP MAJMUDAR
for Respondent
No.2.
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 13/01/2010
COMMON
ORAL JUDGMENT
1. Rule.
Mr.Vimal M.Patel,learned advocate waives service of notice of Rule
for respondent No.1 and Mr.S.P.Majmudar,learned advocate waives
service of notice of Rule for respondent No.2. With the consent of
the learned counsel for the respective parties, the petition is
being heard and finally decided today.
2. As
both petitions deal with common questions of law and fact, they are
being heard and decided by a common judgment. For the sake of
brevity, the facts of Special Civil Application No.12185 of 2009 have
been referred to. This petition, filed under Article 227 of the
Constitution of India challenges order dated 16-9-2008 passed below
application at Exh.24 and order dated 3-11-2009 passed below
application at Exh.76, both of which have been rendered by the Trial
Court.
3. At
the very outset, Mr.Y.N.Oza,learned Senior Advocate appearing with
Mr.Ashish B.Desai for the petitioner, has submitted that the interest
of justice would be met if the Court does not go into the merits of
the case but only decides the petition with respect to the issue
regarding the so-called undertaking that is purported to have
been given by the learned counsel for the petitioner before the Trial
Court, as recorded in impugned order dated 16-9-2008, and on the
basis of which the impugned order dated 3-11-2009 has been passed.
4. The
brief factual background leading to the filing of the petitions is
that the respondent No.1(original plaintiff) preferred a Civil Suit,
being Special Civil Suit No.131 of 2008, for grant of declaration and
permanent injunction against four defendants, out of which only two
defendants i.e. petitioner (Original defendant No.2) and respondent
No.2(original defendant No.1) are impleaded in the present petition.
5. The
petitioner (original defendant No.2) filed an application at Exh.11
under the provisions of Order 7 Rule 11 of the Code of Civil
Procedure for dismissal of the plaint, which was rejected by order
dated 16-9-2008. However, that is not the subject matter of the
present petition. On that very day, respondent No.1(original
plaintiff) filed an application at Exh.24, with a prayer to grant an
order of status-quo regarding the suit property,till the application
at Exh.5 filed by him is decided. The learned advocate for the
petitioner (original defendant No.2) and respondent No.2(original
defendant No.1) before the Trial Court was served with a copy of the
application at Exh.24. He made a specific endorsement on the said
application in the Vernacular, to the effect that;
We
are opposing this application. Today the Hon’ble Court was to
pronounce the order. The order is pronounced today in the afternoon.
Appeal is to be preferred against the order before the Hon’ble
Gujarat High Court. In this situation reply/objections are not
filed. I request that appropriate order may be passed for hearing
and to file reply/objections.
The
Court below disposed of application at Exh.24 on the same day, that
is 16-9-2008, by passing an order which reads;
In
view of undertaking by LA of deft application is disposed of
accordingly. 16-9-2008.
6. Thereafter,
the respondent No.1(original plaintiff) moved an application at
Exh.76 as, according to the plaintiff,both defendants Nos.1 and 2
(the petitioner and respondent No.2) are violating the undertaking
and one person of the defendant No.2(petitioner) is cultivating the
suit land by plying a tractor. An order of status-quo was, therefore,
prayed for. This application has been allowed by order dated
3-11-2009 on the ground that there was an undertaking by the learned
advocate for the petitioner (original defendant No.2). Aggrieved by
the orders dated 16-9-2008 and 3-11-2009 passed below applications at
Exh.24 and Exh.76, the petitioner has approached this Court by filing
the petition.
7. Mr.Y.N.Oza,
learned Senior Advocate for the petitioner has submitted that the
order passed below application at Exh.24 on 16-9-2008 is erroneous as
the endorsement made by the learned advocate for the petitioner
before the Trial Court is clearly visible on the left hand side of
the application and there is no mention of an undertaking in the
said endorsement. In fact,the application at Exh.24 contains a prayer
to grant an order of status-quo and nowhere is it reflected in the
body of the said application, that any undertaking has been given by
the learned advocate for the petitioner,before the Trial Court. The
said application has been opposed and it is clearly endorsed that an
appeal is to be preferred before the High Court and in this
situation, the reply/objections are not filed and an appropriate
order may be passed for hearing and to file reply/objections. It is
emphasised that this endorsement can, in no manner, be construed as a
undertaking. The learned Senior Advocate for the petitioner further
submitted that the order of the Court wherein the word of
undertaking has been mentioned does not specify what is the
nature of the undertaking, when it was given, and what is the
duration for the undertaking, therefore, any order passed on the
basis of this order, cannot be permitted to stand. It is further
contended that the order below application at Exh.76 has been passed
in view of the so-called undertaking but no-where has it been
mentioned what the nature or content of the undertaking was/is. It
is denied that any undertaking has been given by the
petitioner. It is further urged, on behalf of the petitioner, that
the respondent No.2, solely with a view to binding down the
petitioner has filed the application at Exh.29, wherein it is
declared that an undertaking has been given by the learned
advocate for the petitioner. It is further submitted that the
respondent No.2 (original defendant No.1),who had supported the case
of the petitioner before the Trial Court as a co-defendant and was
defended by the same learned advocate, has now colluded with the
respondent No.1, which is proved by the affidavit-in-reply filed by
him before this Court, supporting the stand of the respondent No.1,
whereas, such a stand was never taken before the Trial Court. The
learned Senior Advocate for the petitioner has relied upon a judgment
of the Supreme Court in Babu Ram Gupta v. Sudhir Bhasin, AIR 1979
SC 1528, wherein it has been
held that in the absence of any express undertaking in writing given
by a party or any undertaking incorporated in the order of the Court,
it would be difficult to hold that the appellant (in that case)
willfully disobeyed or
committed breach of such an undertaking. It is further submitted
that the case of the petitioner is squarely covered by the above-
mentioned judgment. As there is no express undertaking in writing and
nor has the Court recorded the nature or content of the undertaking,
(though denied) it cannot be said that the petitioner has committed
a breach of any undertaking so as to justify the passing of the
impugned order below Exh.76.
8. Mr.Vimal
M.Patel, learned counsel for the respondent No.1 (original plaintiff)
has vehemently contested the petition and has submitted that, though
there is no written undertaking by the petitioner on record,the
learned advocate who was earlier appearing for the petitioner before
the Trial Court, has given a verbal undertaking, and that
undertaking has been mentioned by the Trial Court in the impugned
orders. It is further submitted that the petitioner is now trying to
take advantage of the change of advocate before the Trial Court. In
order to bring to the notice of the new advocate engaged by the
petitioner before the Trial Court, the respondent No.1 has supplied
a copy of the application at Exh.29 to him, wherein
it is stated that the undertaking has been given, and the same has
been received by the said advocate. That the conduct of the
petitioner is such that no relief can be granted in his favour, as
the petitioner is now trying to take undue advantage by resiling from
a verbal undertaking that was given by his advocate before the Trial
Court regarding maintenance of status-quo, qua the suit property. It
is further contended that the impugned orders have been correctly
passed and do not deserve to be interfered with,by this Court.
9. Mr.S.P.Majmudar,
learned counsel for the respondent No.2 (original defendant No.1) has
supported the stand of the respondent No.1 (original plaintiff)
before this Court and has reiterated the averments made in the
affidavit-in-reply filed by him wherein it is stated that the
petitioner has given an oral undertaking.
10. Having
heard the learned counsel for the respective parties and having
considered the material on record, I would like to make it clear at
the very outset, that this Court is not inclined to go into the
merits of the case, or the issues that are in dispute between the
parties before the Trial Court. The entire controversy has arisen due
to the undertaking purported to have been given by the learned
advocate for the petitioner before the Trial Court. It is not for
this Court to decide whether an undertaking was given, or not, and if
given, what was the nature and content of the undertaking, or the
duration for which it would operate. In my considered view, these
details ought to have been recorded by the Trial Court itself. Had an
oral undertaking been given by any of the parties or their learned
advocate(s) the Court should have expressly recorded the exact terms
of the undertaking in its order. The record and proceedings of the
case have been called for and perused. It transpires that there is no
written undertaking on record, and this position is not disputed by
the learned counsel for the respondents,as well. The stand of the
respondents is that an oral undertaking was given by the learned
advocate for the petitioner before the Trial Court, to the effect
that the petitioner shall maintain status quo, in respect of the
suit property till the final decision of the application at Exh.5.
Having perused the contents of the impugned orders and the record of
the case,I am unable to find any record of such an undertaking. No
undertaking has expressly been given in writing by the petitioner or
his learned advocate. The Court has also not recorded any
undertaking. If the contents of the application at Exh.24 filed by
the respondent No.1 (original plaintiff) on which the court has
recorded the order dated 16-09-2008 regarding the undertaking are
perused, it is clear that the prayer made therein is for grant of
status-quo till the hearing of application at Exh.5. Nowhere has it
been mentioned that an undertaking, oral or in writing, has been
given. It is true that the respondent No.1 (original plaintiff) has
filed another application/ Purshish at Exh.29 on 22-9-2008, declaring
that on the last date of hearing that is 16-9-2008, the learned
advocate appearing for the petitioner and respondent No.2 has
given an undertaking on behalf of his clients that status-quo, qua
the suit property would be maintained, but strangely enough the order
of the court dated 16-09-2008 passed below this application does not
disclose whether the undertaking was an oral one, or in writing, and
what were the express terms of the said undertaking. The impugned
order below the application at Exh.76 also mentions an undertaking
and appears to have been passed on the basis of the undertaking
referred to in order dated 16-9-2008. However, the nature and
contents of the undertaking and duration of its operation, has not
been referred to.
11. On
these facts and circumstances, this Court is faced with a situation
where there is no material on record to indicate what are the
contents and terms of the undertaking referred to, its nature or the
duration of time for which it would remain in place. Assuming there
may have been an oral undertaking, the terms and conditions thereof
ought to have been expressly recorded by the Trial Court. Merely, by
mentioning the word undertaking it cannot be gauged what the
exact terms of the undertaking were. In a situation where the rival
parties are engaged in litigation against each other,it would neither
be prudent, nor proper, to place complete reliance on the
construction given by the respondent No.1 in Exh.29, ‘declaring’ the
nature of the undertaking, in the absence of any order recording the
same. It is the bounden duty of the Courts to pass judicial orders
precisely and clearly, as orders of the Courts below are amenable to
appeal/judicial review by superior courts. It ought to be kept in
mind that recording correct events and giving proper reasons is
necessary, so that the superior court is in a position to understand
the factual position regarding what transpired before the concerned
Court. It is only through the orders of the courts that superior
courts can get a fair idea of the happenings that transpired.
Judicial orders of the Trial Court form the basis of proceedings and
should contain a clear and precise reflection of judicial
proceedings. Undertakings given by any party can be of various
kinds. There can be a complete undertaking, or a partial or
conditional one. The exact nature and contents of an undertaking
cannot be gauged unless it is expressed in writing or,if
oral,incorporated clearly in the order of the Court before which it
is given. Just by writing the word undertaking in the order
does not absolve the court from its responsibility to record the
exact terms of the undertaking given by any party or its advocate,
(in this case the learned advocate for the petitioner, before the
Trial Court), as such an undertaking would affect the rights of
parties, and could also invite certain consequences, if it is
flouted.
12. In
the present case, in the absence of the undertaking being recorded in
the impugned orders of the Court, it is only the word of the
respondent No.1 against the word of the petitioner that the Court is
faced with. In such a situation,the Court will not enter into the
arena of disputed questions of fact.
13. In
Babu Ram Gupta v. Sudhir Bhasin (Supra), the
Supreme Court was dealing with the issue regarding contempt of a
compromise decree. In paragraph 10 of the said judgment,certain tests
have been laid down, which are extremely pertinent for the decision
of the case in hand. The relevant extract is reproduced below:
10.
***** ***** ***** ****** In
the absence of any express undertaking given by the appellant or any
undertaking incorporated in the order impugned, it will be difficult
to hold that the appellant wilfully disobeyed or committed breach of
such an undertaking. What the High Court appears to have done is that
it took the consent order passed which was agreed to by the parties
and by which a receiver was appointed, to include an undertaking
given by the contemner to carry out the directions contained in the
order. With due respects, we are unable to agree with this view taken
by the High Court. ************************** In these circumstances,
we are satisfied that unless there is an express undertaking given in
writing before the court by the contemner or incorporated by the
court in its order,there can be no question of wilful disobedience of
such an undertaking. In the instant case, we have already held that
there is neither any written undertaking filed by the appellant nor
was any such undertaking impliedly or expressly incorporated in the
order impugned. Thus, there being no undertaking at all the question
of breach of such undertaking does not arise.
14. Applying
the principles of law enunciated by the Supreme Court to the
present case, it is the admitted position that no express
undertaking has been been given in writing by the petitioner or his
learned advocate before the Trial Court. It is also clear that the
date of the undertaking(if any), its nature, contents,terms and
duration, have not been recorded by the Trial Court. It cannot,
therefore, be decided whether the petitioner has fully or
partially,if at all, committed a breach of an undertaking. The
impugned orders refer casually to an undertaking without any
further detail. By not clearly recording the express terms of the
undertaking,if given, confusion and multiplicity of litigation has
arisen. In such circumstances, with nothing concrete to go by,the
impugned orders deserve to be set aside. The Trial Court has
committed an error by not exercising jurisdiction vested in it, in
accordance with law.
15. For
the reasons stated hereinabove, the order dated 16-9-2008 passed
below application at Exh.24 and order dated 3-11-2009 passed below
application at Exh.76 are quashed and set aside,in both the
petitions. The petitions are partly-allowed, as above. Rule is made
absolute to the above extent,in each petition.
It
is clarified that the Court has not gone into the merits of the case
and the Trial Court is at liberty to decide the issues before it,
after hearing the parties, and in accordance with law. It is also
open to the respondent No.1 to move the Trial Court for an early
hearing of the application at Exh.5. If so moved, the Trial Court
shall decide the same,as expeditiously as possible.
The
Record and Proceedings be sent back to the concerned Court.
(Smt.Abhilasha Kumari,J)
arg
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