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CRA/954/2001 1/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 954 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE P.B.MAJMUDAR
======================================
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 ?
======================================
KAMUBEN
DAHYABHAI KAPADIA
Versus
PRAMODCHANDRA
SHIVLAL PATEL
======================================
Appearance
:
M/S.VYAS
ASSOCIATES for the applicant
MR BS PATEL for the
opponent
======================================
CORAM
:
HONOURABLE
MR.JUSTICE P.B.MAJMUDAR
Date
: 28/02/2006
ORAL
JUDGMENT
By
filing this revision under Section 115 of the Code of Civil
Procedure, the petitioner ? original defendant of Special Civil
Suit No.67 of 2000 has prayed for quashing and setting aside the
order passed by the learned trial Court below Exhibit 13 in Special
Civil Suit No.67 of 2000.
2 The
petitioner herein is the original defendant of that suit and the said
suit is filed by original plaintiff, Pramodchandra Shivlal Patel for
getting decree for specific performance of suit agreement. In the
said suit, the application Exhibit 13 was given by the defendant
under Order 7 Rule 11(D) of the Code of Civil Procedure for rejecting
the plaint on the ground that the suit is time-barred and that no
specific averments have been made in the suit that the plaintiff is
ready and willing to perform his part of the contract.
3 It
is stated by the applicant in his application at Exhibit 13 that as
per the agreement dated 4.5.1992, remaining consideration of
Rs.20,000/- was required to be paid within six months from the date
of the agreement. It is the say of the applicant that since the
suit is not filed within the limitation period as per Article 54 of
the Limitation Act, the plaint is required to be rejected. It is
also averred by the applicant in his application that since there is
no specific averment in the plaint that the plaintiff is ready and
willing to perform his part of the contract, the suit is required to
be dismissed as it is the mandatory requirement of law to make such
averment in a suit for specific performance.
4 The
learned trial Judge after hearing both the sides and after
considering the record came to the conclusion that the parties
entered into agreement on 4.5.1992 and looking to the relationship
between the parties and considering the fact that since they were
staying in the same house, at this juncture, it cannot be said that
the time for executing the sale deed was not extended as according to
the learned Judge there was a stipulation in the agreement that the
time for performance of the contract can be extended by mutual
consent. The learned trial Judge found that whether the time was
extended or not for the performance of the contract, the Court is
required to consider the evidence on record, if led by the parties.
The Court found that without recording the evidence, at this
juncture, straightaway it is not possible to come to the conclusion
that the suit is time-barred. The learned Judge also found that
actual date regarding fixation of the performance of the agreement
cannot be decided without adducing the evidence in the matter.
Regarding the submission of the applicant of Exhibit 13 that the suit
is required to be dismissed for want of averment in the plaint about
the readiness and willingness to perform the part of the contract is
concerned, the readiness and willingness cannot be treated as a
straight jacket formula. This aspect is required to be considered
on the basis of entirety of the facts and circumstances of the case.
The learned trial Judge found that the plaintiff gave a notice to
the defendant to perform the obligation lies on her part and the same
is also produced along with the suit. It is also mentioned in the
same that the plaintiff is and was willing to pay the remaining
amount of Rs.25,000/- of the consideration of sale. The learned
Judge has found that when the plaintiff has shown his readiness and
willingness to perform his part of the contract and when the notice
issued by the plaintiff to the defendant was part of the pleadings,
on that ground, the suit is not required to be dismissed at threshold
without trying the same. In my view, it cannot be said that the
learned Judge has committed any error of jurisdiction in passing the
impugned order. In its limited jurisdiction under Section 115 of the
Civil Procedure Code this Court is required to see whether any
jurisdictional error is committed by the trial Court. The learned
Judge has rightly found that in view of the decision of the Apex
Court in the case of Rameshchandra Chandiol v. Chunnilal Sabartal,
AIR 1971 SC 1238, the readiness and willingness cannot be attributed
as straight-jacket formula and it is to be decided from the facts and
circumstances of the case. Considering the aforesaid aspect of the
matter, no interference of this Court in its revisional exercise of
the jurisdiction is called for against an interlocutory order of the
trial Court. It is, however, clarified that ultimately, at the time
of the deciding the suit the Court shall consider all these points
after the evidence is available on the record. The impugned order of
the trial Court below Exhibit 13 is to be considered only as an order
for the purpose of deciding the said interim application and the
points regarding readiness and willingness as well as limitation will
be decided after framing appropriate issues in this behalf, if such
issues arise out of the pleadings. The observation of the trial
Court at the time of passing the order below Exhibit 13 or the
observations made by this Court in this revision application is to be
treated only for the purpose of deciding the application Exhibit 13.
In view of
what has been stated herein above, the revision application is
rejected. Rule is discharged. Interim relief stands vacated.
No order as
to costs.
(P.B.Majmudar,
J.)
*mohd
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