SCA/810720/2008 6/ 8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8107 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= SABBIRBHAI ABDULHUSSEN MODY & 1 - Petitioner(s) Versus INDRAJITSINH BHAGWATSINH RATHOD & 3 - Respondent(s) ========================================================= Appearance : MR MEHUL S SHAH for Petitioner(s) : 1 - 2.MR SURESH M SHAH for Petitioner(s) : 1 - 2. MR NIKHIL S KARIEL for Respondent(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 23/09/2008 ORAL JUDGMENT
1. RULE.
Learned advocate Mr Nikhil Kariel for the respondents waives service
of Rule.
2. Petitioners
are the original plaintiffs. They have instituted Special Civil Suit
No. 69 of 2007 before the learned Principal Senior Civil Judge, Bhuj.
Issue pertains to dispute between the parties with respect to
certain immovable properties which we may refer to as the suit
property . The petitioners plaintiffs had agreed to purchase the
said suit property from the respondents original defendants.
Apparently, before the Civil Court, the defendants contended that
they always were and are ready and willing to perform their part of
the contract, and if the
plaintiffs’ act according to the terms of the agreement, defendants
have no hesitation in transferring the suit land in favour of the
plaintiffs.
3. It
appears that between the plaintiffs and the defendants, disputes
arose with respect to procedure for executing the sale deed. As per
the defendants, the plaintiffs had not been prepared to make full
payment of the purchase price of the suit land and were, therefore,
raising frivolous objections. Be that as it may, it appears that the
defendants filed applications Exhs.136 and 137 before the Trial
Court. In the application Exh.136 filed on 16.05.2008, the
defendants contended that the plaintiffs have not acted as per the
Court’s order, therefore, the defendants be permitted to reclaim the
original documents pertaining to the suit land. In application
Exh.137; also filed on 16.05.2008, the defendants stated that since
the plaintiffs had not acted as per the direction of the Court, the
original agreement to sale stands cancelled and the original
documents be returned to the defendants. It is not in dispute that
the learned Judge passed the impugned order dated 16.05.2008 commonly
disposing of the applications Exhs.136 and 137 and held that the
plaintiffs are not ready and willing to perform their part of the
agreement and they, therefore, are not entitled to order of specific
performance and the agreement to sale, therefore, stands cancelled.
He, therefore, found that the original documents pertaining to the
suit land be returned to the defendants.
4. On
10.06.2008, the learned Single Judge of this Court had passed the
following order:-
Mr.Nikhil
Kariel appears on behalf of the caveator. Mr.Shah for the petitioner
submitted that the applications Exh.136 and 137 were tendered on 16th
May, 2008 and the orders thereon came to be passed on the same day
i.e. on 16th May, 2008 but without hearing the present
petitioners.
Mr.Kariel
has opposed the submission that the orders were passed without
hearing the present petitioners. In his submission, the petitioners’
representative, though present in the Court at earlier point of
time, did not remain present at the time the application was taken up
for hearing and the order was passed.
Be that
as it may, the facts remain that the applications were tendered on
16th May, 2008 and the order came to be passed on the same
day. The petitioners herein could have been given an opportunity to
file their objections and of being heard before passing the said
order.
However,
unfortunately, the order seems to have been already acted upon
inasmuch as the trial Court appears to have returned the documents
pursuant to the order dated 16th May, 2008. Not only this
but subsequently the respondent, as per the submissions made by
Mr.Kariel today, has already parted with part of the suit land on 6th
June, 2008 i.e. about 22 acres out of total 97 acres of suit land.
In view
of the facts and circumstances which now obtain on record of the
present petition and particularly after the order dated 16th
May, 2008, the records and proceedings of the Special Civil Suit
No.66/2008 and particularly the record relating to Exhibits 131, 132,
136, 137, 139 and 140 be called for so as to reach this Court on or
before 25th June, 2008.
Notice
returnable on 25th June, 2008. Mr.Kariel waives notice on
behalf of the respondents.
The
respondents will not further alienate, in any manner i.e. by way of
sale or otherwise, the balance suit land until 25th June,
2008.
5. Basic
facts are not in dispute. It is not in dispute that applications
Exhs.136 and 137 were filed by the defendants on 16.05.2008. It is
also not in dispute that copies thereof were not served on the
plaintiffs. It is also not in dispute that both these applications
came to be granted by the learned Judge by the impugned common order
dated 16.05.2008. Thus, admittedly and quite surprisingly,
applications Exhs. 136 and 137 came to be filed on 16.05.2008, came
to be entertained on the same day, came to be granted also on the
same day, without even copies thereof being served on the plaintiffs.
No special reasons are forthcoming in the impugned order why the
applications should have been considered with such undue urgency. If
the defendants were justified in contending before the Court that the
plaintiffs by their conduct had demonstrated that they are not ready
and willing to perform their part of the contract and had thereby
rendered themselves ineligible to seek specific performance of the
contract, it was always open for the learned Judge to come to such a
conclusion after giving proper opportunity to both the sides. Such
conclusions could not have been arrived at unilaterally without any
opportunity to the plaintiffs and in any case, in such hot haste.
Effectively by the said order dated 16.05.2008, the learned Judge
rendered the suit of the plaintiffs infructuous. The learned Judge
concluded against the plaintiffs that they are not willing to perform
their part of contract. The learned Judge, therefore, held that the
plaintiffs are not entitled to seek specific performance of the
contract. Whatever be the conduct of the plaintiffs, they were
entitled to fair hearing before such conclusions could be drawn
against them. From the order, it appears that the learned Judge
waited through the day for the advocate of the plaintiffs or the
plaintiffs themselves. Without any prior intimation or service of
copies of the applications, it is difficult to understand how the
learned Judge expected the plaintiffs or their advocate to appear and
oppose the applications. In any case, what baffles me the most is
that there was virtually no reason for the learned Judge to proceed
on those applications peremptorily without even waiting for a day’s
time being granted to the plaintiffs and in fact without even copies
of such applications being served on the plaintiffs. The entire
procedure adopted lacks transparency. It is unfortunate that such
conclusions of far reaching effect were arrived at without giving any
opportunity whatsoever to the plaintiffs to oppose the prayers made
in the applications. Curiously in the applications Exhs. 136 and
137, it was not even the prayers of the defendants that the Court
should hold that the plaintiffs are not entitled to seek specific
performance of the contract. The learned Judge travelled beyond the
prayers made in the applications Exhs. 136 and 137 and granted
prayers which were not even made therein.
6. In
view of the above discussion, submission of the counsel for the
respondents that on account of their conduct, the petitioners are not
entitled to any relief in the present proceedings cannot be accepted.
If by their conduct, the plaintiffs had shown their unwillingness to
perform their side of the contract, the learned Judge could have
passed appropriate orders after hearing the plaintiffs but not
before.
7. Under
the circumstances, I have no hesitation in striking down the impugned
order dated 16.05.2008. The same is, therefore, set aside. As
recorded by the learned Single Judge of this Court in the order dated
10.06.2008,
it is the case of the respondents herein original defendants that
in the meantime, they have entered into certain further transaction.
It would be open for the petitioners to take redressal in this regard
in accordance with law.
8. In the
result, the petition is allowed with cost of Rs.10,000/- (Rupees ten
thousand only).
Rule is
made absolute accordingly.
Writ of
this order shall be sent promptly.
(Akil
Kureshi, J.)
mrpandya*