{"id":128770,"date":"2010-01-13T00:00:00","date_gmt":"2010-01-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/maheshbhai-vs-jagdishbhai-on-13-january-2010"},"modified":"2016-11-26T22:17:50","modified_gmt":"2016-11-26T16:47:50","slug":"maheshbhai-vs-jagdishbhai-on-13-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/maheshbhai-vs-jagdishbhai-on-13-january-2010","title":{"rendered":"Maheshbhai vs Jagdishbhai on 13 January, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Maheshbhai vs Jagdishbhai on 13 January, 2010<\/div>\n
Author: Abhilasha Kumari,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/12185\/2009\t 15\/ 17\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 12185 of 2009\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 12190 of 2009\n \n\n \n \nFor\nApproval and Signature:  \n \nHON'BLE\nSMT. JUSTICE ABHILASHA KUMARI\n \n \n=====================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=====================================================\n \n\nMAHESHBHAI\nS VADHVANI - Petitioner(s)\n \n\nVersus\n \n\nJAGDISHBHAI\nMANILAL BHOJANI & 1 - Respondent(s)\n \n\n=====================================================\n \nAppearance : \nMr.Y.N.Oza,learned\nsenior advocate with MR ASHISH B DESAI for\nPetitioner. \nMR VIMAL M PATEL for Respondent No.1 \nMR SP MAJMUDAR\nfor Respondent\nNo.2. \n=====================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHON'BLE\n\t\t\tSMT. JUSTICE ABHILASHA KUMARI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 13\/01\/2010 \n\n \n\n \n \nCOMMON\nORAL JUDGMENT<\/pre>\n
1.\tRule.\n<\/p>\n
Mr.Vimal M.Patel,learned advocate waives service of notice of Rule
\nfor respondent  No.1 and Mr.S.P.Majmudar,learned advocate waives
\nservice of notice of Rule for respondent No.2. With the consent of
\nthe learned counsel for the respective parties, the petition is
\nbeing heard and finally decided today.\n<\/p>\n
2.\tAs
\nboth petitions deal with  common questions of law and fact, they are
\nbeing heard and decided by a common judgment. For the sake of
\nbrevity, the facts of Special Civil Application No.12185 of 2009 have
\nbeen referred to. This petition, filed under Article 227 of the
\nConstitution of India challenges order dated 16-9-2008 passed below
\napplication at Exh.24 and order dated 3-11-2009 passed below
\napplication at Exh.76, both of which have been rendered by the Trial
\nCourt.\n<\/p>\n
3.\tAt
\nthe very outset, Mr.Y.N.Oza,learned Senior Advocate appearing with
\nMr.Ashish B.Desai for the petitioner, has submitted that the interest
\nof justice would be met if the Court does not go into the merits of
\nthe case but only decides the petition with respect to the issue
\nregarding the so-called  undertaking  that is purported to have
\nbeen given by the learned counsel for the petitioner before the Trial
\nCourt,  as recorded in impugned order dated 16-9-2008, and on the
\nbasis of which the impugned order dated 3-11-2009 has been passed.\n<\/p>\n
4.\tThe
\nbrief factual background leading to the filing of the petitions is
\nthat the respondent No.1(original plaintiff) preferred a Civil Suit,
\nbeing Special Civil Suit No.131 of 2008, for grant of declaration and
\npermanent injunction against four defendants, out of which only two
\ndefendants i.e. petitioner (Original defendant No.2) and respondent
\nNo.2(original defendant No.1) are impleaded in the present petition.\n<\/p>\n
5.\tThe
\npetitioner (original defendant No.2) filed an application at Exh.11
\nunder the provisions of Order 7 Rule 11 of the Code of Civil
\nProcedure for dismissal of the plaint, which was rejected  by order
\ndated 16-9-2008. However, that is not the subject matter of the
\npresent petition. On that very day, respondent No.1(original
\nplaintiff) filed an application at Exh.24, with a prayer to grant an
\norder of status-quo regarding the suit property,till the application
\nat Exh.5 filed by him is decided. The learned advocate for the
\npetitioner (original defendant No.2) and respondent No.2(original
\ndefendant No.1) before the Trial Court was served with a copy of the
\napplication at Exh.24. He made a specific endorsement on the said
\napplication in the Vernacular, to the effect that;\n<\/p>\n
 We
\n\tare opposing this application. Today the Hon’ble Court was to
\n\tpronounce the order. The order is pronounced today in the afternoon.
\n\tAppeal is to be preferred against the order before the Hon’ble
\n\tGujarat High Court. In this situation reply\/objections are not
\n\tfiled. I request that appropriate order may be passed for hearing
\n\tand to file reply\/objections.\n<\/p>\n
\tThe
\nCourt below disposed of application at Exh.24 on the same day, that
\nis  16-9-2008, by passing an order which reads;\n<\/p>\n
 In
\nview of undertaking by LA of deft \tapplication is disposed of
\naccordingly. \t16-9-2008.\n<\/p>\n
6.\tThereafter,
\nthe respondent No.1(original plaintiff) moved an application at
\nExh.76 as, according to the plaintiff,both defendants Nos.1 and 2
\n(the petitioner and respondent No.2) are violating the undertaking
\nand one person of the defendant No.2(petitioner) is cultivating the
\nsuit land by plying a tractor. An order of status-quo was, therefore,
\nprayed for. This application has been allowed by order dated
\n3-11-2009 on the ground that there was an undertaking by the learned
\nadvocate for the petitioner (original defendant No.2). Aggrieved by
\nthe orders dated 16-9-2008 and 3-11-2009 passed below applications at
\nExh.24 and Exh.76, the petitioner has approached this Court by filing
\nthe petition.\n<\/p>\n
7.\tMr.Y.N.Oza,
\nlearned Senior Advocate for the petitioner has submitted that the
\norder passed below application at Exh.24 on 16-9-2008 is erroneous as
\nthe endorsement made by the learned advocate for the petitioner
\nbefore the Trial Court is clearly visible on the left hand side of
\nthe application and  there is no mention of an undertaking in the
\nsaid endorsement. In fact,the application at Exh.24 contains a prayer
\nto grant an order of status-quo and nowhere is it reflected in the
\nbody of the said application, that any undertaking has been given by
\nthe learned advocate for the petitioner,before the Trial Court. The
\nsaid application has been opposed and it is clearly endorsed that an
\nappeal is to be preferred before the High Court and in this
\nsituation, the reply\/objections are not  filed and an appropriate
\norder may be passed for hearing and to file reply\/objections. It is
\nemphasised that this endorsement can, in no manner, be construed as a
\nundertaking. The learned Senior Advocate for the petitioner further
\nsubmitted that the order of the Court wherein the word of
\n undertaking  has been mentioned does not specify what is the
\nnature of the undertaking,  when it was given, and what is the
\nduration for  the undertaking, therefore, any order passed on the
\nbasis of this order, cannot be permitted to stand. It is further
\ncontended that the order below application at Exh.76 has been passed
\nin view of the so-called  undertaking  but no-where has it been
\nmentioned what  the nature or content of the undertaking was\/is. It
\nis denied that any  undertaking  has been given by the
\npetitioner. It is further urged, on behalf of the petitioner, that
\nthe respondent No.2, solely with a view to binding down the
\npetitioner has filed the application at Exh.29, wherein it is
\ndeclared that an  undertaking  has been given by the learned
\nadvocate for the petitioner. It is further submitted that the
\nrespondent No.2 (original defendant No.1),who had supported the case
\nof the petitioner before the Trial Court as a co-defendant and was
\ndefended by the same learned advocate, has now colluded with the
\nrespondent No.1, which is proved by the affidavit-in-reply filed by
\nhim before this Court, supporting the stand of the respondent No.1,
\nwhereas, such a stand was never taken before the Trial Court. The
\nlearned Senior Advocate for the petitioner has relied upon a judgment
\nof the Supreme Court in Babu Ram Gupta v. Sudhir Bhasin, AIR<\/a> 1979
\nSC 1528, wherein it has been
\nheld that in the absence of any express undertaking in writing given
\nby a party or any undertaking incorporated in the order of the Court,
\nit would be  difficult to hold that the appellant (in that case)
\nwillfully disobeyed or
\ncommitted  breach of such an undertaking. It is further submitted
\nthat the case of the petitioner is squarely covered by the above-
\nmentioned judgment. As there is no express undertaking in writing and
\nnor has the Court recorded the nature or content of the undertaking,
\n(though denied)  it cannot be said that the petitioner has committed
\na breach of any undertaking so as to justify the passing of the
\nimpugned order below Exh.76.\n<\/p>\n
8.\tMr.Vimal
\nM.Patel, learned counsel for the respondent No.1 (original plaintiff)
\nhas vehemently contested the petition and has submitted that, though
\nthere is no written undertaking by the petitioner on record,the
\nlearned advocate who was earlier appearing for the petitioner before
\nthe Trial Court, has given a verbal undertaking, and  that
\nundertaking  has been mentioned by the Trial  Court in the impugned
\norders. It is further submitted that the petitioner is now trying to
\ntake advantage of the change of advocate before the Trial Court. In
\norder to bring to the notice of the new advocate engaged by the
\npetitioner before the Trial Court, the respondent No.1 has supplied
\na copy of the application at Exh.29 to  him, wherein
\nit is stated that the undertaking has been given, and the same has
\nbeen received by the said advocate. That the conduct of the
\npetitioner is such that no relief can be granted in his favour, as
\nthe petitioner is now trying to take undue advantage by resiling from
\na verbal undertaking that was given by his advocate before the Trial
\nCourt regarding maintenance of status-quo, qua the suit property. It
\nis further contended that the impugned orders have been correctly
\npassed and do not deserve to be interfered with,by this Court.\n<\/p>\n
9.\tMr.S.P.Majmudar,
\nlearned counsel for the respondent No.2 (original defendant No.1) has
\nsupported the stand of the respondent No.1 (original plaintiff)
\nbefore this Court and has reiterated the averments made in the
\naffidavit-in-reply filed by him wherein it is stated that the
\npetitioner has given an oral undertaking.\n<\/p>\n
10.\tHaving
\nheard the learned counsel for the respective parties and having
\nconsidered the material on record, I would like to make it clear at
\nthe very outset, that this Court is not inclined to  go into the
\nmerits of the case, or the issues that are in dispute between the
\nparties before the Trial Court. The entire controversy has arisen due
\nto the  undertaking  purported to have been given by the learned
\nadvocate for the petitioner before the Trial Court. It is not for
\nthis Court to decide whether an undertaking was given, or not, and if
\ngiven, what was the nature and content of the undertaking, or the
\nduration for which it would operate. In my  considered view, these
\ndetails ought to have been recorded by the Trial Court itself. Had an
\noral undertaking been given  by any of the parties or their learned
\nadvocate(s) the Court should have expressly recorded the exact terms
\nof the undertaking in its order. The record and proceedings of the
\ncase have been called for and perused. It transpires that there is no
\nwritten undertaking on record, and  this position is not disputed by
\nthe learned  counsel for the respondents,as well. The stand of the
\nrespondents is that an oral undertaking was given by the learned
\nadvocate for  the petitioner before the Trial Court, to the effect
\nthat the   petitioner shall maintain status quo, in respect of  the
\nsuit property till the final decision of the application at Exh.5.
\nHaving perused the contents of the impugned orders and the record of
\nthe case,I am unable to find any record of such an undertaking. No
\nundertaking has  expressly been given in writing by the petitioner or
\nhis learned advocate. The Court has also not recorded any
\nundertaking. If the contents of the application at Exh.24 filed by
\nthe respondent No.1 (original plaintiff)  on which the court has
\nrecorded the order dated 16-09-2008 regarding the undertaking are
\nperused, it is clear that the prayer made therein  is for grant of
\nstatus-quo till the hearing of application at Exh.5. Nowhere has it
\nbeen mentioned that an undertaking, oral or in writing, has been
\ngiven. It is true that the respondent No.1 (original plaintiff) has
\nfiled another application\/ Purshish at Exh.29 on 22-9-2008, declaring
\nthat on the  last date of hearing that is 16-9-2008, the learned
\nadvocate appearing for   the petitioner and respondent No.2 has
\ngiven an undertaking on behalf of his clients that status-quo, qua
\nthe suit property would be maintained, but strangely enough the order
\nof the court dated 16-09-2008 passed below this application does not
\ndisclose whether the undertaking was an oral  one, or in writing, and
\nwhat were the express terms of the said undertaking. The impugned
\norder  below the application at Exh.76  also mentions an undertaking
\nand appears to have been passed on the basis of the  undertaking
\nreferred to in order dated 16-9-2008. However, the nature and
\ncontents of the undertaking and  duration of its operation, has not
\nbeen referred to.\n<\/p>\n
11.\tOn
\nthese facts and circumstances, this Court is faced with a situation
\nwhere there is no material on record to indicate what are the
\ncontents and  terms of the undertaking referred to, its nature or the
\nduration of time for which it would remain in place. Assuming there
\nmay  have been an oral undertaking, the terms and conditions thereof
\nought to have been expressly recorded by the Trial Court. Merely, by
\nmentioning the word  undertaking  it cannot be gauged what the
\nexact terms of  the undertaking were. In a situation where the rival
\nparties are engaged in litigation against each other,it would neither
\nbe prudent, nor proper, to place complete reliance on the
\nconstruction given by the respondent No.1 in Exh.29, ‘declaring’ the
\nnature of the undertaking, in the absence of any order recording the
\nsame. It is the bounden duty of the Courts to  pass judicial orders
\nprecisely and clearly, as orders of the Courts below are amenable to
\nappeal\/judicial review by superior courts. It ought to  be kept in
\nmind that  recording correct events and giving proper reasons is
\nnecessary, so that the superior court is in a position to understand
\nthe factual position regarding what transpired before the concerned
\nCourt. It is only through the orders of the  courts that  superior
\ncourts can get a fair idea of the happenings that transpired.
\nJudicial orders of the Trial Court form the basis of proceedings and
\nshould contain a clear and precise reflection of judicial
\nproceedings.  Undertakings given by any party  can be of  various
\nkinds. There can be  a complete undertaking, or  a partial or
\nconditional one. The exact nature  and contents of an undertaking
\ncannot be  gauged unless it is expressed in writing or,if
\noral,incorporated clearly in the order of the Court before which it
\nis given. Just by writing the word  undertaking  in the order
\ndoes not absolve the court from its responsibility to record the
\nexact terms of the undertaking given by any party or its advocate,
\n(in this case the learned advocate for the petitioner, before the
\nTrial Court), as such an undertaking would affect the rights of
\nparties, and could also invite certain consequences, if it is
\nflouted.\n<\/p>\n
12.\tIn
\nthe present case, in the absence of the undertaking being recorded in
\nthe impugned orders of the Court, it is only the word of the
\nrespondent No.1 against the word of the petitioner that the Court is
\nfaced with. In such a situation,the Court will not enter into the
\narena of disputed questions of fact.\n<\/p>\n
13.\tIn
\nBabu Ram Gupta v. Sudhir Bhasin (Supra), the
\n Supreme Court<\/a>  was dealing with the issue regarding contempt of a
\ncompromise decree. In paragraph 10 of the said judgment,certain tests
\nhave been laid down,  which are extremely pertinent for the decision
\nof the case in hand. The relevant extract is reproduced below:\n<\/p>\n
\t 10.\n<\/p>\n
*****     *****    *****   ******\n \n\n\n\tIn\n<\/pre>\n
the absence of any  express undertaking given by the appellant or any
\nundertaking incorporated in the order impugned, it will be difficult
\nto hold that the appellant wilfully  disobeyed or committed breach of
\nsuch an undertaking. What the High Court appears to have done is that
\nit took the consent order passed which was agreed to by the parties
\nand by which a receiver was appointed, to include an undertaking
\ngiven by the contemner to carry out the directions contained in the
\norder. With due respects, we are unable to agree with this view taken
\nby the High Court. ************************** In these circumstances,
\nwe are satisfied that unless there is an express undertaking given in
\nwriting before the court by the contemner or incorporated by the
\ncourt in its order,there can be no question of wilful disobedience of
\nsuch an undertaking. In the instant case, we have already held that
\nthere is neither any written undertaking filed by the appellant nor
\nwas any such undertaking impliedly or expressly incorporated in the
\norder impugned. Thus, there being no undertaking at all the question
\nof breach of such undertaking does not arise.\n<\/p>\n
14.\tApplying
\n the principles  of law  enunciated by the Supreme Court to the
\npresent case, it is the admitted position that  no express
\nundertaking has been been given in writing by the petitioner or his
\nlearned advocate before the Trial Court. It is also clear that the
\ndate of the undertaking(if any), its nature, contents,terms and
\nduration, have not been recorded by the Trial Court. It cannot,
\ntherefore, be decided whether the petitioner has fully or
\npartially,if at all, committed a breach of an undertaking. The
\nimpugned orders refer casually to an  undertaking  without any
\nfurther detail. By not clearly recording the express terms of the
\nundertaking,if given, confusion and multiplicity of litigation has
\narisen. In such circumstances, with nothing concrete to go by,the
\nimpugned orders deserve to be set aside. The Trial Court has
\ncommitted an error by not exercising jurisdiction vested in it, in
\naccordance with law.\n<\/p>\n
15.\tFor
\nthe reasons stated hereinabove, the order dated 16-9-2008 passed
\nbelow application at Exh.24 and order dated 3-11-2009 passed below
\napplication at Exh.76 are quashed and set aside,in both the
\npetitions. The petitions are partly-allowed, as above. Rule is made
\nabsolute to the above extent,in each petition.\n<\/p>\n
 \tIt
\nis clarified that the Court has not gone into  the merits of the case
\nand the Trial Court is at liberty to decide the issues before it,
\nafter hearing the parties, and in accordance with law. It is also
\nopen to the respondent No.1 to move the Trial Court for an early
\nhearing of the application at Exh.5. If so moved, the Trial Court
\nshall decide the same,as expeditiously as possible.\n<\/p>\n
\tThe
\nRecord and Proceedings   be sent back to the concerned Court.\n<\/p>\n
   \t\t           \t(Smt.Abhilasha Kumari,J)<\/p>\n
arg<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Maheshbhai vs Jagdishbhai on 13 January, 2010 Author: Abhilasha Kumari,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-128770","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nMaheshbhai vs Jagdishbhai on 13 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/maheshbhai-vs-jagdishbhai-on-13-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Maheshbhai vs Jagdishbhai on 13 January, 2010 - 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