{"id":38640,"date":"2001-03-08T00:00:00","date_gmt":"2001-03-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhagvanbhai-keshavbhai-vs-marutkumar-rambhai-patel-on-8-march-2001"},"modified":"2016-06-15T15:08:23","modified_gmt":"2016-06-15T09:38:23","slug":"bhagvanbhai-keshavbhai-vs-marutkumar-rambhai-patel-on-8-march-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhagvanbhai-keshavbhai-vs-marutkumar-rambhai-patel-on-8-march-2001","title":{"rendered":"Bhagvanbhai Keshavbhai … vs Marutkumar Rambhai Patel on 8 March, 2001"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Bhagvanbhai Keshavbhai … vs Marutkumar Rambhai Patel on 8 March, 2001<\/div>\n
Author: A Dave<\/div>\n
Bench: A Dave<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
A.L. Dave, J.<\/p>\n
1. Rule. Mr. R.M. Chhaya waives service on behalf ` opponents No.1 to 4, Mr. Y.S. Lakhani waives service on behalf of opponent No.5, Mr. M.C. Bhatt waives service for opponents No.6, 7, and 8, and Mr. S.M. Shah waives service for opponent No.9. With the consent of learned advocates, the matter is taken up today for hearing.\n<\/p>\n
2. By preferring this Civil application, the applicant-appellant has sought indulgence of the Court to the following effect :-\n<\/p>\n
 “8. Applicant, therefore, prays that :-\n<\/p>\n
 (A) This Honourable Court may be pleased to initiate appropriate proceedings under O.39 Rule 2A of CP Code proceedings against the respondents.\n<\/p>\n
 (B) This Honourable Court may be pleased to award heavy costs for not obeying the order passed by this Honourable Court as well as the order passed while disposing of exh.5 in Special Civil Suit No.874 of 2000 decided by the learned 5th Jt. Civil Judge (S.D.), Vadodara.\n<\/p>\n
 (C) Pending hearing and final disposal of this petition, this Honourable Court may be pleased to direct the respondents, their agents and servants to restore the original position of the suit property as per the photographs produced by them annexed at Annexure “A” to this application;\n<\/p>\n
 (D) Pending hearing and final disposal of this application, this Honourable Court may be pleased to permit the applicant to put notice board on the disputed property publishing present pending litigation so as to avoid further multiplicity of proceedings;\n<\/p>\n
 (E) Pending hearing and final disposal of this application, this Honourable Court may be pleased to strike off the defence of respondents and respondents may not be heard on merits in the present case;\n<\/p>\n
 (F) Any other such and further orders as are deemed just and proper may also be passed.\n<\/p>\n
 (G) Costs of this application be kindly awarded to the applicant from the respondents.”\n<\/p>\n
The main thrust during the course of arguments advanced by learned Senior Advocate Mr. B.P. Tanna was on the aspect that the other side has no right to be heard, they having flouted the interim order passed by this court and action may be taken under Order 39, Rule 2A of the Code of Civil Procedure (CPC).\n<\/p>\n
3. To appreciate the contentions raised by the applicant and the other side, it would be necessary, at this stage, to state certain facts of the case.\n<\/p>\n
4. The applicant filed Special Civil Suit No.849 of 2000 in the Court of learned Civil Judge (S.D.), at Vadodara, for declaration and permanent injunction against the opponents restraining them from tranferring the suit property and further restraining them from putting up any construction over the said property. The suit was also for specific performance.\n<\/p>\n
5. The Trial Court initially granted ex-parte ad-interim relief in favour of the plaintiff. Subsequently, after hearing the parties, the Trial Court vacated that order and dismissed the application for interim injunction at Ex.5 by an order dated October 20, 2000. The Trial Court also extended the operation of the order passed initially to facilitate the plaintiff-appellant to prefer an appeal.\n<\/p>\n
6. Aggrieved by the order passed on October 20, 2000, below Ex.5 in the said suit by the learned 5th Joint Civil Judge (S.D.), Vadodara, the plaintiff preferred Appeal from Order No.414 of 2000 in this Court in this Court. Pending admission, this Court extended operation of the ad-interim relief granted earlier by the Trial Court. This Court, from time to time, extended that relief. While that order was in operation, it is alleged by the applicant that the respondents have flouted the orders passed by the Trial Court as well as this Court against transfer of disputed property in favour of others and, therefore, this application is preferred by the original plaintiffs-appellants requesting this Court to initiate proceedings against the defendants under Order 39, Rule 2A of CPC and it is further contended that pending hearing and final disposal of this application, the respondents may not be heard on merits “in the present case”.\n<\/p>\n
7. In order to substantiate the allegations made in the application, the applicant has relied on certain photographs and a xerox copy of invitation card to indicate that property is transferred by defendants to others and is put into use by those others.\n<\/p>\n
8. Learned Senior Counsel, Mr. Tanna, submitted that the photographs at Annexure-B and C are in two parts – one part indicates that the shops are closed and no sign boards are there. These are photographs which were produced by the defendants in the Trial Court to indicate that the building is constructed. Thereafter, the shops are transferred and the transferees have displayed their sign board which would indicate that despite the order of the Court, the property is transferred to others by the defendants. Drawing attention to Annexure-A, Mr. Tanna submitted that the Mercantile Co-operative Credit Society Limited inaugurated its office in the suit property on 15.10.2000 and, therefore, the defendants have committed a breach of injunction and they must be strongly dealt with. In order to appreciate his arguments, Mr. Tanna has relied upon the following decisions :-\n<\/p>\n
(1) Nitinkumar Pramodbhai Pandya v. Spenta Colour Lab Pvt. Ltd. and Anr., 1996(11) GLr 14.\n<\/p>\n
(2) Hiralal Hargovinddas v. Popatlal Sankalchand Patel & Another, AIR 1969 Gujarat 28.\n<\/p>\n
(3) Thakorlal Parshottamdas Bhavsar v. Chandulal Chunilal Bhavsar, 7 GLR 970.\n<\/p>\n
(4) Noorali Babul Thanewala v. K.M.M. Shetty & Others,<\/a> 1990 (1) SCC 259.\n<\/p>\n
(5) Tayabbhai M. Bagasarwalla & Another v. Hind Rubber Industries Pvt. Ltd., AIR<\/a> 1997 SC 1240.\n<\/p>\n
(6) Samee Khan v. Bindu Khan, AIR<\/a> 1998 SC 2765.\n<\/p>\n
(7) B.M. Bhattacharjee & Anr. v. Russel Estate Corporation and another, AIR 1963 SC 1632.\n<\/p>\n
8.1. Mr. Tanna has taken this Court through the affidavit in reply filed by Chandubhai Valjibhai Patel, respondent No.5, and the supporting documents produced by the respondents. He submitted that the affidavit as well as the documents are nothing but an eye-wash. There are no documents to show that a legal and valid transfer was made in respect of the property in the Mercantile Co-operative Credit Society Limited is opened, which is claimed to have been transferred prior to the order of this Court to one Savitaben. Mr. Tanna even contended that it was the duty of the defendants to ensure that no further transfer takes place even by the transferee. Mr. Tanna has drawn attention further to the fact that there are no documents to indicate transfer of property to one Chandubhai and Nitaben. He submitted that though in technical sense this is not a contempt as contemplated under the Contempt of Courts Act, yet it is a contempt and strong action may be taken against the defendants-respondents.\n<\/p>\n
9. Mr. S.M. Shah, learned advocate appearing for respondent No.9, has opposed this application. According to him, the application, if read, does not disclose any detail as to who committed the breach of the order and when it was committed. According to him, these two are material details which are required for proper adjudication of questions that have penal implications. Mr. Shah submitted that in absence of any specific case, no inference can be drawn against the respondents. He submitted that, although this is a civil proceeding, it being of a penal nature, strict proof of the allegations is necessary and there is nothing to indicate as to out of the respondents, who committed breach and when and in respect of which property? He submitted further, that such details are necessary to decide whether this Court will have jurisdiction to entertain this application? If the transfer is made prior to preferring the appeal, this Court will have no jurisdiction. He, therefore, urged that this application may be rejected.\n<\/p>\n
10. Mr. M.C. Bhatt, learned advocate appearing for opponents No.6, 7 and 8 submitted that this is a case of gross misuse of process of law. This is nothing but a malicious application preferred by the plaintiff only to have continuance of an order obtained ex-parte and then got continued from time to time. Mr. Bhatt has drawn attention of this court to the fact that the suit is for specific performance of an agreement to sell which is not even registered and alleged to have been executed by defendants No.1, 2, 3 and 4. The suit is preferred on the 19th September, 2000. Till then, no action is taken. The plaintiff waited till the construction is done. Thereafter, he preferred the suit. The documents relied upon while obtaining ad-interim ex-parte order before the Trial Court, namely, abstracts of village form No.7 and 12, are very old. Defendants No.1, 2, 3 and 4 are acting in collusion with the plaintiffs. The agreement to sell in favour of defendants No.5, 6 and 7 was executed on the 27th June, 1994 and, thereafter, in November 1999, the sale deed was also executed. Till then, no action is taken by the plaintiff on the basis of the unregistered agreement to sell. It is also contended by Mr. Bhatt that, if the prayer clause is seen, it is in respect of “suit property” and that suit property is only the land and not the building. Mr. Bhatt also contended that the transfer will have to be taken to mean transfer as contemplated under Section 5 of the Transfer of Properties Act, whereas that is not the case of the plaintiff-applicant, if the relief clause in Ex.5, application for temporary injunction, is seen.\n<\/p>\n
10.1. Mr.Bhatt submitted that the present application is vague and non-specific. The order came to be passed only on the 20th October, 2000, by this Court. As against this, if the invitation card is seen, the inauguration took place on the 15th October, 2000 and, therefore, it cannot be said that the defendants have committed any breach of order by this Court. The jurisdiction would lie with the Trial Court, if at all it is found that any such breach is committed. Mr. Bhatt submitted that the defendants have come out with specific case that the transfers were by registered documents in favour of the allottees. The defendants have sworn an affidavit to that effect and for most of the transactions, registered documents are also produced. In absence of any specific allegation of transfer in respect of a specific property by a specific person, it cannot be said that a breach of injunction order is indicated or proved by the applicants who seek initiation of an action against the defendants. Mr. Bhatt submitted that the documents indicate that the transactions have taken place prior to the institution of the suit. He also submitted that a judicial notice can be taken of a fact that shops or offices are not started immediately on getting the possession. Certain infrastructure has to be made which would require time. This would also indicate that the transfer was not recent as alleged.\n<\/p>\n
11. Mr. Lakhani, learned advocate appearing for opponent No.5 submitted that he adopts the contentions raised and arguments advanced by Mr. Shah as well as Mr. Bhatt.\n<\/p>\n
12. Mr. R.M. Chhaya, learned advocate appearing for opponents No.1, 2, 3 and 4 has chosen not to contest this application as nothing is alleged against his clients.\n<\/p>\n
13. Having regard to the contentions raised by the parties, it is very clear from the reliefs sought by the applicant that this is an application seeking indulgence of the Court for initiating appropriate proceedings under order 39, Rule 2A of the CPC and awarding heavy costs for not obeying the orders of this Court. Further, seeking direction on the respondents to restore the original position of the suit property and to permit the applicant to put a notice board on the disputed property indicating pendency of the present litigation. It is then urged that pending hearing and final disposal of this application, the other side may not be heard on merits. It is this prayer which was more concentrated by the applicants. However, apparent as it is, the application has been argued on merits as well.\n<\/p>\n
14. A look at Order 39, Rule 2A would indicate that the Court is empowered to attach the property of the person guilty of any disobedience or breach of the order made under Rule 1 or Rule 2 of Order 39. The Court may also order detention of such person in civil prison for a term not exceeding three months unless in the meantime the Court directs his release. This makes it clear that this provision is of a penal nature and, therefore, although broadly speaking it is a civil proceeding, the party seeking indulgence of the Court under this provision must strictly plead and prove the case of breach of order of the Court. It is also clear from Order 2A that it is the Court whose order is breached which will have jurisdiction to proceed under this provision or the Court to which the suit or the proceeding is transferred will have such jurisdiction.\n<\/p>\n
15. Therefore, it will have to be indicated by the applicant that it was the order of this Court that was committed breach of by the defendants. For that purpose, it will have to be specifically indicated as to when the breach was committed and by which of the opponents. Unless that is indicated, no action can be taken on basis of a general allegation. Principle of vicarious liability or collective liability cannot be applied in such cases having penal implications. In the instant case before this Court, there are 9 defendants. The allegations are of general nature and despite a close scrutiny, this Court is not able to identify any specific allegation against any of the opponents regarding breach of the order of this Court. There is nothing to indicate as to when the breach was committed and, therefore, it is not possible to accept this application and to initiate any action against the opponents.\n<\/p>\n
16. The applicant seeking indulgence of the Court has to make out his own case on the strength of his own pleadings and evidence and no attempt can be entertained of taking any advantage of any weakness in the case of the defendants when the action to be taken is of a penal nature and, therefore, even if what is contended by the applicant that the documents produced in support of the affidavit in reply filed by Chandubhai Valjibhai Patel-opponent No.5 are not in respect of the properties is accepted to be true, it cannot help the applicant. However, it would not be out of place to note here that the documents which are produced are in respect of most of the properties in respect of which the allegation is made of breach of order. It was contended that all documents are stereotype. This by itself cannot raise any presumption against authenticity of these documents particularly when the documents are indicated to be registered. In this age of computers, having similar documents cannot be considered uncommon. It was contended that there is no registered document to indicate transfer of property to Savitaben. It is true that no registered document is produced but a ‘Kabja Pavti’ is produced which is dated 1.9.2000. Stamp paper was purchased on 8.8.2000 whereas the suit is filed on the 19th September, 2000. At that point of time, probably, nobody anticipated filing of the suit and, therefore, at this stage, while considering the question for fixing penal responsibility, such documents cannot be relied upon. At this stage, it would be appropriate to note that a correspondence with the Mercantile Co-operative Credit Society Limited entered into by Savitaben has also been produced which is also of a prior date and, therefore also, this Court is not inclined to accept this contention.\n<\/p>\n
17. It would also be interesting to note that the Trial Court on the 20th October, 2000, passed the following operative order :-\n<\/p>\n
  “Exh.5 is hereby dismissed.  Ex-parte order of status quo granted is hereby vacated. Costs in cause. Pronounced in open Court today on this 20th day of October 2000.”\n<\/p>\n
On that very day, the plaintiff gave an application after the passing of that order to the Trial Court that he proposes to proceed further against the order and, therefore, the order passed below Ex.5, initially, may be continued for a period of 30 days and further to suspend the operation of the order passed on that day, that is on the 20th October, 2000. In that application, the Trial Court passed the following order :-\n<\/p>\n
  “H. As plaintiff wants to refer appeal, order passed below Ex.5 finally is hereby suspended for 15 days hereof.The plaintiff to prefer positively appeal within that period. No order as to costs.”\n<\/p>\n
Thereafter, on the 2nd November, 2000, again further extension was sought before the Trial Court by the plaintiff for suspension of operation of order below Ex.5 passed on the 20th October, 2000 and extension of ex-parte order granted, initially, by the Trial Court.\n<\/p>\n
17.1. It was contended by Mr. Bhatt that on the 20th October, 2000, the Trial Court suspended operation of the order passed on that day but did not extend the operation of ad-interim ex-parte order passed and, as such, even if transfer is made subsequent thereto and before passing of any order by this Court, it cannot be considered as a breach of order and the plaintiff-appellant has to show as to when such transfer was made. Keeping all these aspects, this Court is of a view that applicant has failed to make out a case for taking an action as contemplated under Order 39, Rule 2A of CPC.\n<\/p>\n
18. Much was argued about the photographs. The photographs at Annexure-B which are produced by the defendants while filing reply to Ex.5 Application to indicate that building was constructed and, subsequently, the photographs at Annexure-C are produced to show that properties have been transferred and put into use by other persons. In this regard, it must be noted that the applicants have failed to indicate as to when were the photographs at Annexure-C were taken. Unless that is indicated, it would not be possible for this Court to decide as to whether this Court will have jurisdiction. Apart from this, a reasonable explanation is coming from the opponents supported by documents to indicate that the properties in question were transferred prior to the passing of the order and in absence of any cogent evidence to the contrary, this Court is not inclined to take such an action as prayed by the applicants. This cannot carry the case of the applicant any further.\n<\/p>\n
19. The applicant has failed to specifically indicate any breach of the order of this Court having been committed by a specific defendant at a specific time which would give jurisdiction to this Court to entertain such an application. The application is, therefore, dismissed. Rule discharged. No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Bhagvanbhai Keshavbhai … vs Marutkumar Rambhai Patel on 8 March, 2001 Author: A Dave Bench: A Dave ORDER A.L. Dave, J. 1. Rule. Mr. R.M. Chhaya waives service on behalf ` opponents No.1 to 4, Mr. Y.S. Lakhani waives service on behalf of opponent No.5, Mr. M.C. Bhatt waives service for opponents […]<\/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-38640","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nBhagvanbhai Keshavbhai ... vs Marutkumar Rambhai Patel on 8 March, 2001 - 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\/bhagvanbhai-keshavbhai-vs-marutkumar-rambhai-patel-on-8-march-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bhagvanbhai Keshavbhai ... vs Marutkumar Rambhai Patel on 8 March, 2001 - 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