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2004 DIGILAW 339 (GUJ)

GANESH COTTON AGENT v. GALDOS S. J.

2004-05-04

P.B.MAJMUDAR

body2004
P. B. MAJMUDAR, J. ( 1 ) THOUGH this application apparently looks as an innocuous application for recalling the order dated 11. 7. 2000, dismissing Civil Revision Application No. 1672 of 1980 for default, on closer scrutiny, it is found that the application is not bona fide and genuine. Normally, when a matter is dismissed for default by this Court, a liberal view is required to be taken, for setting aside the order, dismissing the matter for default, and for restoring the matter to file. But, so far as the facts of the present case are concerned, in my view, this is not a case in which this Court would like to exercise its discretion by allowing this Miscellaneous Civil application. ( 2 ) THE facts leading to the filing of this M. C. A. are as under :- respondent No. 1 instituted a suit, being Regular civil Suit No. 106 of 1972, which was filed in the Court of Civil Judge (Junior Division) at Bharuch. The said suit was filed against one Ganesh Cotton Agent, a partnership firm and the partners of the said firm were also joined as defendants in the said suit. Respondent no. 2 herein, Dhansukhlal Bhogilal Nanavati, was one of the partners of the said firm. Since he has died, his heirs are brought on record. There were other defendants, who were joined in the suit, with which we are not concerned in the present MCA. The said suit was filed for getting a decree for possession on the ground of sub-letting as well as on the ground of erection of permanent structure on the part of the aforesaid defendants, who were given the property in question on leasehold basis. The trial court, vide its judgment and order dated 30th September, 1978, dismissed the said suit, against which respondent No. 1 herein (original landlord) preferred an appeal, being Regular Civil Appeal no. 73 of 1978, before the District Court at Bharuch. Respondent No. 1 filed the said appeal against the present petitioners as well as respondent No. 2. ( 3 ) THE appellate court allowed the said appeal by reversing the judgment and order of the trial court and the suit of the plaintiff is accordingly decreed, with costs, all throughout. Original defendants 1, 2 and 3 (which include the present petitioners and respondent no. ( 3 ) THE appellate court allowed the said appeal by reversing the judgment and order of the trial court and the suit of the plaintiff is accordingly decreed, with costs, all throughout. Original defendants 1, 2 and 3 (which include the present petitioners and respondent no. 2 herein) and other defendants, i. e. defendants 21 and 22, were directed to hand over the vacant possession of the suit premises to the extent to which they were shown to be in the possession in the proceedings. Against the aforesaid decree of the appellate court, two civil Revision Applications were filed before this Court. So far as Civil Revision Application No. 1672 of 1980 is concerned, the same was filed by the present petitioners. So far as respondent No. 2 (another partner of the partnership firm) is concerned, he filed another revision, being Civil Revision Application No. 1748 of 1980. It is an admitted fact that both these revision applications were ordered to be heard together at the time of admitting the revisions. ( 4 ) WHEN the aforesaid matters reached final hearing before the learned single Judge on 11. 7. 2000, the Court, while dismissing the matters for default, observed as under in its order, which is at page 11 in the compilation :-". . . . . . . . . 1. These revisions u/s 29[2] of the Bombay Rent Act are very old matters of the year 1980. They were placed on the final hearing board on 12th June 2000. On that day, it was mentioned on behalf of the learned counsel for the petitioner in Civil Revision Application No. 1748/80 that the matters are probably settled. In order to ascertain whether the matter was settled and if so, to place on record the settlement, or for withdrawal of the matters, these matters were adjourned to 19th of June 2000. However, since 19th of June 2000, none of the learned counsel appearing in these matters has approached the Court either for recording the settlement or for proceeding with the matter. This is the position even today. These matters are therefore, dismissed for default. Rule discharged with no orders as to costs in Civil Revision Application No. 1672/80 and 1748/80. Interim reliefs, if any, stand vacated. . . . . . . . . . . "accordingly, both the revision applications were dismissed for default on the aforesaid date. This is the position even today. These matters are therefore, dismissed for default. Rule discharged with no orders as to costs in Civil Revision Application No. 1672/80 and 1748/80. Interim reliefs, if any, stand vacated. . . . . . . . . . . "accordingly, both the revision applications were dismissed for default on the aforesaid date. Subsequently, respondent No. 2 preferred an application, being MCA No. 1952 of 2001, for restoration of CRA No. 1748 of 1980. It is interesting to note that the present petitioners were also respondents in the aforesaid revision application. Obviously, the interest of all the present petitioners and respondent No. 2 was common. Mr. R. S. Sanjanwala, learned Advocate, who is appearing in the present Miscellaneous Civil Application, also appeared in the aforesaid CRA as well as MCA No. 1952 of 2001, which was filed by respondent No. 2, for restoring the revision on record. The learned Advocate for the present petitioners accordingly gave consent for restoring the said CRA and accordingly, this Court restored the said C. R. A. by passing the following order, which is at page 13 in the compilation of the present m. C. A. :-". . . . . . . . . Heard the learned Counsel for the applicant. It is stated by the learned Counsel that Mr. R. S. Sanjanwala ("or some of the opponents") has no objection to the grant of the application. A copy of the application has also been served upon Mr. S. N. Shelat learned Counsel for other opponents. On the facts of the case, this application is granted only to the extent that Civil Revision Application No. 1748 of 1980 is restored to file and the interim relief therein is restored with effect from today. This application is accordingly disposed of with no order as to cost. . . . . . . . . . . " ( 5 ) IT is required to be noted that the fact that another revision application was dismissed for default was within the knowledge of the present petitioners themselves and within the knowledge of their Advocate, which is obvious from the earlier two orders as well as especially from the order at page 13. Mr. . . . . " ( 5 ) IT is required to be noted that the fact that another revision application was dismissed for default was within the knowledge of the present petitioners themselves and within the knowledge of their Advocate, which is obvious from the earlier two orders as well as especially from the order at page 13. Mr. Sanjanwala, who is appearing for the present petitioners, also pointed out that the fact that CRA No. 1672 of 1980 was disposed of, was already brought to the notice of the present petitioners earlier at the time when it was dismissed for default. In spite of this factual aspect, no attempt was made at that stage by the present petitioners to get their revision application restored to file. It is also clear that, earlier, both the revision applications were posted together, as, they arise from the same judgment, and the decree, under challenge in both the revisions, was the same. Subsequently, the parties placed on record consent terms before the learned single Judge in Civil revision Applicaiton No. 1748 of 1980. On the basis of the consent terms, the learned single Judge disposed of the said Civil Revision Application No. 1748 of 1980, by her order dated 13. 9. 2002. In view of the consent terms submitted in the said C. R. A. , the petitioner of that c. R. A. , who is respondent No. 2 herein, and the partner of the present petitioner, withdrew the said revision application. The copy of the settlement was also placed on record of the said case. It is not in dispute that so far as the consent terms are concerned, the present petitioner is also one of the signatories to the said consent terms, on the basis of which respondent No. 2 withdrew the revision from this Court. ( 6 ) SUBSEQUENTLY, in view of the withdrawal of the cra, the decree holder proceeded further with the pending execution application, being Execution Petition No. 17 of 2001. The present petitioners also took part in the aforesaid execution proceedings, all throughout. It seems that there is a serious dispute between the parties before the executing court in connection with the consent terms, as, it is the say of the petitioners that the original landlord-decree holder has not acted as per the consent terms arrived at between the parties. The present petitioners also took part in the aforesaid execution proceedings, all throughout. It seems that there is a serious dispute between the parties before the executing court in connection with the consent terms, as, it is the say of the petitioners that the original landlord-decree holder has not acted as per the consent terms arrived at between the parties. As against that, the say of the decree holder, who is represented by mr. D. D. Vyas, is that it is the present petitioners and respondent No. 2, who are the judgment debtors in the aforesaid suit, who have tried to flout the consent terms. In the present proceedings, this Court is not concerned with the aforesaid controversy. However, at the stage when execution proceeding is at large before the executing court, wherein the executing court is required to consider as to who is the culprit in violating the said consent terms, at that stage, the present petitioners have preferred this Miscellaneous civil Application for restoring their revision, being CRA no. 1672 of 1980. It is fairly pointed out by the learned advocates for both the sides that in the said execution petition, even evidence is recorded and even the present petitioners have also led their evidence and now, the execution petition is at the final stage of hearing, as arguments are going on. Even on this point, there is some controversy, as, according to Mr. Vyas, even the arguments are over and the matter is kept for judgment. Mr. Sanjanwala, however, submitted that even though substantial argument is over, argument of one of the advocates to the said proceeding is yet to be advanced. However, it is not necessary to examine this point in greater detail. At the aforesaid stage, this MCA has been filed by the present petitioners, with a prayer that the revision application may be restored to file, by setting aside the order by which the CRA was dismissed for default and the delay of 1287 days may be condoned. ( 7 ) THIS application is resisted vehemently by the decree holder on the ground that this is not a bona fide application and that since the present petitioners have submitted to the jurisdiction of the Executing Court and having realised that they are likely to lose in the said proceedings, ultimately, this MCA has been filed. ( 7 ) THIS application is resisted vehemently by the decree holder on the ground that this is not a bona fide application and that since the present petitioners have submitted to the jurisdiction of the Executing Court and having realised that they are likely to lose in the said proceedings, ultimately, this MCA has been filed. It is also submitted that from the same judgment of the district Court, in which the decree for possession is passed, if one revision is withdrawn and when the judgment of the District Judge is confirmed in that revision, by virtue of dismissing the same in view of the withdrawal of the said Civil Revision Application, even the present Civil Revision Application would not be maintainable. It is submitted that, if there was a bona fide intention on the part of the petitioners, they would have immediately preferred such an application for restoring the revision at the time, when another cognate revision was restored by this Court. It is, therefore, submitted that this M. C. A. is not bona fide and, therefore, the same deserves to be dismissed. ( 8 ) I have heard the learned Advocates for both the sides, in great detail, and, in my view, this miscellaneous Civil Application deserves to be dismissed, considering the facts and circumstances of the case. ( 9 ) IT is required to be noted that, during the pendency of this M. C. A. , heirs and legal representatives of deceased respondent No. 2, submitted an application before the learned single Judge, being Miscellaneous civil Application No. 688 of 2004, for restoring their revision application, which was withdrawn by them in view of the consent terms submitted before the Court. The learned single Judge of this Court, while rejecting the aforesaid Miscellaneous Civil Application filed by respondent No. 2 by her order dated 30th April, 2004, observed as under in the order :-". . . . . . . . . Heard the learned advocates. The applicants-petitioners in Civil Revision Application No. 1748 of 1980 seek recall of the order dated 13th September, 2002 made on the aforesaid Civil Revision Application No. 1748 of 1980. By the said order dated 13th September, 2002, the applicants were permitted to withdraw the Revision Application. . . . . . . . . Heard the learned advocates. The applicants-petitioners in Civil Revision Application No. 1748 of 1980 seek recall of the order dated 13th September, 2002 made on the aforesaid Civil Revision Application No. 1748 of 1980. By the said order dated 13th September, 2002, the applicants were permitted to withdraw the Revision Application. It has been submitted that the civil revision application was withdrawn pursuant to the agreement arrived at between the parties on 29th July, 2002. Under the said agreement, the plaintiff had agreed to withdraw the execution proceedings. However, the plaintiff has not withdrawn the execution proceedings and has been pursuing the same. The applicants, therefore, seek recall of the aforesaid order dated 13th September, 2002 and restoration of the Revision Application. Learned advocate Mr. Kapadia has relied upon the judgment of this Court in the matter of Soni Vrajlal Jethalal v. Soni Jadavji Govindji {decd. } and Ors. { 1972 GLR 555 }. He has submitted that such recall is permissible if the ends of justice so demand. Learned advocate Mr. Vyas has contested the application. He has submitted that the very contentions have been raised before the Executing Court. He has further submitted that it is the applicants who have failed to perform their part under the aforesaid agreement dated 29th July, 2002. No ground for recall is made out. The application is rejected. . . . . . . . . . . " ( 10 ) AFTER considering the rival submissions, the learned single Judge came to the conclusion that no ground is made out for recalling the earlier order and the said application was accordingly rejected. The effect of the said order is that so far as the aforesaid revision is concerned, viz. , CRA No. 1748 of 1980, the order of the District Court, by which the suit of the plaintiff for possession is decreed, has become final. Under these circumstances, it is required to be considered whether this M. C. A. can be allowed by restoring the revision of the present petitioners and whether any justifiable reasons are given for restoring the same. As pointed out earlier, the present petitioners very well knew that their revision application was dismissed for default moment the said order was passed by the learned single Judge. As pointed out earlier, the present petitioners very well knew that their revision application was dismissed for default moment the said order was passed by the learned single Judge. Not only that, at the time when another revision was restored on file and withdrawn by settlement, the present petitioners took part in the aforesaid proceedings. Not only that, he is even a signatory to the consent terms and at no point of time, all throughout, any attempt was made for restoring the present C. R. A. to file, and, in the meanwhile, the present petitioners appeared before the executing court and in connection with the consent terms, even he has led oral evidence before the executing court and practically, when the execution proceedings are at the fag end, at that stage, this M. C. A. is filed for recalling order dated 11-7-2000, by which C. R. A. No. 1672 of 1980 was dismissed for default, with a prayer to condone the delay of 1287 days in filing the present application. However, in my view, this is not a case in which this Court should exercise its discretion by restoring the said revision to file, especially when even the cognate revision of the present respondent No. 2 is not restored to file by the learned single Judge. Considering the fact that the interest of the petitioners and present respondent No. 2 is common and when a decree for possession passed by the appellate court is confirmed in another revision, this is not a case in which the revision filed by the present petitioners should be allowed to be restored to file, again, by setting aside the order of dismissal for default. ( 11 ) MR. SANJANWALA, at this stage, submitted that the petitioner had not approached this court earlier because the petitioners were satisfied by the said consent terms, as they were also signatories to the said consent terms, but, later on, when the decree holder tried to back out from the said consent terms, this Miscellaneous Civil application is filed. However, on this point, there is a serious dispute, as, Mr. Vyas, for the decree holder, submitted that it is the present petitioners, who tried to back out from the same. However, on this point, there is a serious dispute, as, Mr. Vyas, for the decree holder, submitted that it is the present petitioners, who tried to back out from the same. So far as the aforesaid aspect is concerned, this Court is not expected to take out evidence for finding out as to who is the erring party so far as the non-compliance with the consent terms is concerned. Suffice it to say that when the present petitioners, along with respondent No. 2, filed the consent terms, on the basis of which Civil Revision application No. 1748 of 1980 was permitted to be withdrawn, now, they cannot be permitted to file this miscellaneous Civil Application as the petitioners have accepted the said consent terms even by putting their signature on the same. The petitioners, therefore, cannot play hot and cold and cannot take undue advantage of a situation simply because the executing court might have expressed a particular view in the matter. In my view, the petitioners are estopped by their own conduct and the discretion of this Court cannot be exercised in favour of such a person, who approaches this court in the guise of an innocuous prayer for setting aside the order, dismissing the C. R. A. for default. It is true that, normally, when an ex parte order is passed, by which the matter is dismissed for default, a liberal view is required to be taken, but that would not mean that even if such an application is not filed with a bona fide intention, yet the Court is bound to restore the matter on record. Mr. Sanjanwala submitted that since revision application No. 1672 of 1980 is not decided on merits, bar of res judicata would not apply, for which he has tried to rely upon certain judgments. It is, however, required to be noted that, both the said revisions were filed against a judgment of the District Court, which is given in Civil Appeal No. 73 of 1978 and which arises out of a suit, being Regular Civil Suit No. 106 of 1972. The fact that this Court has already dismissed the said revision application by permitting the petitioner to withdraw the same, would mean that the judgment of the District Court is already confirmed in that revision. The fact that this Court has already dismissed the said revision application by permitting the petitioner to withdraw the same, would mean that the judgment of the District Court is already confirmed in that revision. Even though, it may be true that, strictly speaking, bar of res judicata may not apply to the present Miscellaneous Civil application, then also, in my view, when the petitioner is a party signatory to the consent terms in that revision application and having deliberately taken advantage of the situation by taking part in the execution proceedings and having realised that before the executing Court, perhaps he may fail, ultimately, this miscellaneous Civil Application is filed. Considering this aspect of the matter, in my view, this application cannot be said to be an innocuous application, submitted bona fide, for restoring the revision on record. It is required to be noted that the petitioners came to know about the dismissal of that revision application immediately when it was dismissed for default by the learned single Judge. This fact is practically admitted by both the sides; yet, no attempt was made by the petitioners for getting the said C. R. A. restored to file for a period of more than three-and-a-half years. In between, the petitioners took part in the execution proceedings. It is not in dispute that, all throughout, the petitioners were aware about the order passed by the learned single Judge, by which the said C. R. A. was dismissed for default. Considering the aforesaid aspect of the matter and considering the fact that, in the meanwhile, in the second revision, the petitioner, who was the respondent, appeared and signed the consent terms, and now has approached this Court by way of this m. C. A. , especially when the execution proceedings are at the concluding stage, it is clear that the attitude of the present petitioners is not bona fide. Under the circumstances, it cannot be said that it is a bona fide and honest application for restoring the said revision, being Civil Revision Application No. 1672 of 1980, to file. Under the circumstances, it cannot be said that it is a bona fide and honest application for restoring the said revision, being Civil Revision Application No. 1672 of 1980, to file. The alleged ground that the decree holder tried to back out from the consent terms, which is seriously disputed by the learned Advocate for the decree holder, is no ground by which this M. C. A. can be allowed, especially when, in a cognate revision, filed by respondent No. 2, a learned single Judge of this Court, as pointed out above, has not thought it fit even to restore the said application. ( 12 ) CONSIDERING the aforesaid factual aspect of the matter, this MCA, in my view, is not a bona fide application and under the circumstances, the order passed by this Court, by which the CRA was dismissed for default as back as on 11. 7. 2000, cannot be set aside, by restoring the revision application to file. The Court can restore a matter, even if an application is barred by a considerable time. What is required to be seen is whether the application is bona fide or not. It is absolutely clear, considering the factual aspect of the matter that this can never be said to be a bona fide application and it is merely an afterthought, as the petitioner, having realised his fate in the execution proceedings, has approached this Court as if an innocuous prayer is made for restoring the C. R. A. which was dismissed for default. The Miscellaneous Civil application is thoroughly misconceived. I, therefore, do not find any substance in this M. C. A. The same is dismissed with costs, which is quantified at Rs. 5,000/ -. It is clarified that the observations made in the present order may not be taken into consideration by the executing court while deciding the pending execution petition. Such execution petition is to be decided on its own merits without being influenced by the observations made in this order, as, the observations made herein are only in connection with deciding the present Miscellaneous Civil Application. It is also clarified that this Court has not expressed any opinion as to who is the erring party in not obeying the consent terms. All these questions are not adjudicated here in any manner. .