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2016 DIGILAW 820 (GUJ)

Hardik Harshadbhai Patel v. Amarsang Nathaji

2016-04-13

B.M.TRIVEDI

body2016
JUDGMENT : B.M. Trivedi, J. 1. The present Appeal from Order is directed against the order dated 17.12.2013 passed by the Principal Sr. Civil Judge, Ahmedabad (Rural) (hereinafter referred to as "the trial Court") below Exh.5 in Special Civil Suit No. 28/2012, whereby the trial Court has dismissed the said Application Exh.5 filed by the appellant - plaintiff. 2. The chronology of the events as emerging from the documents on record and from the paper-book submitted by the learned Counsel for the parties may be narrated as under:- (i) On 12.6.2007, the respondent No. 1 - defendant No. 1, Amarsang Nathaji allegedly executed a registered agreement to sell his 1/2 share in the land bearing Block No. 97, admeasuring 12697 sq. mtr., in favour of the appellant - plaintiff for a total consideration of Rs. 2,25,500/-. It was stated in the said agreement, inter alia, that the appellant - plaintiff had paid Rs. 1,25,500/- and that he had to pay the remaining amount, on the respondent No. 1 executing the sale deed in his favour. The validity of the said agreement was agreed to be for 12 months. It was also agreed that the respondent No. 1 would have to sign all the documents necessary for obtaining the permissions required under different Acts at the instance of the appellant, and that the possession of the land in question under the agreement would be handed over to the appellant on the execution of the sale deed. (ii) On the same day i.e. on 12.6.2007, a supplementary agreement was allegedly entered into between the appellant and the respondent No. 1, stating, inter alia, that the possession of the land was handed over to the appellant. On the same day, other documents i.e. indemnity bond and declaration as well as general power-of-attorney and specific power-of-attorney were also allegedly executed by the respondent No. 1 in favour of one Mangaji Babaji Thakor for carrying out the acts and deeds as mentioned therein in respect of his 1/2 share in the said Block No. 97. (iii) On 14.6.2007, the respondent Nos. 2/1 to 2/6 (defendant Nos. 2/1 to 2/6) allegedly executed a registered agreement in favour of the appellant - plaintiff in respect of the remaining 1/2 share in the land bearing Block No. 97, admeasuring 12967 sq. mtr., for the sale consideration of Rs. (iii) On 14.6.2007, the respondent Nos. 2/1 to 2/6 (defendant Nos. 2/1 to 2/6) allegedly executed a registered agreement in favour of the appellant - plaintiff in respect of the remaining 1/2 share in the land bearing Block No. 97, admeasuring 12967 sq. mtr., for the sale consideration of Rs. 2,25,000/- with similar terms and conditions as mentioned in the agreement dated 12.6.2007 executed by the respondent No. 1. The respondent Nos. 2/1 to 2/6 also allegedly executed similar other documents as were executed on 12.6.2007 in favour of the appellant in respect of the remaining 1/2 portion of the land in question. (iv) On 17.12.2009, the District Collector, Ahmedabad granted permission to convert the said land bearing Block No. 97 (along with another land bearing Block No. 107) from new tenure to old tenure for agricultural purpose, on the payment of premium of Rs. 1,53,57,650/- at the instance of the application made by the respondent No. 1. (v) On 15.12.2009, one sale deed came to be executed by the respondent No. 3 Sanjaybhai Jayantibhai Patel as the power-of-attorney holder of the respondent No. 1 and of the respondent Nos. 2/1 to 2/6, in favour of respondent Nos. 4 and 5, in respect of the said land bearing block No. 97 (along with block No. 107). The said sale deed was registered on 17.12.2009 in the office of Sub-registrar, Ahmedabad. (vi) On 25.4.2011, a public notice came to be issued in the newspaper at the instance of respondent Nos. 4 and 5, inviting objections in respect of the title of Block Nos. 97 and 107. (vii) On 30.4.2011, the District Collector, Ahmedabad passed the order, permitting the respondent No. 5 to use the land bearing Block Nos. 97 and 107 for non-agricultural purpose on the payment of premium of Rs. 6,91,02,000/-. (viii) On 12.1.2012, the suit being Special Civil Suit No. 28/2012 came to be filed by the appellant - plaintiff seeking specific performance of the agreements dated 12.6.2007 and 14.6.2007 executed by the respondent No. 1 and the respondent Nos. 2/1 to 2/6 respectively and for setting aside the sale deed dated 17.12.2009 executed by the respondent No. 3 as power-of-attorney holder of the respondent No. 1 and the respondent Nos. 2/1 to 2/6, in favour of the respondent Nos. 4 and 5. (ix) Somewhere in February 2012, the respondent Nos. 3 to 5 (defendant Nos. 2/1 to 2/6 respectively and for setting aside the sale deed dated 17.12.2009 executed by the respondent No. 3 as power-of-attorney holder of the respondent No. 1 and the respondent Nos. 2/1 to 2/6, in favour of the respondent Nos. 4 and 5. (ix) Somewhere in February 2012, the respondent Nos. 3 to 5 (defendant Nos. 3 to 5) filed the written statement at Exh.14 in the said suit. (x) On 5.3.2012, the appellant - plaintiff filed his rejoinder to the said written statement of the respondent Nos. 3 to 5. (xi) On 15.3.2012, the trial Court closed the right of the respondent No. 1 and the respondent Nos. 2/1 to 2/6 to file the written statements. (xii) On 3.4.2012, the trial Court, on the application made by the said respondents set aside the order dated 15.3.2012 and permitted the said respondents - defendants to file their written statements. (xiii) On 9.4.2012, the written statement of the respondent No. 1 - defendant No. 1 was taken on record, which was exhibited as Exh.20 In the said written statement the respondent No. 1 admitted all the allegations and averments made in the plaint. He also filed one declaration dated 26.3.2012, which was notarized before the Notary in support of the said written statement. (xiv) On 17.12.2013, the trial Court dismissed the application at Exh.5 of the appellant -plaintiff, seeking temporary injunction, pending the suit. (xv) On 21.12.2013, the present Appeal from Order was filed by the appellant - plaintiff. (xvi) On 23.12.2013, an ex parte order of status-quo was passed by this Court, which has been continuing till this date. (xvii) On 30.1.2014, the respondent Nos. 3 to 5 produced one list at Exh.40 before the trial Court along with some documents, including the affidavits filed by the respondent No. 1 - defendant No. 1 and by the respondent No. 2/2 - defendant No. 2/2, whereby the said respondents denied the execution of the agreements in favour of the appellant - plaintiff, and admitted the execution of the sale deed in favour of the respondent Nos. 4 and 5. (xviii) On 18.2.2014, the respondent No. 1 - defendant No. 1 filed an application at Exh.43 before the trial Court with a prayer to de-exhibit the written statement filed by him earlier at Exh.20 and for taking on record another written statement, which was produced along with the said application at Exh. 4 and 5. (xviii) On 18.2.2014, the respondent No. 1 - defendant No. 1 filed an application at Exh.43 before the trial Court with a prayer to de-exhibit the written statement filed by him earlier at Exh.20 and for taking on record another written statement, which was produced along with the said application at Exh. 43. (xix) On 21.3.2014, the respondent No. 4 filed an affidavit in reply in Civil Application No. 13542 of 2012 in the present Appeal from Order and also produced therewith other documents including the affidavit of the respondent No. 1. In the said affidavit, the respondent No. 1 has denied the execution of the alleged agreement and other documents in favour of the appellant - plaintiff. (xx) On 7.5.2015, the trial Court rejected the said application of the respondent No. 1 at Exh.43. The said order has remained unchallenged so far. 3. From the afore-stated facts, it appears that the appellant - plaintiff has filed the suit, seeking specific performance of the agreements in question allegedly executed by the respondent No. 1 and by the respondents No. 2/1 to 2/6, and for setting aside the sale deed executed in favour of the respondent Nos. 4 and 5, alleging inter alia that the appellant had paid Rs. 1,25,500/- for each of the agreements executed by the respondent No. 1 and by the respondent Nos. 2/1 to 2/6, who had agreed to sell their respective 1/2 share of the land in the Block No. 97. According to the appellant, the said agreements were registered on 12.6.2007 and 14.6.2007 respectively and the necessary documents in support of the said agreements were also executed by the said respondents - defendants. It is also the case of the appellant - plaintiff that the said respondent No. 1 and respondent Nos. 2/1 to 2/6 had to obtain necessary permissions for converting the said land, from new tenure to old tenure after making payment of premium amount, for which the appellant - plaintiff had time and again requested him, however, in December 2011, the respondent Nos. 4 and 5 had come to the site of the said land and asked the appellant to give the possession of the said land to them. The appellant - plaintiff thereafter having made search had come to know that the respondent No. 3 as power-of-attorney holder of the respondent No. 1 and of the respondent Nos. 4 and 5 had come to the site of the said land and asked the appellant to give the possession of the said land to them. The appellant - plaintiff thereafter having made search had come to know that the respondent No. 3 as power-of-attorney holder of the respondent No. 1 and of the respondent Nos. 2/1 to 2/6 had executed the sale deed in favour of the respondent Nos. 4 and 5 and, therefore, the suit was filed. 4. The respondent Nos. 3 to 5 - defendant Nos. 3 to 5 had filed the written statements at Exh.14 denying the allegations made in the plaint, and further contending, inter alia, that the suit was filed by the appellant - plaintiff after the gross delay of 4 1/2 years after the execution of the alleged agreements. It was also contended that the sale consideration as mentioned in the agreements in question was absolutely inadequate and the appellant had not taken any action for obtaining any permission, whereas the said respondents had paid huge amount of premium for converting the land from new tenure to old tenure, which amount was to be adjusted against the sale consideration, as mentioned in the sale deed in question. It was also contended that the appellant - plaintiff had suppressed material facts in the plaint, inasmuch as the land being of restricted tenure, the execution of any agreement to sell the same was barred under Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Tenancy Act"). 5. The respondent No. 1 - defendant No. 1 initially had not filed the written statement in the said suit. After his right to file the written statement was closed, he made an application to permit him to file the written statement. The same having been granted by the trial Court, the defendant No. 1 on 9.4.2012 filed the written statement at Exh.20, dated 26.3.2012 admitting the execution of the registered agreement dated 12.6.2007 and other documents in favour of the appellant - plaintiff. The said written statement was filed with the signature of the respondent No. 1 through his Advocate, Ms. Trupti Patel. He also filed an affidavit at Exh. 21 and the list of document Exh. 22 containing the declaration in support of the said written statement. The said written statement was filed with the signature of the respondent No. 1 through his Advocate, Ms. Trupti Patel. He also filed an affidavit at Exh. 21 and the list of document Exh. 22 containing the declaration in support of the said written statement. However, subsequently after the impugned order dated 17.12.2013 was passed by the trial Court, the respondent No. 1 filed an application at Exh.43 on 18.2.2014 before the trial Court praying for de-exhibiting the said written statement at Exh.20 and seeking permission to file another written statement, alleging, inter alia, that the said Ms. Trupti Patel was not engaged by him and that she was not instructed to file any written statement on his behalf. Of course, the trial Court rejected the said application at Exh.43 of the respondent No. 1, which order has remained unchallenged so far. The respondent No. 2 - defendant No. 2 did not file any written statement before the trial Court. All these documents have been produced and relied upon by the learned Advocates for the parties in the present Appeal from Order also. 6. It is pertinent to note that so far as present Appeal from Order is concerned, the respondent Nos. 4 and 5 had contested the Civil Application filed by the appellant - plaintiff, by filing the reply, and by producing the affidavits of the respondent Nos. 1 and 2/2. The respondent No. 1 has stated in his affidavit dated 30.1.2014 produced along with the said reply filed by the respondent Nos. 4 and 5 that he had never executed any agreement or other documents in favour of the appellant - plaintiff and that one Bipinbhai, who was politically very influential person, had fraudulently got certain documents executed from him by giving threats, and that he had come to know about the said documents when the suit was filed by the appellant - plaintiff, who happens to be the nephew of the said Bipinbhai. It has been further stated that the land in question was sold out to the respondent Nos. 4 and 5 by executing the registered sale deed. 7. Relying upon the afore-stated pleadings of the parties, the learned Sr. Counsel, Mr. Soparkar appearing with learned Advocate Ms. Megha Jani for the appellant, submitted that the respondent Nos. It has been further stated that the land in question was sold out to the respondent Nos. 4 and 5 by executing the registered sale deed. 7. Relying upon the afore-stated pleadings of the parties, the learned Sr. Counsel, Mr. Soparkar appearing with learned Advocate Ms. Megha Jani for the appellant, submitted that the respondent Nos. 1 and 2/1 to 2/6, who were the original owners of the entire Block No. 97, had executed the two agreements in question, in respect of their respective 1/2 share in favour of the appellant - plaintiff and had also executed further documents while handing over the possession of the said land. According to Mr. Soparkar, no cause of action for filing the suit had arisen till the public notice was given by the respondent Nos. 4 and 5, inasmuch as the respondents - owners had to obtain the necessary permission for converting the land in question from new tenure to old tenure. He also submitted that the respondent No. 1 had filed the written statement Exh.20, admitting the execution of the agreement and other documents in favour of the appellant - plaintiff. His application Exh.43 for de-exhibiting the said written statement was rejected by the trial Court, which order has remained unchallenged till this date and, therefore, the second written statement sought to be filed by the respondent No. 1 after the passing of the impugned order by the trial Court, could not be looked into. Pressing into service the Explanation to Section 25 of the Indian Contract Act, he submitted that the agreement could not be said to be void merely because the consideration was allegedly inadequate. He has relied upon the decision of this Court in the case of Mavjibhai Dharsibhai & Ors. Vs. State of Gujarat & Ors., reported in 1994(2) GLR 1168 in this regard. Mr. Soparkar also submitted that though there was bar on the execution of the agreement in respect of the restricted tenure land under Section 43 of the Tenancy Act, such agreement would be, at the most, invalid and could not be said to be a void agreement. He further submitted that whether any fraud was committed on the respondent No. 1 or not would be a matter of evidence, and could not be decided at this stage. He further submitted that whether any fraud was committed on the respondent No. 1 or not would be a matter of evidence, and could not be decided at this stage. He has also relied upon the decision of the Full Bench of this Court in the case of Shah Jitendra Nanalal, Ahmedabad Vs. Patel Lallubhai Ishverbhai, Ahmedabad and Ors., reported in 1985 GLH 53 ; and the decisions in the case of Premiben Durlabhbhai Patel Vs. Sumanbhai Premabhai Patel (Dhodia), reported in LAWS(GJH) 2010-11-128; and in the case of Legal Heirs of Karamsibhai Maijibhai & Ors. Vs. Somiben W/o Haribhai Jelabhai & Ors., decided on 2.7.2009 in Special Civil Application No. 17525 of 2003, in support of his submission that now the necessary permissions have already been granted, however, even otherwise the conditional decree for specific performance could be passed by the Courts, subject to getting necessary permission from the concerned authorities. As regards the readiness and willingness of the appellant to perform his part of contract, he submitted that time was not made essence of the contract and in any case, the appellant had time and again orally called upon the respondent No. 1 to execute the sale deed but he had failed to do so. He has relied upon the decision of the Apex Court in the case of Syed Dastagir Vs. T.R. Gopalakrishna Shetty, reported in (1999) 6 SCC 337 , to buttress his submission that in construing a plea in any pleading, the Court must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. According to him, on the meaningful reading of the plaint, it was made out by the appellant - plaintiff that he was always ready and willing to perform his part of contract. 8. However, the learned Sr. Counsel Mr. Mihir Thakore for the respondent Nos. 1 and 2/1 to 2/6, relying upon the subsequent affidavits filed by the said respondents, which are on record produced along with the reply to the Civil Application filed by the respondent Nos. 8. However, the learned Sr. Counsel Mr. Mihir Thakore for the respondent Nos. 1 and 2/1 to 2/6, relying upon the subsequent affidavits filed by the said respondents, which are on record produced along with the reply to the Civil Application filed by the respondent Nos. 4 and 5, submitted that the respondent No. 1 was defrauded by one Bipinbhai, who happens to be the uncle of the appellant - plaintiff and the documents in question, including the agreements were got executed from the said respondents - owners by giving them threats. He also submitted that the first written statement at Exh. 20 was filed on behalf of the respondent No. 1 by the Advocate, who had no instruction to file such written statement, and the relative of respondent No. 1 had also cheated the respondent No. 1 by engaging such Advocate, who was in collusion with the appellant - plaintiff. According to him, the said respondent - owners had never executed the documents in favour of the appellant - plaintiff, but had executed the registered sale deed in favour of the respondents No. 4 and 5 only. 9. The learned Sr. Counsel, Mr. Mihir Joshi appearing with learned Advocate Mr. Tattvam Patel, for the respondent Nos. 3 to 5, taking the Court through the orders passed by the District Collector, granting permission to the respondents to initially convert the land in question from new tenure to old tenure for agricultural purpose and thereafter, to use the same for non-agricultural purpose, submitted that the respondent Nos. 4 and 5 had spent crores of rupees by making the payment of premium for such permissions, as against that the appellant - plaintiff had never taken any action for more than 4 1/2 years for obtaining the said permissions, nor had even shown any willingness to pay the said premium amount. He further submitted that considering the price of the land as per the jantri valuation, the amount of sale consideration agreed to be paid by the appellant was too meagre and inadequate. Even otherwise there being a bar against entering into any agreement for sale in respect of the land, which was a restricted tenure, the agreements in question were invalid under Section 43(2) of the Tenancy Act. He also submitted that as per the panchnama, the possession was with the respondent Nos. 4 and 5. Even otherwise there being a bar against entering into any agreement for sale in respect of the land, which was a restricted tenure, the agreements in question were invalid under Section 43(2) of the Tenancy Act. He also submitted that as per the panchnama, the possession was with the respondent Nos. 4 and 5. He also drew the attention of the Court to the plaint for submitting that the appellant - plaintiff had failed to make any averment as regards his readiness and willingness to perform his part of contract as contemplated in Section 16(3) of the Specific Relief Act, 1963. He also relied upon the decisions of the Apex Court in the case of Abdul Khader Rowther Vs. P.K. Sara Bai and Ors., reported in AIR 1990 SC 682 (equivalent: (1989) 4 SCC 313 ); and in the case of K.S. Vidyanadam & Ors. Vs. Vairavan, reported in (1997) 3 SCC 1 , to submit that in absence of specific averment with regard to readiness and willingness, the suit for specific performance of the contract was not maintainable. 10. Since various issues have been raised by the learned Advocates for the parties regarding the maintainability of the suit and the validity of the agreements in question, it would be apposite to deal with the relevant provisions contained in the Specific Relief Act, the Contract Act and the Tenancy Act. As per Section 9 of the Specific Relief Act, where any relief is claimed for the specific performance of the contract, the person against whom the relief is claimed may plead by way of defence any ground, available to him under any law relating to contracts. Hence, the grounds available under the Contract Act by way of defence, could be pleaded by the defendants in the suit for specific performance of the contract filed against them, in view of Section 9 of the said Act. There is a personal bar to the relief for specific performance of the contract in Section 16 of the Specific Relief Act. The relevant part thereof is reproduced as under:- "16. Personal bars to relief. There is a personal bar to the relief for specific performance of the contract in Section 16 of the Specific Relief Act. The relevant part thereof is reproduced as under:- "16. Personal bars to relief. - Specific performance of a contract cannot be enforced in favour of a person- (a) who would not be entitled to recover compensation for its breach; or (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation. - For the purposes of clause (c),- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction." 11. From the bare reading of Section 16(c), it appears that the specific performance of contract cannot be enforced in favour of a person, who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, which were to be performed by him. The law is also well settled since 1968, when the Apex Court in the case of Prem Raj Vs. The D.L.F. Housing and Construction (P) Ltd. and Anr., reported in AIR 1968 SC 1355 held, inter alia, that in a suit for specific performance, the plaintiff should allege that he is ready and willing to perform his part of the contract and in absence of such allegation, the suit is not maintainable. The said view has been followed from time to time till this date. It has also been held in the case of Coromandel Indag Products Pvt. Ltd. Vs. The said view has been followed from time to time till this date. It has also been held in the case of Coromandel Indag Products Pvt. Ltd. Vs. Garuda Chit and Trading Company Pvt. Limited and Anr., reported in (2011) 8 SCC 601 that under Section 16(c) of the Specific Relief Act, it is incumbent on the party, who wants to enforce the specific performance of the contract, to aver and prove that he has performed and has always been ready and willing to perform the essential terms of the contract. 12. In the light of the aforesaid position, if the facts of the present case are appreciated, it appears that there is no averment made in the plaint to the effect that the appellant - plaintiff was ready and willing to perform his part of contract. However, it was sought to be submitted by Mr. Soparkar for the appellant that there cannot be any straight-jacket formula for determining the readiness and willingness of the appellant - plaintiff, and the same has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. He has placed heavy reliance on the decision in the case of Syed Dastagir Vs. T.R. Gopalakrishna Shetty (supra), in which it has been observed in paragraph 9 as under:- "9. So whole gamut of issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid Section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of ones case for a relief. Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting a plea. Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting a plea. In India most of the pleas are drafted by counsels hence aforesaid difference of pleas which inevitably differ from one to other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test, whether he has performed his obligations one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. Same plea may be stated by different persons through different words then how could it be constricted to be only in any particular nomenclature or word. Unless statute specifically require for a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of Readiness and willingness has to be in spirit and substance and not in letter and form. So to insist for mechanical production of the exact words of an statute is to insist for the form rather than essence. So absence of form cannot dissolve an essence if already pleaded. 13. At this juncture, it may be noted that the forms of pleadings have been appended as Appendix 'A' in Civil Procedure Code, and Form Nos. 47 and 48 relate to the specific performance. Order VI Rule 3 mandates that the forms in Appendix-A when applicable, and where they are not applicable, forms of the like character, as nearly as may be, shall be used for all pleadings. In the instant case, as stated herein above, the plaint does not contain any specific averment about the readiness and willingness on the part of the appellant - plaintiff as required under Section 16(c) of Specific Relief Act, read with the said Forms contained in the Appendix in the Civil Procedure Code. In the instant case, as stated herein above, the plaint does not contain any specific averment about the readiness and willingness on the part of the appellant - plaintiff as required under Section 16(c) of Specific Relief Act, read with the said Forms contained in the Appendix in the Civil Procedure Code. Even the pith and substance of the plaint also does not suggest that the plaintiff was ready and willing to perform his part of contract. Hence, in the opinion of Court, the suit in the present form as such would not be maintainable. It is true that the duration of the agreements in question was for 12 months and the time was not made the essence of the contract, nonetheless it is settled legal position that the contract has to be performed within the reasonable time. The beneficial reference of the decision of the Supreme Court in the case of Smt. Chand Rani (dead) by Lrs Vs. Smt. Kamal Rani (dead) by Lrs, reported in AIR 1993 SC 1742 be made in this regard. In the instant case, the learned Counsel for the appellant - plaintiff has failed to show any action or step having been taken by the appellant for obtaining necessary permissions or for getting the sale deed executed till the suit was filed, which conduct clearly indicates that he had no intention to perform his part of the contract. 14. The Court also finds substance in the submission made by the learned Sr. Counsel Mr. Mihir Joshi for the respondents No. 3 to 5, that the sale considerations fixed in the agreements in question were too meagre and inadequate as compared to the amount of premium paid by the concerned respondents for the conversion of the land from new tenure to old tenure, and for using the same for non-agricultural purpose, as no owner would be ready to accept the consideration in lacs, when the obligation to obtain necessary permissions was on him and for which he was required to pay consideration in terms of crores of rupees. Of course, the agreement would not be void merely because the consideration is inadequate, as contemplated in Explanation (2) of Section 25 of the Contract Act. 15. Of course, the agreement would not be void merely because the consideration is inadequate, as contemplated in Explanation (2) of Section 25 of the Contract Act. 15. Now, so far as the validity or enforceability of the agreements in question is concerned, it has been submitted on behalf of the learned Counsel for the respondents that the agreements in question having been executed in violation of Section 43(1) of the Tenancy Act, the same were invalid and not legally enforceable. In this regard, it may be stated that undisputedly, the land was of restricted tenure. The relevant parts of Section 43(1) and 43(2) are reproduced as under:- "Section 43 Restriction on transfer of land purchased or sold under this Act.- (1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 32-1, [32-O], [32U, 43-ID or 88E] or sold to any person under 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest therein shall be partitioned without the previous sanction of the Collector.] To sub-sec.(1), the following provisos shall be added, namely:- Provided that, no previous sanction of the Collector shall be required, if the partition of the land is among the members of the family who have direct blood relation or among the legal heirs of the tenant: Provided further *** (2) [Any transfer or partition, or any agreement of transfer, of any land or any interest therein] in contravention of sub-section (1) shall be invalid.]" 16. From the afore-stated provision, it clearly transpires that the land of restricted tenure could not be transferred or agreed to be transferred or sold without the previous sanction of the Collector and that any transfer or any agreement of transfer of land or interest therein, if made without the previous sanction of the Collector would be invalid. From the afore-stated provision, it clearly transpires that the land of restricted tenure could not be transferred or agreed to be transferred or sold without the previous sanction of the Collector and that any transfer or any agreement of transfer of land or interest therein, if made without the previous sanction of the Collector would be invalid. At this juncture, it may be noted that as per Section 10 of the Indian Contract Act, all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void in the Act. Section 23 of the Contract Act, inter alia, states that the consideration or object of the agreement is lawful, unless it is forbidden by law or is of such a nature that if permitted, it would defeat the provisions of any law. It further states that in such cases, the consideration or object of an agreement is said to be unlawful, and every agreement of which the object and consideration is unlawful is void. Since the agreements for sale in question, executed without the previous sanction of the Collector were forbidden under Section 43(1), they were invalid under Section 43(2) of the Tenancy Act. The consideration or object of such agreements would also, therefore, be unlawful and such agreements would be void agreements in view of Section 23 of the Contract Act. There is no provision in the Tenancy Act, which would authorize any authority under the said Act to validate such agreements of sale executed without the previous sanction of the Collector and in violation of Section 43(1) of the said Act. Therefore, in the opinion of the Court, such agreements, which are unlawful and void, in view of Section 23 of the Contract Act read with Section 43 of the Tenancy Act, could not be enforced, nor any decree for specific performance of such agreements could be passed by the Court. 17. Mr. Soparkar, learned Sr. Counsel has tried to draw the distinction between the invalid agreement and void agreement relying upon the decision of this Court in the case of Mavjibhai Dharsibhai & Ors. Vs. State of Gujarat & Ors. (supra), however, the facts of the said case are entirely different from the present one. 17. Mr. Soparkar, learned Sr. Counsel has tried to draw the distinction between the invalid agreement and void agreement relying upon the decision of this Court in the case of Mavjibhai Dharsibhai & Ors. Vs. State of Gujarat & Ors. (supra), however, the facts of the said case are entirely different from the present one. In the said case, the issue was whether the concerned authority was justified in taking action under Section 84C of the Tenancy Act, and while interpreting Section 83A, it was observed that an invalid transaction was equivalent to a voidable transaction and not void transaction. The Court had no occasion to deal with the agreement executed in violation of Section 43(1) of the Tenancy Act, or to examine whether such agreement would be void or not in the light of Section 23 of the Contract Act. In the instant case, the agreements, which are executed in violation of Section 43(1) and per se invalid in view of the provisions contained in Section 43(2) of the Tenancy Act, would be void agreements in view of the provisions contained in Section 23 of the Contract Act, and, therefore, could not be specifically performed. At this juncture, it may be stated that as per Section 9, the person against whom the relief of specific performance is claimed, is entitled to plead by way of defence, any ground available to him under the law relating to contracts. Hence, if the agreements are void in view of Section 23 of the Contract Act, the same cannot be treated as voidable as sought to be submitted by the learned Counsel for the appellant - plaintiff. So far as Section 43(1A) of the Tenancy Act is concerned, it relates to the sanction under Sub-section (1) to be granted by the Collector on the conditions, as may be prescribed by the State Government. The said provision would apply when the sanction is sought prior to entering into the agreement in question. However, there is no provision in the said Act, which would permit the Collector to validate the agreement by granting sanction subsequent to the execution of such agreement. The said provision would apply when the sanction is sought prior to entering into the agreement in question. However, there is no provision in the said Act, which would permit the Collector to validate the agreement by granting sanction subsequent to the execution of such agreement. Of course now, the land has been converted into old tenure and necessary permission has also been granted for using the same for non-agricultural purpose on payment of the premium amount as per the orders passed by the Collector, at the instance of the respondents - owners and the subsequent purchasers, nonetheless the alleged agreements in question having been executed in contravention of the provisions of Section 43 of the Tenancy Act at the relevant time of their execution, the same were invalid and unenforceable in the eye of law. 18. Apart from the fact that after admitting the execution of the agreements in question in favour of the appellant, the respondent No. 1 has denied such execution, however, even if it is believed that such agreements were executed in favour of the appellant by the concerned respondents, then also there is nothing on record to suggest that the appellant - plaintiff had taken any action for getting any permission under the Tenancy Act for converting the land from new tenure to old tenure, whereas the respondents No. 4 and 5 appear to have paid huge amount of premium for such conversion and the said amount has also been adjusted against the amount of sale consideration by the respondents No. 1 and 2 - owners at the time of the execution of the sale deed. It also appears that the respondents No. 4 and 5 are in possession of the land in question and they have started developing the same. Hence, the appellant - plaintiff having failed to show any prima facie case in his favour as regards the maintainability of the suit and enforceability of the agreements in question, the Court is of the opinion that the trial Court has rightly dismissed the application of the appellant - plaintiff seeking temporary injunction. 19. Before concluding, the Court deems it necessary to take serious view on the conduct of the respondent No. 1 - defendant No. 1, who either for an extraneous consideration, or to save his skin, has taken contradictory stands in the judicial proceedings by filing one written statement at Exh. 19. Before concluding, the Court deems it necessary to take serious view on the conduct of the respondent No. 1 - defendant No. 1, who either for an extraneous consideration, or to save his skin, has taken contradictory stands in the judicial proceedings by filing one written statement at Exh. 20 supporting the case of the present appellant - plaintiff and subsequently by filing the application at Exh. 43, and other documents in the nature of affidavits supporting the case of the respondents No. 3 to 5. It appears that the respondent No. 1 has tried to change his version after the impugned order was passed by the trial Court, just to suit his purpose, misusing and abusing the process of law. The Court is constrained to observe that due to sky-rocketing escalation in the prices of the lands in and around the urban areas, the execution of such illegal agreements at the instance of the owners/power-of-attorney holders/banakhat holders has become rampant, and that more often than not, the proceedings of Courts are being misused and abused to a large extent by such unscrupulous elements. In many cases, innocent persons are being cheated and defrauded by such elements, in the quest of earning easy money, dragging such innocent persons to litigations which go on for years together. 20. In the instant case also, the respondent No. 1 - defendant No. 1 after requesting the trial Court to reopen his right to file written statement, and after filing written statement at Exh.20 along with the affidavit and declaration supporting the case of the appellant - plaintiff, had filed an application at Exh. 43, requesting the trial Court to de-exhibit the earlier written statement at Exh. 20 by stating, inter alia, that the said written statement was filed by the Advocate Ms. Trupti Patel on his behalf without his knowledge. The said Application at Exh. 43 was rejected by the trial Court, which order has remained unchallenged. All these documents namely the written statement at Exh. 20 with affidavit and declaration and the other written statement and the affidavit filed before the trial Court have also been produced by the learned Counsels for the parties in the present proceedings and have been relied upon by them, to support their respective contentions. All these documents namely the written statement at Exh. 20 with affidavit and declaration and the other written statement and the affidavit filed before the trial Court have also been produced by the learned Counsels for the parties in the present proceedings and have been relied upon by them, to support their respective contentions. From the said documents on record, it clearly transpires that the respondent No. 1 - defendant No. 1 had sought to produce two sets of documents contradictory to each other, in relation to the proceedings in this Court, and had made the declarations and statements which he knew were false, for being used as evidence in the judicial proceedings. The respondent No. 1 has neither denied his signatures on the written statement Exh. 20 and the affidavit filed along therewith, nor has taken any action against the advocate Ms. Trupti Patel, who had allegedly filed the said written statement on his behalf. The second written statement was sought to be filed along with the application Exh. 43 after the impugned order was passed by the trial Court, and when the present Appeal from Order was pending before this Court. The Court, therefore, has reason to believe that the respondent No. 1 has deliberately and consciously tried to take Courts for a ride and filed the documents and declarations making false statements which could be read as evidence in the judicial proceedings, and thereby has prima facie acted in the manner which would affect the administration of justice, tantamounting to the offences as contemplated in Section 199 and Section 200 of IPC, and as referred in Section 195(1)(b)(i) of Cr.P.C. As stated herein above, nowadays such illegal transactions and agreements are rampant, and the process of law is being misused and abused by the unscrupulous elements, which ultimately hampers the administration of justice. The Court, therefore, is of the opinion that it is expedient in the interest of justice to file complaint against the respondent No. 1 in exercise of the powers conferred under Section 340 of Cr.P.C. 21. In view of the above, the Appeal from Order is dismissed. The Court, therefore, is of the opinion that it is expedient in the interest of justice to file complaint against the respondent No. 1 in exercise of the powers conferred under Section 340 of Cr.P.C. 21. In view of the above, the Appeal from Order is dismissed. The Registrar (Judicial), Gujarat High Court, Ahmedabad is directed to make complaint against the respondent No. 1 in view of the above findings recorded by the Court for the offence under Section 199 and Section 200 of IPC before the competent Court of Magistrate, having jurisdiction, who shall, after following the procedure as contemplated in Section 343 of Cr.P.C., deal with the case in accordance with law. 22. The present appellant, the respondents, and Ms. Trupti Patel, Advocate, who had filed the written statement on behalf of the respondent No. 1 shall appear and give evidence before the said Magistrate as and when directed by him. The respondent No. 1 also shall remain present before the said Magistrate as and when directed. The Registration (Judicial) is directed to do the needful for the implementation of the directions contained in this order as expeditiously as possible. 23. Copy of this Court be sent to the Registrar (Judicial) for necessary compliance and to the Advocate Ms. Trupti Patel through the trial Court. The parties to the present proceedings shall be informed about this order by their respective Advocates. 24. At this juncture, the learned Counsel Ms. Megha Jani for the appellant - plaintiff requests to continue the stay, granted by this Court earlier for a period of eight weeks to enable the appellant to approach the higher forum. The said request is rejected for the reasons given in the afore-stated order.