JUDGMENT : Rajesh H. Shukla, J. 1. The present First Appeal is filed by the appellant-original defendant under Section 96 of the Civil Procedure Code being aggrieved with the judgment and decree in Civil Suit No. 81/2014 by the Principal Sr. Civil Judge, Kalol, District : Gandhinagar, by which, the suit filed by the respondent-original plaintiff was decreed as stated in detail in the judgment. 2. The facts of the case briefly summarized are as follows:- 2.1 The respondent-original plaintiff is said to have entered into the transaction with the appellant-original defendants for the sale of the suit land i.e. Plot No. AP06 admeasuring 472 Sq.Yards in the society i.e. 'Sarjan' Co-Operative Housing Society, which is known as "Suramya-II" as the respondent-original plaintiff was in need of money with an arrangement for buy back on repayment of the borrowed amount. The transaction of sale by the respondent-original plaintiff in favour of the present appellant-original defendant was executed and the amount of consideration of Rs. 17,10,000/- was paid with the aforesaid understanding that as soon as the sale consideration which was received by the respondent-plaintiff is returned back to the appellant-original defendant, the appellant-original defendant shall execute the sale deed for the same land in favour of the respondent-plaintiff. The circumstances of the respondent-plaintiff are also referred to that after the death of wife of the respondent-plaintiff, as he was bad ridden and ill, he needed money for the treatment and, therefore, the aforesaid sale deed was executed. However as the respondent-plaintiff had some understanding with his sons, he had repaid the amount to the appellant-original defendant. The amount of Rs. 1,78,000/- was given by the respondent-plaintiff by cheque dated 04.06.2012 in favour of the appellant-original defendant, which the appellant-defendant is said to have deposited in the account of his daughter, Khushbu. The remaining amount of consideration of Rs. 17,10,000/- was also paid by cheque, which was deposited by the appellant-original defendant in the account of his daughter, Khushbu. 1,78,000/- was given by the respondent-plaintiff by cheque dated 04.06.2012 in favour of the appellant-original defendant, which the appellant-defendant is said to have deposited in the account of his daughter, Khushbu. The remaining amount of consideration of Rs. 17,10,000/- was also paid by cheque, which was deposited by the appellant-original defendant in the account of his daughter, Khushbu. Therefore when the appellant-original defendant was asked to execute the sale deed, he has failed and avoided, which led to filing of the suit asking for the prayers that the appellant-original defendant may be directed to execute the sale deed in respect of the suit property i.e. Plot No. AP06 admeasuring 472 Sq.Yards in the society i.e. 'Sarjan' Co-Operative Housing Society, which is known as "Suramya-II" and if he fails, the Court Commissioner may be directed to execute the sale deed. 2.2 The appellant-original defendant filed written statement, Exh. 21 contending that the suit is not maintainable and no cause of action has arisen. It is contended that the respondent-plaintiff wanted to sell the plot at Manipur, which the appellant-original defendant purchased. It is also contended that the daughter of the appellant-original defendant had borrowed some amount and as there was some mis-calculation, same could not be repaid, for which, the respondent-original plaintiff has claimed that it was for the transaction of the same land at "Suramya-II", for which, detailed reference is made in the written statement including about FIR being C.R. No. 196/2012 on 18.10.2012. 2.3 The Court below framed the issued and after appreciating the material and evidence, decreed the suit in favour of the respondent-original plaintiff directing to execute the sale deed in favour of the respondent-plaintiff and if the appellant-original defendant fails and neglects then, the Court Commissioner may execute the sale deed, which led to the present Appeal. 3. Heard learned advocate, Shri L.R. Pathan appearing with learned advocate, Shri Z.L. Khan for the appellant-original defendant and learned Senior Counsel, Shri S.I. Nanavati appearing with learned advocate, Shri Y.S. Rajput for the respondent-original plaintiff. 4. Learned advocate, Shri L.R. Pathan referred to the papers and R&P and also the documents with list, Exh. 36 & 37. He submitted that Exh. 37 is the list of documents. He submitted that the Court below has committed an error in decreeing the suit based on the acknowledgment, which has not been properly executed. 4. Learned advocate, Shri L.R. Pathan referred to the papers and R&P and also the documents with list, Exh. 36 & 37. He submitted that Exh. 37 is the list of documents. He submitted that the Court below has committed an error in decreeing the suit based on the acknowledgment, which has not been properly executed. Learned advocate, Shri Pathan joined an issue with regard to the signature of the appellant-original defendant to support his contention that the transaction is bogus and, therefore, he had to file criminal complaint being C.R. No. 196/2012. 5. Learned advocate, Shri Pathan submitted that there is a fraud played with his client and there is no evidence which has been led and the decree is passed without proper appreciation of material and evidence. For that purpose, learned advocate, Shri Pathan referred to the papers and R&P. He submitted that there is nothing on record to suggest that there was any such agreement or understanding. He emphasized that the understanding that the land was purchased by the appellant-defendant with a condition of buy back is not borne out from the document. He referred to the papers again and submitted that no effort is made by the respondent-original plaintiff for registration of the document. He submitted that as it has not been registered, the Court could not have admitted and relied upon such document. He referred to the observations made in Paragraph No. 7 of the judgment and submitted that there is no documentary evidence produced. He submitted that there is no explanation as to how and as to why the said amount is said to have been paid to the daughter. Learned advocate, Shri Pathan submitted that amount which is said to have been deposited in the account of the daughter of the appellant is a different and separate transaction and, therefore, it could best have been explained by Khushbu, the daughter of the appellant-defendant, who is not joined as party. Learned advocate, Shri Pathan strenuously submitted that as the advocate of the appellant-original defendant did not remain present, both the Courts below have proceeded on assumption without requirement of proof of the necessary ingredients and the documents. He submitted that even if the appellant-defendant had not remained present, the Court should have taken sufficient care for necessary evidence, on the basis of which, suit could be decided and decreed. He submitted that even if the appellant-defendant had not remained present, the Court should have taken sufficient care for necessary evidence, on the basis of which, suit could be decided and decreed. He, therefore, submitted that the present appeal deserves consideration and same may be admitted and prayer as prayed for in the Civil Application may be granted. 6. Learned Senior Counsel, Shri Nanavati referred to the background of the facts and circumstances which led the respondent-original plaintiff to execute the sale deed in favour of the appellant-original defendant with a condition of buying it back on repayment of the borrowed amount. Learned Senior Counsel, Shri Nanavati submitted that the circumstances have been explained as the respondent-plaintiff was bed ridden and he needed money for the treatment after the death of the wife, he had to enter into such transaction by executing the document with the condition of buy back on repayment of the amount borrowed from the appellant-original defendant. Learned Senior Counsel, Shri Nanavati submitted that though the amount is repaid by cheque which the appellant-defendant is said to have deposited in the account of the daughter, cannot now turn around and, therefore, the judgment and decree passed in favour of the respondent-original plaintiff is just and proper. Learned Senior Counsel, Shri Nanavati submitted that it is not in dispute that the amounts have been paid by cheque which tallies with the say of the respondent-plaintiff with regard to the understanding for the borrowed amount and, therefore, the contentions which are sought to be raised to avoid the execution of the sale deed for buying the property back, may not be justified and, therefore on appreciation of material and evidence, the Court below has decreed the suit. Learned Senior Counsel, Shri Nanavati also pointed out referring to the relevant dates and submitted that if there was any transaction of borrowing with the daughter, Khushbu or if there was any loan from the daughter of the appellant then, it could have been brought on record by necessary evidence and mere contention without any supporting document or evidence cannot be accepted. 7. 7. Learned Senior Counsel, Shri Nanavati submitted that the amount has been paid by cheque which tallies with the exact amount of transaction which the respondent-plaintiff had with the appellant-defendant in respect of the suit property coupled with the fact that the amount has been deposited in the account of the daughter, for which, there is no explanation. He emphasized that the submission made by other side that it was separate loan transaction, for which, the payment may have been made, cannot be readily accepted. Learned Senior Counsel, Shri Nanavati also submitted that Rojkam of the trial court would make it clear that deliberately the appellant-defendant has not remained present, for which, he referred to the Rojkam to suggest that the Court below has given ample opportunity and stage-wise the proceeding had taken place. He emphasized that the evidence was closed on 17.06.2015; again right of cross-examination was closed on 18.02.2016; thereafter, the matter was kept for hearing on 13.05.2016; and, thereafter, the judgment has been given. Learned Senior Counsel, Shri Nanavati, therefore, submitted that the appellant-original defendant deliberately remained absent once having received money, which he deposited in the name of his daughter and then turned around and refused to execute the sale deed for buy back of the same property even after the amount was repaid. Learned Senior Counsel, Shri Nanavati submitted that the appellant cannot now seek any indulgence having deliberately remained absent and now he cannot be permitted to argue that the Court below have passed a decree only on the assumption without any material and evidence. He submitted that the allegations are made without any justification. He submitted that the appellant-original defendant has to explain that what prevented him from remaining absent all throughout and if it was his absence, the Court may proceed particularly when he has been represented by lawyer. He submitted that the allegations are made that the plaintiff has influenced the lawyer of the appellant-original defendant without any material suggesting any such so called fraud or cheating. He emphasized that in fact, the Police complaint as stated above is filed. Learned Senior Counsel, Shri Nanavati submitted that if the sale deed is executed, the possession would follow the title but in the present case, the possession has remained with the respondent-original plaintiff, for which, the Court Commissioner was appointed and admittedly the possession is with the respondent-plaintiff. He emphasized that in fact, the Police complaint as stated above is filed. Learned Senior Counsel, Shri Nanavati submitted that if the sale deed is executed, the possession would follow the title but in the present case, the possession has remained with the respondent-original plaintiff, for which, the Court Commissioner was appointed and admittedly the possession is with the respondent-plaintiff. He submitted that the appellant-original defendant has also not taken steps even for mutation of entry or possession, which would clearly imply that the say of the respondent-plaintiff that it was a transaction for borrowing of the money, for which, the sale deed was executed as security with a condition of buying it back is justified. He, therefore, submitted that the present Appeal may not be entertained as it would amount to abuse and misuse of the process of law. 8. In view of these rival submissions and having perused the papers with R&P, it is evident that the sale deed is executed in favour of the appellant-original defendant by the respondent-original plaintiff. The respondent-plaintiff has clearly stated that as he was in need of money, he had borrowed the said money, for which, the aforesaid transaction was made with a condition of buying it back on repayment of the borrowed amount. The amount is paid by the respondent-original plaintiff, which matches with the amount or the sale consideration. Therefore when the amount has been admittedly given by cheque, which is deposited in the account of the daughter, it was for the appellant-original defendant to explain the reason for the deposit of the amount in the account of the daughter of the appellant. Assuming that it is a separate transaction, for which, the respondent-plaintiff may have made the payment to the daughter, again it was for the appellant-original defendant to at-least have some evidence prima facie that the amount paid by the respondent-plaintiff to the daughter of the appellant-defendant was for a separate and independent transaction. The relations between the appellant-original defendant and his daughter would not have prevented him from bringing on record any material and evidence to prima facie establish that the said amount for a separate transaction with the daughter independently. 9. The relations between the appellant-original defendant and his daughter would not have prevented him from bringing on record any material and evidence to prima facie establish that the said amount for a separate transaction with the daughter independently. 9. Moreover, the appellant did not remain present throughout the proceeding of the suit which suggests that he was sitting on the fans watching progress and now it cannot be permitted to be argued that the Court below has proceeded on assumption without any material and evidence. As stated above, referring to the Rojkam and other record, at every stage the Court had waited and had made opportunity available to the appellant-original defendant which he did not avail. Mere say of the appellant that his lawyer was influenced by the respondent-plaintiff and, therefore, the lawyer did not remain present resulting in decree passed by the Court is too difficulty to digest as the appellant-defendant at-least could have been in touch with his lawyer when he was very much aware about the proceeding as he had filed the written statement. Therefore, the appellant-defendant could have remained in touch with his lawyer or himself could have been vigilant to examine the progress of the suit pending before the Court. Assuming that there was some such attempts to influence the lawyer made by the respondent-plaintiff, it could have been easily found out by the appellant-defendant had he remained vigilant and remained present or he could have made inquiry from the record of the Court subsequently. The possession is also not parted by the respondent-plaintiff, which would again suggest and support the theory of the respondent-plaintiff that entire transaction was for the purpose of borrowing the amount with an understanding to buy the said suit land back on repayment of the amount. The amount which is said to have been borrowed for such transaction executed as and by way of security for the borrowed amount, is repaid by cheque, which is deposited in the account and the daughter of the appellant-original defendant. However, there is no justification or explanation as to how this amount was deposited in the account of the daughter. There is no evidence that what the daughter is doing or whether she is pursuing any business or any work for which she could have sufficient fund to lend money to the respondent-plaintiff independently. However, there is no justification or explanation as to how this amount was deposited in the account of the daughter. There is no evidence that what the daughter is doing or whether she is pursuing any business or any work for which she could have sufficient fund to lend money to the respondent-plaintiff independently. Therefore totality of the material and evidence and the circumstances which have been considered by the Court below cannot be said to be erroneous and the judgment and decree passed by the Court below cannot be said to be erroneous or ex parte as sought to be canvassed. The submission about the ex parte proceedings are also misconceived as word 'ex parte' would mean in absence of but when the opportunity is provided at different stages and the party or his lawyer remained absent would not make the proceeding of the Court ex parte. If one of the parties does not avail of such opportunity even if he is represented by the lawyer, he cannot make complain that the proceedings have been progressed in his absence and, therefore, it is ex parte. Therefore, the submissions or the attempt made by learned advocate, Shri Pathan are misconceived. 10. Therefore, the impugned judgment and decree, by which, the suit has been decreed with a direction to execute the sale deed for the suit land in favour of the respondent-original plaintiff and if he fails to execute the sale deed in favour of the respondent-original plaintiff, the Registry or Court Commissioner may execute such sale deed in favour of the respondent-original plaintiff, cannot be said to be erroneous. 11. Therefore, the present First Appeal cannot be entertained and deserves to be dismissed and accordingly stands dismissed. 12. In view of the dismissal of main First Appeal, Civil Application for stay does not survive and stands disposed of accordingly. FURTHER ORDER After the order was pronounced, learned advocate, Shri L.R. Pathan appearing with learned advocate, Shri Z.L. Khan has requested for stay of the operation of the order to enable his client to approach the Hon'ble Apex Court, to which, learned advocate, Shri Y.S. Rajput has some reservation. In the circumstances, the request is granted. The stay of the operation of the judgment and order is stayed for a period of six weeks as prayed. Appeal Dismissed