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2022 DIGILAW 1203 (GUJ)

Nil Mahesh Shah v. Mahendrabhai Dalpatbhai Patel

2022-10-04

HEMANT M.PRACHCHHAK

body2022
JUDGMENT : 1. By way of present appeal, the appellant – original defendant no.9 has challenged the impugned order dated 26.09.2018 passed by the learned Principal Senior Civil Judge and Additional Chief Judicial Magistrate, Olpad (hereinafter be referred to as “the Trial Court”) below application Exhibit 5 in Special Civil Suit No.428 of 2016, whereby the application came to be partly allowed. 2. With the consent of learned counsel appearing for both the sides, the appeal is taken up for final hearing. 3. Brief facts of the present case are that the appellant has purchased the subject parcel of land by way of registered sale deed from one of the co-owners of the land and the co-owner has entered into sale transaction with the appellant and sale deed executed on 02.06.2016 and after paying full consideration the subject parcel of land was sold to the appellant. It is the case of the appellant that though he purchased the subject parcel of land, the respondent no.1 – original plaintiff has filed the suit for specific performance of the unregistered agreement to sell entered into between the legal heirs of the original land owner somewhere in the year 1980. But till date, the original plaintiff has not claimed the specific performance by way of institution of any proceedings for almost 35 years. Even he has neither issued any legal notice nor challenged any revenue entry subsequent to the date of the death of the original land owner of the coparcenor of the subject land. 3.1 That the respondent no.1 – original plaintiff filed Special Civil Suit No. 428 of 2016 with application at Exhibit 5 before the learned Principal Senior Civil Judge and Additional Chief Judicial Megistrate, Olpad. The said application came to be objected by the present appellant by filing written statement/reply. 3.4 After hearing the parties, the Trial Court partly allowed the application at Exhibit 5 vide order dated 26.09.2018. 3.5 Being aggrieved and dissatisfied with the impugned order, the appellant has filed the present appeal. 4. Heard Mr.Amit Thakkar, learned counsel appearing for the appellant and Mr.K. K. Trivedi, learned counsel appearing for respondent no.1. 5. Mr.Thakkar, learned counsel appearing for the appellant has submitted that the Trial Court has committed an error by partly allowed the application at Exhibit 5. 4. Heard Mr.Amit Thakkar, learned counsel appearing for the appellant and Mr.K. K. Trivedi, learned counsel appearing for respondent no.1. 5. Mr.Thakkar, learned counsel appearing for the appellant has submitted that the Trial Court has committed an error by partly allowed the application at Exhibit 5. He has submitted that the original plaintiff has not produced anything to show that any efforts was made by the plaintiff for specific performance of the alleged agreement to sell of 1980 for almost 35 years. It is submitted by Mr.Thakkar that original owner Khandubhai Nagarjibhai expired in 1975 and the name of his legal heirs Pramodbhai Khandubhai, Harishbhai Khandubhai and Gajraben Wd/o. Khandubhai were mutated in the revenue record vide mutation entry No.3904 in the year 1977 and thus, Pramodbhai Khandubhai was not sole owner of the subject land in the year 1980 and, therefore, the claim of the original plaintiff is not tenable because the owners of the said property have admittedly not executed the alleged agreement to sell. It is submitted by Mr.Thakkar that the alleged agreement relied on by the original plaintiff is false and fabricated and a complaint in this regard filed against the plaintiff and further alleged agreement to sell is neither notarized nor registered before the competent authority. It is submitted that the plaintiff has not taken any steps for more than three decades for its performance. He has submitted that the appellant is the owner of the suit property which came to be purchased by him by way of registered sale deed No.9958 dated 02.06.2016. He has submitted that from 1980 till 2016, as and when names of the co-owners’ appeared in the revenue record expired, the mutation entry of heirship is mutated and over a period of time, several mutation entries are being mutated and ultimately, defendants no.1 to 8 were being reflected as the owners. It is submitted that during all these years, no objection was raised against the mutation entry of heirship and thus, no claim with regard to the right on the basis of an agreement was made by the plaintiff and suddenly, after more than three decades right is sought to be claimed. He has submitted that in view of the above facts, the appeal deserves to the allowed. 5.1 He has relied upon the following decisions:- (1) Veetrag Holding Co. Ltd. Vs. He has submitted that in view of the above facts, the appeal deserves to the allowed. 5.1 He has relied upon the following decisions:- (1) Veetrag Holding Co. Ltd. Vs. Gujarat State Textile Corporation Ltd reported in 1996 (3) GLR 536 ; (2) K. S. Vidyandam and other Vs. Vairavan reported in AIR 1997 SC 1751 ; (3) Kashi Math Samsthan and another Vs. Shrimad Sudhindra Thirtha Swamy and another reported in (2010) 1 SCC 689 ; (4) Balram Singh Vs. Kelo Devi reported in (2022) SCC Online SC 1283; 6. Mr.K. K. Trivedi, learned counsel appearing for respondent no.1 has strongly objected the present appeal merely on a ground that since 1980, the original plaintiff is in possession of the subject parcel of the land and, therefore, considering the provisions of Section 3 Exceptional 1, the present appeal is required to be dismissed with cost. 7. I have considered the submissions canvassed by the learned counsel appearing for the respective parties and perusal the materials available on record and gone through the decisions cited at the bar. 8. The relevant observation made in the decision of this Court (Coram: Hon’ble Mr.Justice H. L. Gokhale) in the case of Veetrag Holding Co. Ltd (supra), reads as under:- "Inasmuch as this contract was terminated on 6th December 1993, it was expected of the appellant to move for specific performance at the earliest, if they were serious about the same. The appellant certainly cannot be non-suited on the ground of limitation inasmuch as their suit is within time. However, when it comes to grant of equitable relief when the suit is filed after such a lapse of time, it cannot be said that the remedy of interim injunction was the necessary remedy and there was no other remedy available to the party concerned in this behalf. The appellant was silent for nearly two years after termination of contract. The facts are gross enough to disentitle the appellant to the remedy of injunction.” 9. The appellant was silent for nearly two years after termination of contract. The facts are gross enough to disentitle the appellant to the remedy of injunction.” 9. The relevant observations made in the decision of the Hon’ble Supreme Court in the case of K. S. Vidyanadam and others (supra) read as under:- “It cannot be said that any and every suit fir specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time limits stipulated in the agreement for doing one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. The rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties – evolved in terms when prices and values were stable and inflation was unknown – requires to be relaxed, if the modified, particularly in the case of urban immovable properties. It is high time, the court do so. In the instant case may be the parties knew of the circumstance regarding rising prices but they have also specified six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as non-existent? All this only means that while exercising its discretion, the court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties). In the instant case from the date of agreement to sale till the date of suit notice the purchaser was sitting quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of six months within which he was expected to purchase stamp papers, tender the balance amount and call upon the vendors to execute the sale deed and deliver possession of the property. Further, the delay was coupled with substantial rise in prices – according to the vendors three times – between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the purchaser. The plea that the subsequent purchaser of property who has purchased the property after the decree of the Trial Court has consciously purchased litigation and that, therefore, there are no equities in his favour and as between the plaintiff purchaser and the subsequent purchaser equities are in favour of the plaintiff would not be tenable.” 10. In the case of Kashi Math Samsthan (supra), the Hon’ble Supreme Court has held and observed in paragraph no.16 as under:- “16. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore, keeping this principle in mind, let us now see, whether the appellant has been able to prove prima facie case to get an order of injunction during the pendency of the two appeals in the High Court.” 11. In the case of Balram Singh (supra), the Hon’ble Supreme Court has held and observed in paragraph no.16 as under:- “16. At the outset, it is required to be noted that the original plaintiff instituted a suit praying for a decree of permanent injunction only, which was claimed on the basis of the agreement to sell dated 23.03.1996. However, it is required to be noted that the agreement to sell dated 23.03.1996 was an unregistered document/agreement to sell on ten rupees stamp paper. Therefore, as such, such an unregistered document/agreement to sell shall not be admissible in evidence.” 12. Now, considering the aforesaid facts and circumstances of the case, it appears that the suit instituted in the year 2016 and interim injunction granted in the year 2018 and, thereafter, the present appeal is filed in 2019. It is case of the appellant that he purchased the subject parcel of land by way of registered sale deed from one of the co-owners of the land being sold of the family and he entered into sale transaction with the appellant. The sale deed was executed 02.06.2016 and after paying full consideration the subject parcel of land sold by the co-owner to the present appellant. It further the case of the appellant that though he purchased the subject parcel of the land, the respondent – original plaintiff filed the suit for specific performance of unregistered agreement to sell entered into by the legal heirs of the original land owner somewhere in the year 1980, but till date, the original plaintiff has not claimed for specific performance by way of instituting any proceedings till 35 years. Even the plaintiff has neither issued any legal notice nor has he challenged any revenue entry subsequent to the date of the death of the original land owner of the coparcener in the subject land. It appears that the Trial Court granted interim relief in favour of the respondent – original plaintiff and hence, the present appeal is filed. 13. Even the plaintiff has neither issued any legal notice nor has he challenged any revenue entry subsequent to the date of the death of the original land owner of the coparcener in the subject land. It appears that the Trial Court granted interim relief in favour of the respondent – original plaintiff and hence, the present appeal is filed. 13. Considering the impugned order more particularly the observation made by the Trial Court, it appears that the Trial Court has completely ignored the fact that the present appellant has purchased the subject parcel of land by registered sale deed no.9958 executed on 02.06.2016 and, thereafter, he had paid all revenue in his name and though he is a legal owner of the subject parcel of the land, the Trial Court passed the impugned order ignoring the said fact. It is true that the interim relief is discretionary power vested with the Trial Court under Order 39 Rule 1 and 2 of the Civil Procedure Code, however, for grant of interim injunction, the main three ingredients are required to be seen by the Trial Court i.e. prima facie case, balance of convenience and irreparable loss/injury caused to the parties. Herein the present case, the Trial Court came to the conclusion by observing in paragraph no.12 that the original plaintiff failed to establish prima facie case, despite the said fact, the Trial Court, while passing the impugned order, has committed a serious error of law. Though the well settled principles enumerated by the Hon’ble Apex Court in the case of Kashi Math Samsthan (supra), the Trial Court has completely ignored the provisions of Order 39 Rule 1 and 2 of the Civil Procedure Code, while passing the impugned order. It is suffice it to note here that the Trial Court has completely overlooked the facts that though prima facie case was not established by the plaintiff, the irreparable injury caused on the part of the defendants and not on the part of the plaintiff since the plaintiff relied upon the unregistered agreement to sell i.e. way back in the year 1980 and he has not taken any steps till date. Neither the plaintiff has challenged the revenue record by initiating any proceedings before the Revenue Authority nor has he filed any proceedings in the Court except filing the present suit i.e. after about 35 years. Neither the plaintiff has challenged the revenue record by initiating any proceedings before the Revenue Authority nor has he filed any proceedings in the Court except filing the present suit i.e. after about 35 years. The present plaintiff is not entitled to get any interim relief rather than the discretionary relief in his favour. 14. While considering the above referred submissions, this Court is on the basic principles, while considering the application under Order 39 Rule 1 and 2 of the Code that, the power conferred under Order 39 Rule 1 and 2, CPC in granting or refusing temporary injunction is discretionary which is to be exercised in accordance with reasons ans sound judicial principles. The equitable and discretionary reliefs of temporary injunction is no to be granted as a rule or as a matter of course in a case where there are serious allegations. It is a settled principle of law that injunction or interim orders are issued not on grace or on default of any person. Interim orders are granted on the basis of the case made out prima facie in the pleadings and that in the interest of justice such interim order is necessary in order to prevent abuse of process of law to prevent wastage or to maintain the situation as on date or from recurrence of certain incident which were existing as on the date of presenting such application or at least the presentation of main application out of which the proceeding is arising. 15. While deciding the above referred factors, the trial court has to consider all the three ingredients under Order 39 Rule 1 and 2 of the Code i.e. prima facie case, the balance of convenience lies in favour of the parties and the irreparable loss or injury caused to the parties and while determining these three basic ingredients, the Trial Court is to apply its mind while deciding the application what is the basic requirements. While examining the present case, it appears that the Trial Court has not even whispered about all these three basic ingredients under Order 39 Rule 1 and 2, while passing the impugned order and, therefore, the order passed by the Trial Court is erroneous, cryptic and perverse and the same is required to be interfered with by this Court. While examining the present case, it appears that the Trial Court has not even whispered about all these three basic ingredients under Order 39 Rule 1 and 2, while passing the impugned order and, therefore, the order passed by the Trial Court is erroneous, cryptic and perverse and the same is required to be interfered with by this Court. The impugned order is required to be quashed and set aside and the matter is required to be remitted back to the concerned Trial Court for its re-consideration of the application at Exh.-5, considering the basic principles of Order 39 of the Code. 16. In view of the above, therefore, the appeal is allowed. The impugned order dated 26.09.2018 passed by the Trial Court is hereby quashed and set aside. It is open for the concerned parties to request the Trial Court to expedite the hearing of the suit and decide the same as expeditiously as possible but not later than one year from the date of receipt of present order. The Trial Court shall decide the suit in accordance with law, after hearing parties to the suit and uninfluenced by observations made in the earlier orders either by the Trial Court or by this Court. Further, parties to the suit are also directed to co-operate with the Trial Court for deciding the suit and shall not seek unnecessary adjournment. The Trial Court shall also give an opportunity to the parties to lead the oral as well as documentary evidence. The interim relief in terms of paragraph no.5(A) as prayed for by the present appellant is hereby granted till the final disposal of the suit. Pending civil application/s shall stand disposed of accordingly.