Gujarat High Court
Jayshivsinhji Rudratsinhji vs Nareshbhai Hathising Shah & 19 on 28 February, 2014
Author: Jayant Patel
Bench: Jayant Patel, K.M.Thaker
C/CA/634/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR ORDERS) NO. 634 of 2014
In FIRST APPEAL NO. 1996 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE K.M.THAKER
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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JAYSHIVSINHJI RUDRATSINHJI....Applicant(s)
Versus
NARESHBHAI HATHISING SHAH & 19....Respondent(s)
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Appearance:
MR IH SYED, ADVOCATE for the Applicant(s) No. 1
MS KJ BRAHMBHATT, ADVOCATE for the Respondent(s) No. 20
MS SRUSHTI A THULA, ADVOCATE for the Respondent(s) No. 11
MS TRUSHA K PATEL, ADVOCATE for the Respondent(s) No. 14 - 17
MS VARSHA BRAHMBHATT, ADVOCATE for the Respondent(s) No. 20
Page 1 of 21
C/CA/634/2014 CAV JUDGMENT
MS VIDHI J BHATT, ADVOCATE for the Respondent(s) No. 1 - 9
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE K.M.THAKER
Date : 28/02/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present application has been preferred by the applicant, who is the original respondent No.5 to recall the order dated 17.4.2008 passed in First Appeal No.1996 of 2012, whereby the appeal came to be admitted and it is also prayed that the interim order passed in Civil Application No.4816 of 2008 dated 17.4.2008 with its confirmation vide order dated 6.10.2010 may also be recalled and the First Appeal as well as Civil Application be dismissed.
2. Mr.I. H. Syed, learned Counsel for the application, during the course of the hearing, prayed that since First Appeal was preferred by the original appellants, who were not party to the proceedings before the lower Court in the suit, application for leave to preferred appeal being Civil Application No.4764 of 2008 was Page 2 of 21 C/CA/634/2014 CAV JUDGMENT preferred and this Court vide order dated 17.4.2008 had granted leave and, therefore, the prayer be permitted to be amended in the present application for recalling of the order dated 17.4.2008 passed by this Court in Civil Application No.4764 of 2008, since after the leave was granted, the Court entertained the First Appeal. Hence, permission to amend prayer clause accordingly is granted.
3. We have heard Mr.Syed, learned Counsel for the applicant, Mr.Shalin Mehta, learned Sr. Counsel appearing with Ms.Vidhi Bhatt for the main contesting party - original appellant, and Ms.Trusha Patel, Ms.Brahmbhatt and Ms.Srushti Thula, learned Counsel for the respective respondents. It may be stated that the learned Counsel for the respondents, upon advance copy served of the present application, have appeared for their respective clients.
4. It may also be recorded that Mr.K.G. Vakharia, learned Sr. Counsel appearing with Mr.Parikh wanted to intervene in the hearing of the present application, contending that his clients have purchased the property pending injunction granted Page 3 of 21 C/CA/634/2014 CAV JUDGMENT by this Court, but they are not impleaded up till now as party in the proceedings of First Appeal No.1996 of 2008 and his application for being impleaded as party is pending in the proceedings of First Appeal and it was submitted that their clients have preferred similar application for recalling of the order and the hearing of the present application be made simultaneously with the said application.
5. The broad facts are that Special Civil Suit No.151/2007 was filed in the Court of Civil Judge, Ahmedabad by the original respondents No.6,7,8, and 9 as plaintiffs against original respondents No.1, 2, 3, 4 and 5 as defendants. In the said suit, compromise decree was passed on 19.7.2007 based on the so-called settlement/compromise dated 7.12.2007. As per the original appellants, the compromise decree was a fraud and the compromise decree was to frustrate the rights of the appellants in the land in question and, therefore, they preferred Special Civil Suit No.51 of 2008 against the respondents in the Court of Civil Judge, Ahmedabad, wherein the injunction was also Page 4 of 21 C/CA/634/2014 CAV JUDGMENT granted by the trail Court below application for temporary injunction. The principal contention was that there was a registered agreement to sell the land in question in favour of the appellant and an amount of Rs.85 lac was paid by the appellant in spite of the same, by frustrating the rights, Suit No.151 of 2007 was filed and the decree was passed by organizing conspiracy against the appellant and the suit was a collusive suit and consequently, consent decree too. After filing of the suit, the present appeal was preferred. The principal contention in the appeal was that Special Civil Suit No.151 of 2007 was not competent for the relief prayed without joining the appellant as party defendant and the learned trail Judge could not have recorded the compromise by consent decree and it was contended that the fraud is played upon the Court, which entered the consent decree.
6. Since the appellant was not party in the proceedings of the suit, an application for leave to prefer appeal being Civil Application No.4764 of 2008 was preferred. This Court, on 17.8.2008, passed the following order:-
Page 5 of 21 C/CA/634/2014 CAV JUDGMENT
"Leave is granted. Civil Application stands disposed of."
7. Simultaneously on the same date, in First Appeal No.1996 of 2008 following order was passed:-
"Admit."
8. Below Civil Application No.4816 of 208 for interim injunction, on the same day, this Court passed the following order:-
"Rule returnable on 19th June, 2008. Pending the appeal, there shall be ad interim stay in terms of paragraph 6(A) & 6(B)."
9. Thereafter, Civil Application for interim injunction being Civil Application No.4816 of 2008 was heard by this Court and after hearing both the sides, including applicant herein vide order dated 6.10.2010 following order was passed:-
" We have heard Mr Shalin N Mehta, learned Advocate for the applicantappellants, Ms. Srushti Thula, learned Advocate for respondent No.2, Mr Tattvam Patel, learned Advocate for respondents No.3 to 5 and Ms. Varsha Brahmbhatt, learned Advocate for respondent No. 12.
It, prima facie, appears that there were certain proceedings before the court in the other suits but were not disclosed at the time when the consent pursis was submitted. Further, as contended by respondents No.1 to 4, they did not authorise respondent No.5 to enter into a consent pursis. Therefore, the Page 6 of 21 C/CA/634/2014 CAV JUDGMENT question of propriety in endorsing the compromise pursis by the court deserves consideration. Further, whether the consent decree was by way of fraud or not is an aspect which can effectively be considered in the proceedings of Special Civil Suit No.51/08 which is pending before the concerned court. After the fact finding enquiry is entered into and the orders are passed by the Civil Court, this court may be in a position to pass further effective order on the aspect of consent decree. As the appeal has been admitted, we find that it would be just and proper to confirm the adinterim relief granted earlier. Hence, the adinterim relief granted earlier is confirmed with the clarification that the pendency of the appeal would not operate as bar to the parties in pursuing the matter in the proceedings of the Special Civil Suit No.51/08. After the final judgment and the decree is passed in the Civil Suit, it would be open to either side to move for final hearing of the First Appeal. Rule is made absolute. The Civil Application is disposed of accordingly."
10. It may also be recorded that pending the operation of the interim injunction, the applicant herein, through his power-of-attorney, transferred/sold the parcel of the land in question bearing Survey No.380 to (1) Dinaben Jitendrabhai Thaker; (2) Devenbhai Ishwarbhai Patel; (3) Hasmukhbhai Girdharbhai Patel; (4) Ruchiben Yogeshbhai Bhatt; and (5) Jayshriben Ajitbhai Mehta, by registered sale deed dated 22.11.2012 for consideration of approximately Page 7 of 21 C/CA/634/2014 CAV JUDGMENT Rs.8 crore. Since the transfer of the land in question as per the appellant was in contravention to the interim injunction granted by this Court in First Appeal, an application under Contempt of Courts Act has been preferred being Civil Application No.1094 of 2013. In the said contempt proceedings, this Court on 27.8.2013 had passed the following order:-
"1. We have heard Mr.Shalin Mehta with Ms.Bhatt for the applicants, Mr.Parikh for respondents no.1 to 5 and Mr.Kavina for respondents no.9 to 11.
2. It appears that the sale deed executed on 22.11.2012 is in contravention to the interim order passed by this Court in Civil Application No.4816/08 vide order dated 17.04.2008 read with the order dated 06.10.2010.
3. We would have further considered the matter. However, Mr.Kavina, learned counsel for respondent no.11 states that respondent no.11 is ready to purge from the contempt by return of the consideration and cancellation of the document. However, as per his instruction, whether respondents no.1 to 5 who are purchaser of the property are agreeable or not may be asserted from Mr.Parikh.
4. Mr.Parikh, learned counsel appearing for respondents no.1 to 5 states that he will inquire from his client as to whether they are agreeable for cancellation of the document in lieu of the refund of the consideration.Page 8 of 21 C/CA/634/2014 CAV JUDGMENT
5. In view of the above, Mr.Kavina seeks time to place the schedule for refund of the amount. S.O. to 11.09.2013. Respondent no.11 shall remain personally present before this Court on that date. It is further directed that until further order, respondents no.1 to 5 shall not transfer or alienate the property in any manner whatsoever."
11. Thereafter on 11.9.2013 following order was passed:-
"1. Leave to join District Collector, Ahmedabad, as party respondent.
2. Pursuant to the earlier order passed by this Court, respondent No.11 is personally present and it has been stated that he wants time to submit the schedule for refund of the money. Upon further inquiry, Mr.Jadeja has stated that out of the total consideration received by him some amount is spent and some amount is invested. However, the source of investment is not disclosed. It has been stated that appropriate affidavit shall be filed within one week.
3. As the amount involved is more than Rs.8 crores of the sale, District Collector, Ahmedabad, is directed to make inquiry about all properties of respondent No.11 including his bank accounts and the balance lying in his bank account through the Mamlatdar of the concerned area. A panchnama shall be drawn after inquiring with the revenue records and it is specifically ordered that respondent No.11 shall not transfer or alienate all of his properties, including residence without express leave of this Court. The District Page 9 of 21 C/CA/634/2014 CAV JUDGMENT Collector shall ensure that the order of this Court is affixed on all properties of the respondent No.11.
4. S.O. to 25.9.2013.
5. The respondent No.11 shall remain personally present on that date.
6. The District Collector to report to this Court the compliance of this order on the next date and the officer not below the rank of Mamaltdar shall remain personally present on that date. Direct service is permitted."
12. Again on 11.10.2013 following order was passed:-
"1.In response to the earlier order passed by this Court, report has been submitted by the Mamlatdar to the District Collector and the copy is tendered by the learned AGP which incorporates the references of the properties of the alleged contemnor, respondent no.11. We are not satisfied in the way the report is prepared. The report should contain (1) The details of the property with the present approximate market value.
(2) The person who is in possession of the property.
(3) The exact location with the area of the property.
2.If private parties are not available as panchas, Mamlatdar shall see that the Government officer of the rank of Talati or any other person is made as pancha and appropriate panchnama for each of the property is prepared. The report shall be Page 10 of 21 C/CA/634/2014 CAV JUDGMENT submitted on or before 25.11.2013.
3.At this stage, we may record that Mr.SI Nanavati has appeared for respondent no.11 and respondent no.11 is also personally present and it has been stated that respondent no.11 is desirous to purge from the contempt by depositing the amount of consideration and also the cancellation deed to be executed by him The modalities may be reported to this Court on the next date.
S.O. to 26.11.2013."
13. On 18.12.2013 following order was passed:-
1. The alleged contemner - respondent No.11, in respect of whom the details of properties were given as per the report of the Mamlatdar, has filed affidavit dated 17.12.2013 and at paragraphs 6 and 7, it has been stated as under: "6. I say that from the perusal of the aforesaid report it is learnt by me that a large number of my lands are situated in village "Motidevti". I say that about 70 properties, more particularly described at Serial Nos.97 to 167 of the report of the Mamlatdar are belonging to me. I say that the said properties are ancestral properties. I had no occasion to visit the ties in village "Motidevti" and was not aware about the details of such properties.
I further say that as indicated by the Mamlatdar the said properties are worth Rs.13.45 crores. I have till date not entered into or executing any agreement, deed or document for sale of the said lands at village "Motidevti". I further say that in view of the market value of Rs.13.45 crore indicated in the Mamlatdar report the said lands would be sufficient to secure the amount of the sale consideration of the sale deed under challenge.
7. In order to show my bonafides, I say that Page 11 of 21 C/CA/634/2014 CAV JUDGMENT apart from the aforesaid lands in village "Motidevti", there are other properties, as indicated in the report, belonging to me which may be considered by this Hon'ble Court to secure the amount of sale consideration of the disputed sale deed. The details of the same are as under:
Sr. Village Revenue Area Serial No. No. Name Survey (sq. in No. mtrs.) Mamlatdar's Report 1 Goraj 824/1 9600 9 2 Kolat 148/1 1200 26 3 Kolat 160 500 27 4 Modasar 634/2 2428 44 5 Modasar 634/3 304 45 6 Modasar 1035/2 4148 75 7 Modasar 1052/1 3642 76 8 Modasar 1065/6 4553 77 9 Modasar 1102/1B 2023 78 10 Modasar 1135(par 4553 79
t) 11 Modasar 1187(par 809 80
t) 12 Modasar 1251/2 1518 81 I say that I have not entered into or executed any agreement or deed or document in respect of the lands indicated in the above table."
2. In view of the above, it will be for the Mamlatdar concerned to visit the properties with Revenue Secretary/Talati of the said village and to find out the position of such properties and as to whether they are in actual, physical, position of any third party or not. Such report shall be submitted on or before 8.1.2014. Towards probable expenses, respondent No.11 shall deposit an amount of Rs.1,00,000/ (Rupees Page 12 of 21 C/CA/634/2014 CAV JUDGMENT one lac only) with this Court on or before 23.12.2013. S. O. to 9.1.2014.
14. Thereafter on 15.1.2014 following order was passed:-
"1.00. All these applications were heard at length on the last occasion and Mr.S.I. Nanavaty, learned counsel appeared and argued on behalf of the respondent No.11, who was also personally present in the Court. That thereafter Mr.Nanavaty, learned counsel appearing on behalf of the respondent No.11 prayed for some time so as to enable him to make statement on behalf of the respondent No.11 as to when the respondent No.11 will be able to deposit the amount of sale consideration of the land in question which was sold in breach of the order of statusquo granted by this Court. Therefore, considering the request of Mr.Nanavaty, learned advocate appearing on behalf of the respondent No.11, this Court adjourned the matters to today.
2.00. Today, when all these matters are taken up for further hearing, Mr.S.I. Nanavaty, learned counsel has stated at the bar that the respondent No.11 has taken back papers from him and advocate on record Mrs. VD Nanavati and now he is not appearing in the matters as counsel for the respondent No.11. The respondent No.11 is also personally present in the court during the course of the day.
3.00. At this stage, Mr.A.H. Saiyed learned advocate has stated at the bar that he has now instruction to appear in these matters on behalf of the respondent No.11 and he will file his Vakalatnama on behalf of the respondent No.11.
4.00. The conduct of the respondent No.11 in changing the lawyers is highly deprecated.Page 13 of 21 C/CA/634/2014 CAV JUDGMENT
It is required to be noted that earlier thrice the respondent No.11 has changed lawyer. As such it is a prerogative of the respondent No.11 to engage lawyer of his choice, however, the stage at which the respondent No.11 has changed the lawyer deserves serious consideration. Mr.Saiyed, learned advocate has requested for sometime to go through the papers and appear in the matters on behalf of the respondent No.11 and make submissions. We pointed out to Mr.Saiyed, learned advocate that the matters can be adjourned, however, on saddling cost which shall not be less than Rs.50,000/. Mr.Saiyed, learned advocate under the instructions from the respondent No.11 who is personally present in the court, has stated at the bar that his client is ready and willing to pay cost, which may not be less than Rs.50,000/, for adjourning the matters for a week.
5.00. Under the circumstances and as a last chance, all these applications are adjourned at the request of Mr.Saiyed, learned advocate appearing on behalf of the respondent No.11, to 23/1/2014 on condition that the respondent No.11 shall deposit a sum of Rs.51,000/ with the registry of this Court on or before 17/1/2014 (as agreed by the learned advocate appearing on behalf of the respondent No.11 and as recorded hereinabove) towards the cost for adjourning the matters. If the aforesaid amount of cost is not deposited by the respondent No.11 on or before 17/1/2014, it is made clear that further suomotu proceedings shall be initiated against the respondent No.11 for noncompliance of the above directions. S.O. to 23/1/2014."
15. It appears that before the said contempt proceedings are taken up for hearing on 23.1.2014 on 22.1.2014 the present application is filed for Page 14 of 21 C/CA/634/2014 CAV JUDGMENT recalling of the order passed as back as on 17.4.2008 in First Appeal and for the dismissal of the First Appeal.
16. The aforesaid factual background shows that the present application has been preferred by way of a device to create a platform for taking defence in the contempt proceedings. The application can also be said as an after-thought, because the order was passed as back as in the year 2008, but no such prayer of recalling of the order was ever made immediately or even within reasonable period. Not only that but even thereafter when the application for interim injunction being Civil Application No.4816 of 2008 came to be heard vide above referred order dated 6.10.2010 this Court confirmed the interim injunction. At that stage also, no such contention was ever raised or, in any case, not pressed for the leave wrongly granted or the maintainability of the appeal. This Court, in the said order dated 6.10.2010 did record that the question of propriety in endorsing the compromise purshis by the Court deserves consideration. However, on the aspect of consent decree whether was by fraud Page 15 of 21 C/CA/634/2014 CAV JUDGMENT or not was found as to be considered in Special Civil Suit No.51 of 2008, which was pending before the concerned Court. Since all the orders are reproduced we need not repeat the same,but suffice it to state that no question of leave wrongly granted or maintainability of the appeal was ever raised by the applicant herein. In any case, after hearing both the sides, the interim injunction was confirmed. Thereafter also neither the order is challenged before the higher forum, nor any application was made for recalling of the order. It is only after the property is already sold after receiving huge consideration of Rs.8 crore on 22.11.2012 and after the proceedings under the Contempt of Courts Act are initiated and further orders are passed in the proceedings under the Contempt of Courts Act, the present application. Therefore, it can be said that the present application is neither within reasonable time, nor with bona fide purpose, but can rather be said to be an ingenious device to create a platform in the contempt proceedings.
17. Mr.Syed, learned Counsel for the applicant attempted to contend that when the suit was Page 16 of 21 C/CA/634/2014 CAV JUDGMENT already preferred being Special Civil Suit No.51 of 2008 for setting aside of the consent decree, appeal could not be entertained, nor, in any case, leave could be granted by the Court, therefore, there is a valid ground for recalling of the order passed in the application.
18. Whereas, Mr.Shalin Mehta, learned Sr. Counsel for the original appellant contended that the present application is nothing but an after- thought only because the counsel is changed representing the applicant in the proceedings of the contempt matter and/or in the First Appeal. The other learned Counsel, who are representing their respective clients and in whose favour consent decree was passed, supported the stand of the application for recalling of the order.
19. In our view, when the leave is granted as back as in the year 2008 and the appeal is admitted as back as in the year 2008 and the question of maintainability of the appeal was not even raised, nor contended when this Court confirmed the interim injunction granted in the First Appeal vide order dated 6.10.2010 in Civil Application No.4816 of 2010, judicial discretion Page 17 of 21 C/CA/634/2014 CAV JUDGMENT would demand that considering the facts and circumstances of the case, question of maintainability of the appeal should not be decided at this stage, but should be left to be decided, even if such exists, at the time of final hearing of the appeal. We find that the entertainment of the present application at this stage may result into encouraging the litigant to permit ingenious device in the Court proceedings, that too, after the proceedings under the Contempt of Courts Act are initiated and at one time, in contempt proceeding a declaration was made to purge from the contempt. It is hardly required to be stated that no litigant can take up Court proceedings as a jolly ride by raising the contention for ingenious purpose. We are conscious of the fact that the rights, if any, in civil matters are normally to be protected by the Court, but if the Court, in a given case, finds there is ex facie misuse of process of law, application cannot be entertained for seeking protection of such right or, in any case, the reliefs may be declined.
20. Considering the facts and circumstances, we find Page 18 of 21 C/CA/634/2014 CAV JUDGMENT that there is no bona fide purpose at all of the present applicant in raising the contention, that too, after a period of six years from the date on which the appeal was entertained and after a period of about three years from the date on which interim injunction came to be confirmed and further after transfer of the land in contravention to the interim injunction, which was confirmed and proceedings in Contempt of Court Act initiated are pending.
21. Attempt made by Mr.Vakharia, learned Sr. Counsel for his clients to intervene in the hearing of the present application cannot be countenanced for two-fold reasons; one is that the present application is for recalling of the order dated 17.4.2008 and at the relevant point of time i.e. 17.4.2008 his clients were absolutely third party to the property as well as to present litigation and they had no interest whatsoever on 17.4.2008. Secondly, even if it is to be considered for the sake of examination as per the prevailing position now, then also as on today, they are third party to the litigation. Unless and until they are impleaded as party in Page 19 of 21 C/CA/634/2014 CAV JUDGMENT the proceedings of First Appeal No.1996 of 2008, there is no locus with the so-called purchaser of the property to intervene in the hearing of the present application. Under these circumstances, the prayer to hear the present application with an application preferred by his clients is on non-existent premise as they are third party, as on the date of hearing, to the litigation of First Appeal No.1996 of 2008. Hence, such request cannot be granted. We have not found any justifiable ground to postpone the hearing of the present application at the instance of these third parties. Hence, we have found it proper to proceed with hearing of the present application in accordance with law.
22. Under these circumstances, the present application does not deserve to be entertained at this stage. Hence, dismissed. However, it is observed that the rights and contentions of the parties, if any, in the proceedings of First Appeal No.1996 of 2008 at the time of final hearing of the appeal shall remain open and they shall not be prejudiced, in any manner, by any observations made in the present order. Page 20 of 21 C/CA/634/2014 CAV JUDGMENT
(JAYANT PATEL, J.) (K.M.THAKER, J.) vinod Page 21 of 21