Gujarat High Court
Late Jagdishchandra Pathak Charitable ... vs Rajendrabhai Bawajibhai Patel on 7 October, 2020
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SA/136/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 136 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/SECOND APPEAL NO. 136 of 2020
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LATE JAGDISHCHANDRA PATHAK CHARITABLE TRUST THROUGH ITS
TRUSTEE CHIRAG JAGDISHCHANDRA PATHAK
Versus
RAJENDRABHAI BAWAJIBHAI PATEL
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Appearance:
MR RUTVIJ S OZA(5594) for the Appellant(s) No. 1,2,3,4
MR UMANG R VYAS(5595) for the Appellant(s) No. 1,2,3,4 pass
MR MRUGEN K PUROHIT(1224) for the Respondent(s) No. 1,2
NOTICE SERVED(4) for the Respondent(s) No. 3,5
NOTICE UNSERVED(8) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 07/10/2020
ORAL ORDER
1. The present Second Appeal under Section 100 of the Code of Civil Procedure is filed for the purpose of challenging the judgment and order dated 6.7.2020 passed by the learned 4th Additional District Judge, Kheda at Nadiad in Regular Civil Appeal No.24 of 2019 and the order dated 31.12.2018 passed by the learned 2nd Additional Senior Civil Judge, Nadiad in Special Civil Suit No.6 of 2020.
2. The case of the present appellants is that the respondent - plaintiff filed Special Civil Suit No.6 of 2010 before the learned 2 nd Additional Senior Civil Judge, Nadiad for seeking declaration and mandatory injunction. The suit is based on following factual premises.
"It is the case of the plaintiffs that land admeasuring 2-10-44 Hec- Are-Sq. meters of Block No. 1073 was originally agricultural land Page 1 of 9 Downloaded on : Fri Oct 09 22:56:06 IST 2020 C/SA/136/2020 ORDER and was ownership of Ravjibhai Vaghjibhai Patel (Respondent No. 4) which was converted into non-agricultural purpose and after dividing into plots, permission was sought from Respondent No. 5 - District Development Officer, Kheda. The District Development Officer, Kheda vide order dated 06.02.1990 has granted NA permission as per lay out plan annexed with the permission on certain condition. It is further the case of the plaintiffs that as per the NA permission most particularly, Condition No. 5, the common plot cannot be sold and transfer and no construction can be done on it without prior permission. It is the case of of the plaintiffs that as per the lay out plan, there were 9 plots and a common plot admeasuring 2100 Sq. Mtrs. and said common plot was kept in consonance with the NA permission. It is further the case of the plaintiffs that the internal roads and the common plot, were for exclusive use of the plot holders and Respondent No. 4 (Ravjibhai Patel) did not have any right to sell, transfer or alienate any right, title or interest of such common plot. It is further the case of the plaintiffs that respondent No. 4 herein in connivance of the respondent No. 3 herein, gifted the common plot to respondent No. 3 vide Gift Deed dated 28.03.1995 and in that gift deed the common plot was portrayed as Plot No. 10. It is further the case of the plaintiffs that said purported Plot No. 10 which was actually a common plot as per the Map annexed with the NA permission was sold by original defendant No. 3 to original Defendant Nos. 1 & 2 , present appellants herein by registered sale deed dated 09.01.2006. Thereafter, the appellants have started construction of a school on said common Plot. Therefore, the plaintiffs have filed the suit claiming declaration that Gift Deed dated 28.03.1995 and sale deed dated 09.01.2006 be declared as null and void with further prayer to demolish the school building.
3. The aforesaid suit came to be adjudicated by the learned Judge and vide judgment and order dated 31.12.2018, it was held that school building construction is illegal and as such, the appellants are directed to demolish the said construction within a period of 90 days from the date of order and further, the appellants were restrained from making any further construction on the subject land and the suit came to be allowed by aforesaid decision. Feeling aggrieved by the said decision, the appellants had approached the District Court by way of an appeal which came up for consideration before the learned 4 th Additional Page 2 of 9 Downloaded on : Fri Oct 09 22:56:06 IST 2020 C/SA/136/2020 ORDER District Judge, Kheda at Nadiad, who, by judgment and order dated 6.7.2020, was pleased to dismiss the same. The said Regular Civil Appeal No.24 of 2019 was decided on merit in the absence of appellants. As a result of which, the present appellants have preferred this Second Appeal by raising multiple contentions including following substantial question of law:
"[a] Whether the suit of the plaintiffs - respondent No. 1 & 2 herein is barred by limitation in view of the clear evidence on record ?
[b] Whether the appeal of the present appellant could have been dismissed by recording finding on merits, ignoring the mandatory provision of Order 41 Rule 17 of the Code of Civil Procedure, 1908 which prohibits the Court to decide the appeal on merits in absence of the appellant ?
[c] Whether the judgment & decree passed by the lower Appellate Court is in contravention of Order 22 Rule 4 of the Code of Civil Procedure, 1908 in absence of any express order of exemption passed under the said rule by the Court below ?
[d] Whether the judgment & decree passed by the Courts below are without considering the issue of non- joinder of necessary parties ?
[e] Whether the judgment & decree passed by the Courts below having been passed against the dead person is nullity as per the settled position of law?
[f] Whether, in absence of production of the impugned gift deed on record, the Court below could have passed any decree of cancellation of same ?
[g] Whether the Xerox copy of the impugned sale deed on record is admissible in evidence ?
[h] Whether the suit of the plaintiffs - Resp. No. 1 & 2 without claiming any relief of possession was maintainable in law, particularly in view of the provision of S. 34 of Specific Relief Act ?Page 3 of 9 Downloaded on : Fri Oct 09 22:56:06 IST 2020 C/SA/136/2020 ORDER
[i] Whether the plot in question can be treated to be common plot in respect of which the plaintiff can claim any interest/rights, particularly in view of the covenant of the title deeds in favor of the plaintiff ?"
4. Upon hearing Mr.Mehul S. Shah, learned Senior Advocate with Mr.Rutvij Oza, learned advocate representing the appellants, this Court has issued notice on 26.8.2020, keeping in view the recent proposition of law laid down by the Apex Court in a decision reported in AIR 2020 SC 178, since the said decision was also relates to a substantial question of law which has been raised in clause (B) pertaining to mandatory provision of Order 41 Rule 17 of the Code of Civil Procedure.
5. Pursuant to the notice having been served, Mr.Mrugen Purohit, learned advocate has received the instruction to appear on behalf of contesting respondent and upon his request, the matter was adjourned and today, after receiving the instructions, a request is made by both the learned advocates to hear and dispose of the present Second Appeal at the admission stage, since the issue relates to Order 41 is well propounded in a recent decision. With this background, the present Second Appeal is taken up for consideration.
6. Mr.Mehul S. Shah, learned Senior Advocate appearing with Mr.Rutvij Oza, learned advocate for the appellants, has contended vehemently that it is settled position of law that in an appeal if the lawyer concerned is not appearing or the appellant is not appearing, the usual course of action would be to dismiss the matter for non- prosecution but, no decision to be taken on merit and here, in the instant case, exactly what has happened is that the learned appellate Judge has in the absence of the party, passed an order to conduct the matter ex-parte and then, a judgment is delivered on merit. This is clearly not in consonance with the spirit of Order 41 Rule 17 of the CPC.
Page 4 of 9 Downloaded on : Fri Oct 09 22:56:06 IST 2020 C/SA/136/2020 ORDERTo substantiate his contention, Mr.Mehul Shah, learned Senior Advocate, has also drawn the attention of this Court to the recent decision delivered by the Apex Court which is reported in AIR 2020 SC 178 and has submitted that since this issue is exactly covered by the said decision, instead of examining the merit at this stage, it would be just and proper to relegate the matter for fresh consideration after extending opportunity to the parties concerned and on this ground alone, a request is made to set aside the impugned order with consequential direction to deal with and decide the appeal on merit. Learned Senior Advocate has further assured the Court on instruction that the appellants would cooperate with the hearing and even ready and willing to file an undertaking before the appellate court concerned to cooperate with the hearing and will not seek any unnecessary adjournments and has further requested that even the appeal may be directed to be decided in time bound schedule. Hence, a request is made that instead of examining the merit or de-merit, on this solitary ground, the present appeal be allowed with consequential direction.
7. To these submissions, Mr.Mrugen Purohit, learned advocate appearing on behalf of the contesting respondent has submitted that on the contrary, the situation is self invited by the present appellants. Though the time was granted, time and again it is these appellants who have chosen not to cooperate with the hearing and remained present. In fact, this has happened on account of the fact that a pursis was given that no step will be taken by the original plaintiffs till decision and, therefore, there is a deliberate move on the part of present appellants to while away the time. After arguing for some time and realizing the situation that the appeal has been dismissed on merit, in the absence of party to the proceedings and on this issue of Order 41 Rule 17 of the CPC, there is a latest pronouncement by the Apex Court. Hence, after considering the same and with broad consensus, left it to the discretion Page 5 of 9 Downloaded on : Fri Oct 09 22:56:06 IST 2020 C/SA/136/2020 ORDER of the Court but, with an insistence that appellants shall file an undertaking to cooperate with the hearing of appeal and further, the appeal may be directed to be decided as early as possible, preferably within a period of 3 months.
8. Having heard the learned advocates appearing for the respective parties and having gone through the rival submissions made by learned advocates appearing for the respective parties and having gone through the reasons which are assigned while disposing of the appeal, one thing is quite undisputed that the entire appeal has been disposed of on merit ex-parte in which neither the appellants nor the lawyer concerned could remain present. It may be that the opportunity must have been given to some extent but keeping in view the latest pronouncement of the Apex Court, this Court is of the opinion that instead of dismissing the substantive appeal on merit, the learned Judge ought to have adopted a different mode which is available. For this, the Court has an advantage of some of the observations which are made by the Apex Court almost in similar situation and as such, the Court would like to reproduce the relevant observations from the decision reported in AIR 2020 SC 178 = 2019 LawSuit (SC) 1993 :
"6. The only contention raised by the learned counsel for the appellants is that the High Court was not justified in dismissing the appeal on merits in the absence of the learned counsel for the appellants. In support of his contention, learned counsel has pressed into service the provisions of Order XLI Rule 17(1) of the Code of Civil Procedure, 1908 ('CPC' for short). On the other hand, learned counsel for the respondents has supported the judgment of the High Court.
7. It is not disputed that the matter was listed for hearing on 21.01.2015 on which date learned counsel for the appellants was not present in the Court to argue the matter and no request was made on his behalf. Therefore, Page 6 of 9 Downloaded on : Fri Oct 09 22:56:06 IST 2020 C/SA/136/2020 ORDER the High Court proceeded to decide the appeal on merits itself.
8. Order 41 Rule 17(1) of the Code of Civil Procedure is as under:
"R.17. Dismissal of appeal for appellant's default.(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
[Explanation. Nothing in this subrule shall be construed as empowering the Court to dismiss the appeal on the merits.]"
9. Explanation to subrule (1) of Rule 17 was added by Act 104 of 1976. Prior to 1976 conflicting views were expressed by different High Courts in the country as to the purport and meaning of sub rule (1) of Rule 17 of Order 41 of CPC. Therefore, the explanation was introduced w.e.f 01.02.1977, to clarify the law by making an express provision that where the appellant does not appear, the Court has no power to dismiss the appeal on merits. Thus, Order 41 Rule 17(1) read with its explanation makes it explicit that the Court cannot dismiss the appeal on merits where the appellant remains absent on the date fixed for hearing. In other words, if the appellant does not appear, the Court may if it deems fit dismiss the appeal for default of appearance but it does not have the power to dismiss the appeal on merits.
10. This position has been clarified by this Court in Abdur Rahman and others v. Athifa Begum and others2 wherein it was held that High Court cannot go into the merits of the case when Ins. by CPC (Amendment) Act 104 of 1976, s 87, (w.e.f. 1-2-1977) 1996 (6) SCC 62 there was non-
appearance of the appellant. In Ghanshyam Dass Gupta v. Makhan Lal3 this Court has reiterated the legal position as under:
"Prior to 1976, conflicting views were expressed by the different High Courts in the country as to the Page 7 of 9 Downloaded on : Fri Oct 09 22:56:06 IST 2020 C/SA/136/2020 ORDER purport and meaning of subrule (1) of Rule 17 of Order 41 CPC. Some High Courts had taken the view that it was open to the appellate court to consider the appeal on merits, even though there was no appearance on behalf of the appellant at the time of hearing. Some High Courts had taken the view that the High Court cannot decide the matter on merits, but could only dismiss the appeal for the appellant's default. Conflicting views raised by the various High Courts gave rise to more litigation. The legislature, therefore, in its wisdom, felt that it should clarify the position beyond doubt. Consequently, the Explanation to subrule (1) of Rule 17 of Order 41 CPC was added by Act 104 of 1976, making it explicit that nothing in subrule (1) of Rule 17 of Order 41 CPC should be construed as empowering the appellate court to dismiss the appeal on merits where the appellant remained absent or left unrepresented on the day fixed for hearing the appeal. The reason for introduction of such an Explanation is due to the fact that it gives an opportunity to the appellant to convince the appellate court that there was sufficient cause for nonappearance. Such an opportunity is lost, if the courts decide the appeal on merits in absence of the counsel for the appellant."
9. This being the undisputed position and there is a broad consensus on the aforesaid proposition, this Court is of the opinion that a fresh opportunity deserves to be granted to the appellants but with some precaution, so that no attempts in future be made to drag on the proceedings any further. Hence, upon aforesaid limited submission, without examining the merits of the case any further, the Court would like to dispose of the present Second Appeal keeping in view the substantial question of law which has been framed by the appellants, precisely question (B) contained in para.5 of the appeal memo, on following line :
(1) The present Second Appeal is allowed by quashing and setting aside the impugned judgment and order dated 6.7.2020 passed by the Page 8 of 9 Downloaded on : Fri Oct 09 22:56:06 IST 2020 C/SA/136/2020 ORDER learned 4th Additional District Judge, Kheda at Nadiad in Regular Civil Appeal No.24 of 2019 and as a consequence thereof, the learned appellate Judge is directed to re-examine and decide the Regular Civil Appeal No.24 of 2019 afresh, in accordance with law.
(2) Simultaneously, the appellants are directed to file an appropriate undertaking before the appellate Judge within a period of 7 days from the date of receipt of the present order to the effect that they shall not apply for unnecessary adjournment and will cooperate with the hearing before the court concerned.
(3) Upon filing such undertaking, the learned appellate Judge is requested and directed to re-hear and decide afresh Regular Civil Appeal No.24 of 2019 as early as possible, preferably within a period of 3 months from the date of receipt of this of this court.
11. With aforesaid observations and directions, the present Second Appeal stands allowed.
ORDER IN CIVIL APPLICATION NO.1 OF 2020 In view of the order passed in main Second Appeal, the present civil application does not survive and the same stands disposed of accordingly.
(ASHUTOSH J. SHASTRI, J) NVMEWADA Page 9 of 9 Downloaded on : Fri Oct 09 22:56:06 IST 2020