Gujarat High Court
Amrishbhai Rambhai Patel & vs Shashikant Vasudevbhai Patle & ... on 1 August, 2014
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
C/MCA/1021/2014 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION (FOR REVIEW) NO. 1021 of 2014
In APPEAL FROM ORDER NO. 17 of 2013
With
MISC.CIVIL APPLICATION NO. 1022 of 2014
In
APPEAL FROM ORDER NO. 17 of 2013
With
CIVIL APPLICATION NO. 3763 of 2014
In
MISC.CIVIL APPLICATION NO. 1021 of 2014
================================================================
AMRISHBHAI RAMBHAI PATEL & 1....Applicant(s) Versus SHASHIKANT VASUDEVBHAI PATLE & 12....Opponent(s) ================================================================ Appearance:
MR PERCY KAVINA, SENIOR ADVOCATE with MR VIRAL K SHAH, ADVOCATE for the Applicant(s) No. 1 - 2 ABHISST K THAKER, ADVOCATE for the Opponent(s) No. 1 MR AMRISH K PANDYA, ADVOCATE for the Opponent(s) No. 2 MR DHAVAL N VAKIL, ADVOCATE for the Opponent(s) No. 2 MR MS BHATT, ADVOCATE for the Opponent(s) No. 12 - 13 MR RJ GOSWAMI, ADVOCATE for the Opponent(s) No. 9 - 11 MR RT SONGARA, ADVOCATE for the Opponent(s) No. 12 - 13 NOTICE SERVED BY DS for the Opponent(s) No. 3 - 8 ================================================================ CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 01/08/2014 CAV ORDER (1) The applicants here in have preferred two Misc. Civil Applications being MCA no. 1021/2014 seeking review and recall of orders dated 02/04/2013 and 26/04/2013 and other Page 1 of 20 C/MCA/1021/2014 CAV ORDER consequential relief on the ground that original appellant in Appeal from Order no. 17/2013 had practiced fraud in connivance with other respondents at the time of filing said A.O. and that they had suppressed material facts and misrepresented facts also.
MCA 1022/2014 is preferred by present applicants seeking extension of time in disposing of Special Civil Suit no. 1100/2011 pending before Civil Court of Ahmedabad Rural. One Civil Application being C.A. no. 3763/2014 in MCA 1021/2014 is preferred by applicants seeking impleadment of one Neetaben Shah and Arvind Barot - who are purchasers of the lands indispute; on the ground that those persons in connivance with original appellant had practiced fraud upon the Hon'ble Court. (2) As the prayers sought by present applicants in MCA 1021/2014 directly affects said Neetaben Shah and Arvind Barot, they are required to be joined as party respondents in MCA 1021/2014. Even otherwise registered sale deed is executed in favour of those persons qua the disputed lands. Hence, they are required to be joined as party respondents. In that view of the matter, C.A. no.3763/2014 is allowed and said Neetaben Shah and Arvind Barot are ordered to be joined as party respondents no. 14 and 15 in MCA no.1021/2014.
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C/MCA/1021/2014 CAV ORDER (3) At the outset it is required to be noted here that much has been submitted on behalf of respondents concerning various litigations of the land in question. Firstly this court tried to restrain advocates of respondents from making submissions qua all those litigations as in the opinion of this court those litigations would have little bearing for present MCA. But it was insisted by learned advocates appearing for respondents that they wanted to make submissions qua those litigations. Hence, this court was left with no other alternative but to deal with each and every submission made by both the sides and to deal with documents produced by both sides.
(4) It is the case of applicants here in that lands bearing survey number 695/2 and 693 of village Makarba was originally purchased by one Prabhudas Vallabhdas Modi by way of registered sale deed dated 23/10/1986. It is the further case of present applicants that on 01/02/2007 said Prabhudas Modi executed an agreement for sale in favour of one Chelabhai Harjibhai Desai. On 02/02/2007 one Kabaja Karar and one Power of Attorney Deed was executed by said Prabhudas Modi in favour of said Chela Desai. In short, it is the case of applicants that Page 3 of 20 C/MCA/1021/2014 CAV ORDER original owner virtually had transferred all his rights over the said lands in favour of said Chela Desai. On 04/07/2008, said Chela Desai as Power of Attorney holder of Prabhudas Modi executed registered sale deed of lands in dispute in favour of one Bhagvanbhai Patel and other five persons (total six persons) and handed over possession to them. On 08/07/2008 one Agreement for sale was executed by five out of six purchasers in favour of present applicants and handed over possession to present applicants.
(5) It is the further the case of present applicants that to frustrate rights of present applicants over the disputed lands, one fraudulent gift deed of 25/07/2008 - 28/07/2008 was created by one Ashok Modi - son of original owner Mr.Prabhudas Modi. As per applicants apart from the fact that Prabhudas Modi could not have executed gift deed in favour of Ashok as he had lost his rights from disputed lands, the so called gift deed is forged one and that Prabhudas Modi and Ashok Modi shared turbulent relations and that Prabhudas Modi had also filed criminal complaints against Ashok Modi.
(6) Based on said fraudulent gift deed, Ashok Modi executed a
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C/MCA/1021/2014 CAV ORDER
registered sale deed in favour of said Neetaben and Arvindbhai on 28/09/2010. As can be seen from perusal of said sale deed, the same got executed on 28/09/2010 but it got registered only on 18/05/2013 i.e. after 2 years and 8 months from its execution. During this period, one Special Civil Suit no. 1100/2011 was filed by plaintiffs seeking specific performance of contract, declaration and also seeking permanent injunction. Below injunction application, on 09/11/2012 trial court passed the order directing both the parties to maintain status quo. Against that order passed by trial court, A.O. 17/2013 was preferred by present respondent no. 1 which got dismissed on 02/04/2013.
(7) There are various civil suits filed for the land in question, details of which is as follows:-
(7.1) R.C.S. 569/1998 This civil suit was filed by Ashok Modi against his family members seeking declaration and Permanent Injunction. In this civil suit a compromise purshish was executed on 24/12/2007 which was filed in the court on 01/08/2008. Ultimately the suit got disposed of on 18/08/2008 as per the said compromise purshish.
(7.2) Sp.C.S 399/2008 This civil suit was filed by Bhagwanbhai Patel Page 5 of 20 C/MCA/1021/2014 CAV ORDER and others against Prabhudas Modi and others. In this civil suit on 28/09/2008 a Panchnama was drawn where in possession of plaintiff was established. In this civil suit compromise purshish was filed by plaintiff no. 1 to 3 and 5. As per the same court ordered disposal of suit. Against that order, plaintiff no. 4 and 6 preferred review application which came to be allowed on 11/08/2011.
(7.3) Sp.C.S 51/2009
This suit was filed by Chela Desai against
Bhagwanbhai Patel and others seeking cancellation of registered sale deed dated 04/07/2008. This suit came to be unconditionally withdrawn by plaintiff on 27/02/2011.
(7.4) Sp.C.S. 455/2009 This suit was filed by Ashok Modi against Prabhudas Modi and others in which a compromise purshish was filed by parties and accordingly the suit got disposed of.
(7.5) Sp.C.S. 1100/2011 This suit is filed by applicants of present applications. This suit is at the stage of trial. Present proceedings are arising out of this suit.
(7.6) Sp.C.S. 391/2013 This suit is filed by Ashok Modi against Nitaben Shah and others seeking cancellation of registered sale deed of Nitaben. Page 6 of 20
C/MCA/1021/2014 CAV ORDER
This suit is also pending.
(7.7) Sp.C.S 298/2014
This suit is filed by Rajesh Rawal and Siraj Modan against Nitaben Shah and others again seeking cancellation of registered sale deed of Nitaben. This suit is also pending. (8) Learned counsel Mr.Kavina for the applicants submitted that fraud is practiced by present respondents by material suppression and misrepresentation. He further submitted that the sale deed in favour of Neetaben and Arvind Barot got executed on 28/09/2010.
That deliberately respondents did not get it registered so that it is not noticed by present applicants. It is further submitted that before the trial court, present respondents filed their written statements where in also they did not disclose the fact of execution of said sale deed. Even before this court, in Appeal from Order, original appellant did not disclose fact of execution of sale deed though he was one of the confirming parties of the said sale deed. (9) It is further submitted by learned counsel of applicants that with malafide intention fact of execution of sale deed was withheld by all respondents. It is further submitted by learned advocate of applicants that in fact, the said so called sale deed is in breach of Page 7 of 20 C/MCA/1021/2014 CAV ORDER injunction order. To substantiate his said contention, he relied upon orders passed in two separate proceedings. He submitted that one Civil Suit no. 399/2008 was filed for the lands in dispute where in trial court on 22/09/2008 granted ad interim ex parte injunction. That the said order was extended from time to time. Thereafter on administrative side, District Court called for record of the said civil suit, which was sent back by District Court to Trial Court only on 11/03/2011. In the submission of learned counsel for applicants, obviously during that period applications for extension of injunction could not be given by plaintiff there in. But injunction is assumed to have been extended. During that period, sale deed is executed in favour of Neetaben and Arvindbhai. It is contended that this way, the said sale deed is in breach of injunction. He further submitted that even order passed by Trial Court in Sp.C.S 1100/2011 as confirmed by this court was in operation when said sale deed got registered. Hence, registration of the sale deed was also in breach of injunction order. Contending all these points, it is submitted that MCA may kindly be allowed.
(10) This MCA is opposed by learned counsel appearing for respondents. Except for respondent no. 12 and 13, all other respondents have contested the MCA contending inter alia that Page 8 of 20 C/MCA/1021/2014 CAV ORDER MCA is not maintainable in view of the fact that trial of Sp.C.S 1100/2011 has commenced. It is further submitted that order passed by this court as well as that of the trial court are not flouted by the respondents. It is submitted that in fact, by inadvertence the sale deed got executed on 28/09/2010 which subsequently got registered on 18/05/2013. It is further submitted that technical breach of orders passed by competent courts is not intentional but as a result of oversight the same has happened.
(11) Learned counsel for respondent no.12 and 13 have contended that contempt is committed by all the respondents except respondent no. 12 and 13 in executing sale deed in favour of Neetaben and Arvindbhai on 28/09/2010 and later on registering it on 18/05/2013. It is submitted further that MCA qua respondent no. 12 and 13 be dismissed and the same qua other respondents be allowed.
(12) This court has gone through all the papers of the matter, considered rival submissions and has given its thoughtful consideration to contentions raised on behalf of both the sides. So far as delay caused in preferring above captioned MCA is concerned, the same is condoned in view of the fact that as and Page 9 of 20 C/MCA/1021/2014 CAV ORDER when registered sale deed which was executed on 28/09/2010 and which got registered on 18/05/2013 came to the knowledge of present applicants, they have preferred above captioned MCA. Even otherwise also, present respondents have not contested the delay seriously and have rather contested the matter on merits. Hence, in the interest of justice, delay caused in preferring above captioned MCA is condoned and the same is considered on merits.
(13) Let's first examine the sale deed executed in favour of respondents no. 14 and 15 i.e. Neetaben Shah and Arvind Ramprasad Barot. Circumstances under which the same got executed is relevant. From perusal of papers it is clear that original owner of the lands in dispute Shri Prabhudas Modi had executed an agreement for sale, Kabaja Karar and Power of Attorney Deed in favour of Chela Desai. Hence, virtually all the rights of disputed lands had given away by Prabhudas in favour of said Chela Desai. Said Chela Desai in turn executed registered sale deed in favour of six persons and put them into possession of the disputed lands. Now the question which this court is required to consider is whether after execution of documents in favour of Chela Desai, Prabhudas could have executed any document in favour of any Page 10 of 20 C/MCA/1021/2014 CAV ORDER person? And if Prabhudas executed any such document what could be its value?
(14) It is claimed by present respondents especially respondents no. 1, 2, 8, 9, 10, 11, 14 and 15 that on 25/07/2008 - 28/07/2008 a gift deed was executed by deceased Prabhudas in favour of Ashok Modi and pursuant to said gift deed, registered sale deed came to be executed by Ashok in favour of Neetaben and Arvind in which other respondents have joined themselves as confirming parties. It is pertinent to note here that in his entire lifetime, Prabhudas did not share cordial relations with Ashok. Not only that but he had filed criminal complaints against him as well. Hence there was no question of Prabhudas executing any gift deed in favour of Ashok. (15) It is also required to be mentioned here that even if Prabudas wanted to execute gift deed in favour of Ashok, he could not have done so as he had executed various documents in favour of Chela Desai who in turn had executed registered sale deed in favour of Bhagvanbhai Patel and other 5 persons who in turn had executed agreement for sale and supplementary agreement in favour of present applicants on 08/07/2008. Hence, after creation of interest of present applicants over the disputed lands, neither gift deed Page 11 of 20 C/MCA/1021/2014 CAV ORDER could have been executed in favour of Ashok nor Ashok could have executed sale deed in favour of Neetaben and Arvind Barot. (16) Apart from the fact that such sale deed could not have been executed due to lack of right, even otherwise also, the same is hit by injunction order operative for the disputed lands. This court finds that in a collusive manner, taking orders passed by different courts at ride, sale deed is executed on 28/09/2010 and the same is registered on 18/05/2013. As stated here in above, in Civil Suit no. 399/2008, ad interim ex parte injunction was passed by the trial court, which was extended from time to time. It was only when the District Court on administrative side called for the papers of the said civil suit that further extension was not possible. Present respondents could not have taken undue advantage of the said situation and could not have entered into a collusive sale deed on 28/09/2010. It is also observed by this court that registration of said sale deed on 18/05/2013 is clearly in violation of injunction order passed in Special Civil Suit no. 1100/2011. Hence, both the ways this court finds sale deed of 28/09/2010 in violation of injunction orders passed by competent courts. (17) There is yet another angle of the matter. Perusal of Page 12 of 20 C/MCA/1021/2014 CAV ORDER agreement for sale dated 08/07/2008 goes to show that the same is executed for total consideration of Rs. 12,00,00,000/-. Where as the registered sale deed of 28/09/2010 is entered into for total consideration of Rs. 2,84,12,000/- . This fact itself shows that so called sale deed of 28/09/2010 is collusive one and the same is entered into to frustrate rights of present applicants over the disputed lands.
(18) Even otherwise also, disputed lands are in possession of present applicants. Why would a person enter into a registered sale deed of which his seller is not in possession of? It is also required to be noted here that one Sp.C.S. 455/2009 was filed by Ashokbhai for the disputed lands. In that civil suit, on 21/03/2011 one compromise purshish is filed where in it is categorically accepted by him that registered sale deed of 04/07/2008 is correct and legal. If that be so, necessary corollary is that agreement for sale which is based on registered sale deed of 04/07/2008 is correct and legal.
(19) It is observed by this court that there are various civil suits filed for the land in question. Firstly R.C.S 569/1998 was filed by Ashok Modi against his father Prabhudas Modi and others. In this Page 13 of 20 C/MCA/1021/2014 CAV ORDER suit compromise purshish was filed on 01/08/2008. Accordingly the suit got disposed of on 18/08/2008. Hence, it is clear that after creation of third party interest i.e. Chela Desai in present case, even if any compromise is arrived at between the parties of R.C.S 569/1998, the same is not binding to such third party or to any person deriving any right from such third party. (20) In Sp.C.S 399/2008 a Panchnama was drawn by court commissioner on 28/09/2005 where in possession of Bhagwanbhai Patel is established. Even before filing of this suit, on 08/07/2008 an agreement for sale was executed in favour of present applicants by plaintiffs of said civil suit. Still however, on 18/03/2011 a compromise purshish was filed by plaintiffs except plaintiff no. 4 and 6 accepting rights of defendants. Hence, the question arises here is whether such compromise is binding to present applicants when they were not parties to said suit at all? It is a well known principle of law that compromise operates as contract between parties amongst whom the same is entered into and not to third party. Hence, such compromise would not wash off rights of present applicants over the lands in question. Similarly compromise purshish filed in Sp.C.S 455/2009 and order passed there on would also not bind present applicants. Page 14 of 20
C/MCA/1021/2014 CAV ORDER (21) In Sp.C.S 51/2009 which was filed by Chela Desai against Bhagwanbhai Patel and others, a written statement is filed by Bhagwanbhai Patel and others where in execution of agreement for sale in favour of present applicants as well as handing over possession of the land in question to present applicants is admitted by Bhagwanbhai and others. It is also admitted in the said written statement that huge consideration is accepted from present applicants. Hence, though in present proceedings execution of agreement for sale in favour of present applicants is disputed by some of the respondents especially respondent no. 12 and 13, the said dispute has no value in the eyes of law. (22) In Sp.C.S 391/2013 Ashok Modi has categorically stated that by using fraudulent practice Neetaben Shah and Arvind Barot have got executed registered sale deed in their favour. The said civil suit is pending.
(23) Hence it is found by this court that registered sale deed in favour of Neetaben Shah and Arvind Barot is lacking in many material particular. Firstly it can not be said that the said is executed bonafide. In fact, execution and registration of the said is completely collusive and fraudulent. Secondly this court does not Page 15 of 20 C/MCA/1021/2014 CAV ORDER find any right flowing from such sale deed especially when prior interest was created in favour of present applicants. At this juncture, will of Prabhudas Modi dated 25/08/2009 is also relevant. Undoubtedly this is the last will of Prabhudas Modi. In this will it is categorically stated by Prabhudas Modi that he had executed various documents in favour of Chela Desai. It is also categorically stated by Prabhudas Modi that his son and daughter are illegitimately pressurizing him not to execute documents in favour of Chela Desai. This has got support from the affidavit of Ashok himself which is sworn on 24/10/2011.
(24) It is observed by this court that on behalf of respondent no. 12 and 13 it is submitted empathetically that they have not executed agreement for sale in favour of present applicants. In support of their said submission, they have placed reliance upon cross examination of present plaintiff in Sp.C.S. 1100/2011. It is also empathetically submitted by them that they have got 75% ownership over the land in question. Though this court finds both the questions to be not relevant for present purpose, as much emphasis is supplied by present respondent no. 12 and 13 upon these two issues; this court is constrained to deal with them. Page 16 of 20
C/MCA/1021/2014 CAV ORDER (25) At the instance of present respondent no. 12 and 13, this court has gone through cross examination of present applicant in Sp.C.S 1100/2011. This court finds nothing in the said cross examination which would either strengthen the case of present respondent no.12 and 13 or weaken the case of present applicants. So far as second submission of 75% ownership is concerned, to say the least, it is nothing but a dishonest attempt on part of present respondent no. 12 and 13 in claiming so though registered sale deed does not speak of it at all. On the contrary, registered sale deed speaks of equal rights of all the purchasers of land in question. Hence, both submissions made on behalf of present respondent no. 12 and 13 are ill founded. (26) This leads to another aspect of the matter. In given set of facts what relief could be granted to applicants? Applicants have sought for following reliefs:-
(a) admit and allow above captioned Civil Misc. Application.
(b) review and recall orders dated 02.04.2013 and 26.04.2013.
(c) order initiation of criminal prosecution against respondents for practicing fraud upon the Trial Court as well as upon this Hon'ble Court.
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C/MCA/1021/2014 CAV ORDER (d) Pursuant to fraud practised upon trial court as well as
upon this Hon'ble Court, acts done and transactions entered into be declared null and void;
(e) other consequential reliefs may kindly be granted.
(f) pass such other and further necessary, orders, as deemed fit & proper in the interest of justice.
(27) In the case of Union of India vs. Sandur Manganese & Iron Ores Ltd., & Ors., reported in JT 2013 (8) SC 275, the Supreme Court has held that, "it has been time and again held that the power of review jurisdiction can be exercised for the correction of a mistake and not to substitute a view. In Parsion Devi & Ors. vs. Sumitri Devi & Ors. (JT 1997 (8) 480 : 1997 (8) SCC 715) this Court held as under :-
"9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be Page 18 of 20 C/MCA/1021/2014 CAV ORDER allowed to be "an appeal in disguise".
(28) So far as initiation of criminal prosecution against respondents are concerned, though this court comes to the conclusion that fraud is practiced by respondents with the court by suppressing documents and by withholding those documents, this court restrains itself from ordering any criminal prosecution against those respondents. At the same time liberty is reserved in favour of applicants to initiate appropriate criminal proceedings against respondents in appropriate forum.
(29) So far declaring transactions entered into by respondents as null and void is concerned, this court thinks it fit to leave it to trial court where in Sp.C.S no.1100/2011 is pending for adjudication. Hence, at this juncture no relief in favour of present applicants can be granted in present proceedings particularly when civil suit is pending. So far as MCA 1022/2014 is concerned, trial court is directed to dispose of Sp.C.S 1100/2011 as expeditiously as possible from receipt of this order, especially when parties have informed this court that trial is at the fag end. (30) With these observations, above captioned Misc. Civil Applications are dismissed.
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C/MCA/1021/2014 CAV ORDER (31) In view of order passed in Misc. Civil Applications the Civil
Application No.3763 of 2014 is disposed of accordingly.
(Z.K.SAIYED, J.) KKS Page 20 of 20