Gujarat High Court
Parmar Chimanbhai Parshottambhai vs Parmar Keshavbhai Bhupatbhai on 11 October, 2021
Author: B.N. Karia
Bench: B.N. Karia
C/SCA/12212/2017 ORDER DATED: 11/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12212 of 2017
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PARMAR CHIMANBHAI PARSHOTTAMBHAI
Versus
PARMAR KESHAVBHAI BHUPATBHAI & 2 other(s)
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Appearance:
MR. BK. RAJ(3794) for the Petitioner(s) No. 1
DELETED(20) for the Respondent(s) No. 3
MR PARTHIV B SHAH(2678) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 11/10/2021
ORAL ORDER
1. By preferring this petition, the petitioner, who is the original plaintiff in Special Civil Suit No. 93 of 2009 and appellant in Misc. Civil Appeal No. 147 of 2011, has challenged the impugned order dated 23rd March, 2017 passed by the Principal District Judge below Exhibit:15 in Misc. Civil Appeal No. 147 of 2011 and impugned order dated 7th May, 2011 passed by the learned Additional Senior Civil Judge, Vadodara below Exhibit:5 in Special Civil Suit No.93 of 2009.
2. Short facts of the present case may be summarized as under:
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C/SCA/12212/2017 ORDER DATED: 11/10/2021 2.1 As per the averments made by the petitioner in Special
Civil Suit No. 93 of 2009 filed against the respondent no. 1, an agreement of mortgage was executed between them and Rs. 50,000/- was paid by the petitioner to respondent no. 1 in respect of land i.e Survey No. 235/3 admeasuring 0.29 - 34 situated in Village 'Serkhi' of District Vadodara as per the terms of the agreement dated 24th April, 2001. 2.2 It was further averred that possession of land was handed over to the petitioner by the respondent. no. 1 for the next five years. It was further contended that Rs. 3,02,000/- was paid by the petitioner to the respondent no. 1 and another written agreement - conditional sale deed was exhibited on 7 th October, 2005. As per the condition in the second agreement, if the defendant would not repay the amount, then he will execute sale deed in favour of the petitioner and respondent no. 3. After the span of 2 years, respondent no.1 failed to repay the amount and to execute the sale deed, and therefore, the petitioner filed Regular Civil Suit No. 1203 of 2008 before the Civil Court, Vadodara on 23rd October 2008 with a prayer to restrain the respondent no. 1 from executing sale deed and other instruments in favour of the third party. Interim Page 2 of 15 Downloaded on : Sun Jan 16 23:11:09 IST 2022 C/SCA/12212/2017 ORDER DATED: 11/10/2021 Application for injunction Exhibit: 5 was preferred by the petitioner which was rejected by learned Additional Senior Civil Judge in Regular Civil Suit No. 1203 of 2008 vide order dated 30th August, 2010. Meanwhile, respondent no. 1 sold disputed property to respondent no. 2 by way of registered sale deed dated 23rd October, 2008. The petitioner was threatened by the respondent no. 3 on 04.02.2009 and therefore, another suit was filed by the plaintiff being Special Civil Suit No. 93 of 2009 because of new cause of action for protection of his possession and quashing the sale deed dated 23rd October 2008, executed by the respondent. no 1 in favour of respondent no. 2. Application for interim injunction was preferred by the petitioner vide Exhibit:5 which was also rejected by the learned Additional Senior Civil Judge by order dated 7th May 2011. The petitioner preferred Misc. Civil Appeal No. 197 of 2011 before the learned Principle District Judge which came to be rejected vide order dated 21 st March, 2017. Being dissatisfied with the impugned order passed by the Principal District Judge, Vadodara, in Misc. Civil Appeal No. 147 of 2011, the petitioner has approached this Court.
3. Heard learned advocates for the respective parties. Page 3 of 15 Downloaded on : Sun Jan 16 23:11:09 IST 2022
C/SCA/12212/2017 ORDER DATED: 11/10/2021
4. It is submitted by learned advocate appearing for the petitioner that the impugned order passed by the Trial Court is contrary to the facts and law. It is further submitted that the petitioner has paid Rs. 3,52,001/- towards conditional sale deed - mortgage dated 7th October, 2005 and however, on technical ground of unregistered documents at very early stage of the suit before recording evidence, prayer was rejected by the Court below. It is further submitted that facts of the possession of this suit premises lying with the petitioner were not properly appreciated by the Court below. It is further submitted that at the time of executing first mortgage deed i.e. on 24h of April, 2001, plaintiff/petitioner is in possession inof the suit property. It is further submitted that Panchnama prepared by the Court Commissioner in Regular Civil Suit No. 1203 of 2008 clearly established the possession of the plaintiff which was erroneously not considered by the Court below. That the Court-below has committed an error by not appreciating the statements and affidavits of the witnesses, who have supported the possession and execution of conditional sale deed in favour of the petitioner. It is further submitted that the possession of the petitioner is required to Page 4 of 15 Downloaded on : Sun Jan 16 23:11:09 IST 2022 C/SCA/12212/2017 ORDER DATED: 11/10/2021 be protected as since 2001, he is in the possession of the suit property on the basis of the agreement executed by the original defendant No. 1 in respect of the suit property. Hence, it is requested by learned advocate appearing for the petitioner to quash and set aside the impugned order dated 21 st of March, 2017 passed by the Principal District Judge below Exhibit: 15 in Misc. Civil Appeal No. 147 of 2011 and impugned order dated 7th May, 2011 passed by the learned Additional Senior Civil Judge, Vadodara below Exhibit:5 in Special Civil Suit No. 93 of 2009. In support of his arguments, learned advocate for the petitioner has relied upon the following judgments:
(i) Padhiyar Prahladji Chenaji Vs. Maniben Jagmalbhai reported in 2019 (1) GLR 782;
(ii) Ashwinkumar K. Patel Vs. Upendra J. Patel and others reported in (1999) 3 SCC 161;
(iii) Alka Gupta Vs. Narender Kumar Gupta reported in (2010) 10 SCC 141;
5. Per contra, learned advocate appearing for the respondents no. 1 & 2 strongly argued that present petition is not maintainable. In support of his arguments, learned Page 5 of 15 Downloaded on : Sun Jan 16 23:11:09 IST 2022 C/SCA/12212/2017 ORDER DATED: 11/10/2021 advocate for the respondents has relied upon the judgment in the case of Bharatbhai Hasmukhbhai Oza Vs. Gandabhai Khodabhai Desai and 1 reported in 2014 SCC OnLine Guj. 9238.
6. Referring an application Exhibit:59 in Special Civil Suit 93 of 2009, preferred by the petitioner annexed at Page No.127, it is submitted that during the pendency of the suit, application Exhibit:59 was submitted by the petitioner before the Trial Court under Order 1 Rule 10 of the Civil Procedure Court disclosing that during the pendency of the suit, defendants have transferred the suit property by registered sale deed dated 7th of March, 2011 to No.(1) Mr. Milind Vijaybhai Thakkar and No. (2) Vijaybhai Manubhai Thakkar. It was requested to join them as the defendants as they were necessary parties. Referring the order passed below Exhibit:59 at page no. 132, it is submitted that by order dated 18 th of January, 2017, application preferred by the plaintiff, was allowed and proposed parties were permitted to be joined as defendants. Accordingly the Plaint was amended by the petitioner, however, they are not joined in preent proceedings by the present petitioner and only on this ground, present petition is required to be dismissed. It is further submitted Page 6 of 15 Downloaded on : Sun Jan 16 23:11:09 IST 2022 C/SCA/12212/2017 ORDER DATED: 11/10/2021 that in Regular Civil Suit No. 1203 of 2008 preferred by the petitioner against the defendant No. 1, an application under Order 39 Rule 1 and 2 of the Civil Procedure Court was rejected wherein, no appeal was preferred by the present petitioner. The second suit i.e. Special Civil Suit No. 93 of 2009 was filed by the present petitioner on 7 th of May 2011 wherein, also application for interim injunction was preferred by the petitioner which was rejected with sufficient reasons. It is further submitted that second suit is clearly hit by Order 2 Rule 2 of the Civil Procedure Code. The learned District Judge has committed no error in rejecting the appeal preferred by the present petitioner. The second agreement dated 7th October 2005 preferred by the petitioner was forged and bogus as there was no signature of the respondents as per the hand writing expert. The panchnama prepared by the Court Commissioner in a Regular Civil Suit No. 1203 of 2008 was considered by the Court below in that suit and application for interim injunction was rejected. It is submitted that the plaintiffs are free to produce sufficient evidence to establish his possession in respect of the suit property during the trial, and therefore, order passed by the District Court confirming the order passed by the Trial Court is just legal and proper. Page 7 of 15 Downloaded on : Sun Jan 16 23:11:09 IST 2022
C/SCA/12212/2017 ORDER DATED: 11/10/2021 Hence it was requested by learned advocate from the respondent to dismiss the petition.
7. Having heard learned advocates for the respective parties and perused the material on record, it appears that the petitioner and the respondent no.3 - original plaintiff filed two suits before the Civil Court and first Civil Suit was registered as Regular Civil Suit No.1203 of 2008, filed by the plaintiff for declaration and injunction and for protection of possession of the suit land. It also appears that they also filed second suit being Special Civil Suit No.93 of 2009 for specific performance of contract and for cancellation of sale deed. It also appears that mortgaged deed was executed in favour of the plaintiff on 26.04.2001 for a period of 5 years, and thereafter, one another agreement was executed of which plaintiff is treating it as agreement to sell, and therefore, after a span of 3 years from the date of execution of the said agreement, on 23.10.2008, as the defendants of the suit were trying to disturb the possession, they filed Regular Civil Suit No.1203 of 2008, and thereafter, the plaintiff filed another suit being Special Civil Suit No.93 of 2009. It appears that in Regular Civil Suit No.1203 of 2008, an application for interim injunction was rejected by the Civil Court on 30.08.2010. The said order was Page 8 of 15 Downloaded on : Sun Jan 16 23:11:09 IST 2022 C/SCA/12212/2017 ORDER DATED: 11/10/2021 not challenged by the original plaintiff and findings as well as order passed below Exh.5 in Regular Civil Suit No.1203 of 2008 has attained finality. If we consider the order passed in the application for injunction preferred by the plaintiff in the second suit being Special Civil Suit No.93 of 2009, dated 07.05.2011, learned Civil Judge has clearly referred the earlier proceedings filed by the plaintiff and again, rejected the application for injunction preferred by the plaintiff. It was observed that second suit filed by the plaintiff was hit by Order 2 Rule 2 of CPC and dismissed the injunction application vide order dated 07.05.2011 in Special Civil Suit No.93 of 2009. As discussed above, the plaintiff has nowhere challenged the order passed below Exh.5 in Regular Civil Suit No.1203 of 2008. The plaintiff has tried to establish the possession over the suit land relying upon the panchnama carried out in Regular Civil Suit No.1203 of 2008 which was carried out pursuant to the order dated 25.10.2008 passed by the learned Civil Judge. After considering the above said panchnama carried out in Regular Civil Suit No.1203 of 2008, learned Civil Judge has rejected the application for injunction preferred by the plaintiff. It appears from the order passed by the learned Appellate Judge that the document examined Page 9 of 15 Downloaded on : Sun Jan 16 23:11:09 IST 2022 C/SCA/12212/2017 ORDER DATED: 11/10/2021 dated 24.04.2001 is said to have been contract of mortgage executed on a non-judicial stamp paper of Rs.20/- and mortgage money of Rs.50,001/- only. As per the observations, the said document was unregistered and referring Section 17 read with Section 49 of the Registration Act, it was observed that if any contract having value is more than Rs.100/-, it should compulsory be registered contract and except certain modalities, any unregistered document cannot be taken into consideration as evidence even for collateral purpose. Second contract dated 07.10.2005 was also considered by the learned Appellate Court paying more amount of Rs.3,02,000/- only and total Rs.3,92,001/-. It also appears that the second document was seriously disputed by defendant no.1 saying that there was no signature made by him in this document. The defendant had also produced an opinion of handwriting expert at Mark-36/2 opined that defendant no.1's signature was not endorsed on second document produced at Mark-4/2, and therefore, it was rightly observed by the First Appellate Court that the defendant has successfully raised suspicious circumstances rebutting the plaintiff's claim that he is in settled and legal possession and has got right to execute the sale deed qua suit land from Mark-4/2. While filing the Page 10 of 15 Downloaded on : Sun Jan 16 23:11:09 IST 2022 C/SCA/12212/2017 ORDER DATED: 11/10/2021 second suit i.e. Special Civil Suit No.93 of 2009, there was no record available with the plaintiff on filing of the suit that they are in possession of the suit property. They only relied upon the documents i.e. Court Commissioner Report at Mark-4/8 which was prepared in earlier suit i.e. Regular Civil Suit No.1203 of 2008. The Court Commissioner is not permitted to establish the possession of the suit property of either side while preparing the panchnama. The Court Commissioner cannot favour either side to establish the possession of the said property by recording the statement of any neighbour or any other third party Further, it appears that the respondent no.2 is the purchaser of the suit land with whom the plaintiff has no contract, and therefore, he would not be entitled to seek remedy available under Section 53(a) of the T.P. Act against non-party to the contract. The plaintiff has failed to prove the legal possession over the suit property.
8. In the case of Ashwinkumar K. Patel Vs. Upendra J. Patel (supra), the Hon'ble Apex Court considered the peculiar facts of the case and opined that where agreement for sale of land found to be invalid but plaintiff proved possessory right and permissive possession which accepted by owners, plaintiff Page 11 of 15 Downloaded on : Sun Jan 16 23:11:09 IST 2022 C/SCA/12212/2017 ORDER DATED: 11/10/2021 entitled to temporary injunction in his favour. Hence, it was further held on facts that the High Court in appeal committed an error in remitting the temporary injunction application to the Trial Court for disposal afresh merely because it disagreed with reasoning of the Trial Court. In the instant case, the defendants have never accepted the possession of the suit property of the plaintiff.
9. In the case of Padhiyar Prahladji Chenaji Vs. Maniben Jagmalbhai (supra), which has been relied upon by learned advocate for the petitioner, it was a case of the plaintiff in the suit for cancellation of sale deed, declaration and injunction and the Trial Court as well as the First Appellate Court declined to grant relief of declaration. The question was whether relief of permanent injunction could be granted. Considering the concurrent finding by the Courts-below that the plaintiff was in possession of land in question, it was held that the relief of injunction if can be independently claimed then, it is not a consequential relief. If a person is in settled possession, he cannot be evicted except in accordance with law. Here facts are quite different from the facts of cited judgments. Here there is no question of eviction except in Page 12 of 15 Downloaded on : Sun Jan 16 23:11:09 IST 2022 C/SCA/12212/2017 ORDER DATED: 11/10/2021 accordance with law by the defendants as no plea was raised by the defendant in the suit.
10. In the case of Alka Gupta Vs. Narender Kumar Gupta (supra), which has been relied upon by learned advocate for the petitioner/plaintiff, it was held that bar of second suit under Order 2 Rule 2 of the Code of Civil Procedure, 1908 would not be applicable where the second suit is based on a different and distinct cause of action.
11. In the instant case, second suit was preferred by the plaintiff on the same cause of action except adding ground that some additional amount was paid by the plaintiff to the defendant no.1 and second document i.e. Mark-4/1 was executed in their favour which was prima facie falsified by the handwriting expert in his opinion that the signature of the defendant no.1 was not found, and therefore, the judgment relied upon by learned advocate for the petitioner would not help to the case.
12. In the case of Bharatbhai Hasmukhbhai Oza Vs. Gandabhai Khodabhai Desai (supra) referring the case reported in 2011(3) GLR 1951 Hon'ble the Supreme Court has observed in Paragraph-8 as under:
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C/SCA/12212/2017 ORDER DATED: 11/10/2021 "8. It is required to be kept in mind that the present Appeal from Order is filed under the provisions of Order 43 Rule 1(r) of the Code and challenge in this appeal is a discretionary order passed by the learned trial Judge under the provisions of Order 39 Rules 1 and 2 of the Code. In case of Matrix Telecom Pvt.Ltd. V/s. Matrix Cellular Services Pvt. Ltd. reported in 2011(3) GLR 1951, this Court, in paras 6 and 6.1, observed as under:-
"6. Before proceeding further it is required to be noted that the present appeal is against the rejection of interim relief and the main suit is still pending. If this court elaborately deals with the matter on merits it is likely that the same would prejudice the case of either side. Therefore, it is well settled law that this Court is not required to go into the merits of the entire matter at this stage and what is required to be seen is whether the appellant-plaintiff has made out a prima facie case or not for grant of interim injunction.
6.1. It is required to be noted that it is well settled law that the Appellate Court may not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court will not reassess the material and seek to reach a conclusion Page 14 of 15 Downloaded on : Sun Jan 16 23:11:09 IST 2022 C/SCA/12212/2017 ORDER DATED: 11/10/2021 different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion."
13. Against the order passed under Order 39 Rule 1 and 2 of the CPC, scope of interference is very limited. This Court would not interfere with the discretion exercised by the Court of first instance and substitute its own discretion except when exercise of discretion was arbitrary or perverse. View taken by the Court of first instance was not perverse and after considering the relevant facts, prayers made by the petitioner to interfere in the impugned order passed by the learned First Appellate Court in Misc. Civil Appeal No.147 of 2011 below Exh.5 dated 07.05.2011 or order passed by the learned Additional Senior Civil Judge, Vadodara below Exh.5 in Special Civil Suit No.93 of 2009 are not warranted to be interfered with. Hence, this petition is hereby dismissed. Notice is discharged. Interim relief granted vide order dated 03.07.2017 shall be vacated forthwith.
(B.N. KARIA, J) rakesh/ Page 15 of 15 Downloaded on : Sun Jan 16 23:11:09 IST 2022