Gujarat High Court
Liliben Gabubhai Wd/O.Gabbhai ... vs Mohanbhai Govindbhai Patel Deceased ... on 3 March, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/MCA/3022/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION (FOR DIRECTION) NO. 3022 of 2012
In
MISC.CIVIL APPLICATION NO. 1581 of 2004
In
SPECIAL CIVIL APPLICATION NO. 10523 of 2004
================================================================
LILIBEN GABUBHAI WD/O.GABBHAI NARSINHBHAI & 5....Applicant(s)
Versus
MOHANBHAI GOVINDBHAI PATEL DECEASED (EXP. ON 21/7/09) &
2....Opponent(s)
================================================================
Appearance:
MR DEVANG T SHAH, ADVOCATE for the Applicant(s) No. 1 - 6
MR PREMAL NANAVATI, ADVOCATE WITH MS.DILBUR CONTRACTOR,
ADVOCATE for the Applicant(s) No. 1 - 6
MR DD VYAS, ADVOCATE for the Opponent(s) No. 1
MR DHAVAL D VYAS, ADVOCATE for the Opponent(s) No. 1.1 - 1.4
MR ABHISHEK MEHTA, ADVOCATE FOR MS SK VISHEN, ADVOCATE for
the Opponent(s) No. 2 - 3
================================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 03/03/2014
ORAL ORDER
1. Heard Mr.Nanavati, and Ms.Contractor, learned advocates for the applicants, Mr.Vyas, learned advocate for opponents No.1/A to 1/D and Mr.Mehta, learned advocate for Ms.Vishen, learned advocate for opponents No.2 and 3.
1 C/MCA/3022/2012 ORDER2. In present application, the applicants have prayed, inter alia, that:
"(6)(a) punish the opponents for committing breach of injunction by recanting and disobeying the specific statement made at Bar by the learned counsel of predecessor Shri Mohanbhai Govindbhai - original respondent in Spl. Civil Application No.10523/04 and Misc. Civil application No.1581/04 for giving consent to acceptance to earlier Possession Receipt dated 27 042006 and endorsing the transfer of possession in favour of Opponent Nos.2 and 3 by accepting outstanding amount of total amount to the tune of Rs.40,00,000/ from Opponent Nos.2 and 3 as agreed upon in earlier transaction dated 27042006, and further, by entering into new Possession Receipt dated 28012010 and transferred the paper possession of the property in question bearing Survey No.69/1/2A, Block No.117 admeasuring H. 15581 Sq/Mts. situated at moje Bhimrad, Taluka Choryasi, District Surat, and also for continuing in committing breach of the injunction by recanting and disobeying the specific statement made at Bar by the learned counsel of predecessor Shri Mohanbhai Govindbhai - original respondent in Spl.
Civil Application No.10523/04 and Misc. Civil application No.1581/04 for the property in question for giving consent to acceptance to earlier Possession Receipt dated 27042006 and endorsing the transfer of possession in favour of Opponent Nos.2 and 3 by accepting outstanding amount of total amount to the tune of Rs.40,00,000/ from Opponent Nos.2 and 3 as agreed upon in earlier transaction dated 27042006, and further, by entering into new Possession Receipt dated 28012010 and transferred the paper possession of the property bearing Survey No.69/1/2A, Block No.117 admeasuring H. 15581 Sq/Mts. situated at moje Bhimrad, Taluka Choryasi, District Surat, and also appropriately punish Opponent Nos.2 and 3 for becoming party to the continuous contemptuous action of deceased Mohanbhai and heirs and L/r of deceased Mohanbhai for entering into Possession Receipts dated 2742006 and 28012010 respectively;"
3. Briefly stated, the main grievance made by the applicants in present petition is that 2 C/MCA/3022/2012 ORDER despite the order passed by this Court in light of and after recording the statement made at bar and in breach of the assurance and undertaking given by the predecessor of opponents No.1/A to 1/D, a transaction came to be entered into between opponents No.1/A to 1/D and opponents No.2 and 3, as a result of which the land in dispute came to be sold and transferred in favour of the opponents No.2 and 3 and the opponents No.1/A to 1/D even parted with the possession of the land in question in favour of opponents No.2 and 3.
4. It is alleged that the said action and transaction are in stark in violation of the undertaking and assurance given to the Court and the statement made by learned advocate for the predecessor of opponents No.1/A to 1/D.
5. With such allegations and assertions, the applicants have taken out present application seeking abovequoted relief and directions 3 C/MCA/3022/2012 ORDER including the request that appropriate action for violating the statement and undertaking to the Court may be initiated against the opponents.
6. So as to support and justify the request made in the application, the applicants have averred and asserted that:
"3. The applicants/ original plaintiffs had filed a Regular Civil Suit No. 184/2003 in the court of Joint Civil Judge (SD) Surat for declaration and permanent injunction, with respect to the property being land bearing Survey No. 69/1/2 - A, Block No. 117 admeasuring H. 15581 Sq. Mts. Sitated at moje Bhimrad, Taluka Choryasi, District Surat. The land in question is part and partial of Town Planning Scheme No. 43 (Bhimrad), and allotted original plot No. 58 for th purpose of Town Planning Scheme. Annexed hereto and marked as ANNEXURE - 'A' to this application is the copy of Plaint Exh. 1 in Regular Civil Suit No. 184/2003 filed on 17.05.2003.
4. The applicants also filed an application below Exh. 5 for interim relief. But the learned Civil Judge (SD) Surat, after hearing respective parties, was to dismiss application Exh. 5 by his judgment and order dated 11.07.2003. Thus, Hon'ble Civil Judge (SD) Surat was pleased to direct the plaintiff to the suit to maintain status quo, pending the suit, by passing the aforesaid order. Annexed hereto and marked as ANNEXURE 'B' to this application is the typed copy of the Order dated 11.07.2003 passed by the learned Civil Judge (SD) Surat below application Exh. 5 in that suit.
5. Being aggrieved and dissatisfied by the said order dated 11.07.2003 passed by the learned Civil Judge (SD) Surat below application Exh. 5, the applicants preferred Misc. Civil Appeal No. 70/2003 in the court of 2nd Jt. District Judge, Surat. After hearing the respective parties, the 2nd Joint District Judge, Surat was pleased to dismiss the appeal by his order dated 16.02.2004. Annexed hereto and marked as ANNEXURE 'C' to this application is the copy of the 4 C/MCA/3022/2012 ORDER order dated 16.02.2004 passed in Misc. Civil Appeal No. 70/2003.
6. Therefore, the learned Appellate Court did not interfered with the order passed by the learned Trial Court passed below application Exh. 5, and the order to maintain status quo was upheld by the learned Appellate Court.
7. Being aggrieved and dissatisfied by the Order dated 16.02.2004 passed by the 2nd Jt. District Judge, Surat, in Misc. Civil Appeal No. 70/2003, the applicants preferred Special Civil Application No. 10523/04 before this Hon'ble Court. After hearing the parties, the applicants withdrew the said Spl. Civil Application on the same day. Annexed hereto and marked as ANNEXURE 'D' to this application is the copy of the order dated 27.08.2004 passed in the said Special Civil Application No. 10523/04 whereby this Hon'ble Court was pleased to permit the applicants to withdraw the aforesaid Spl. Civil Application.. The order is reproduced as follow::
"ORAL ORDER"
1. Learned Advocate for the petitioners seeks permission to withdraw this petition. Permission as prayed for is granted. Learned advocate for the respondent submits that, under the instruction of his client, the respondent no intends to sell the property in question.
2. Looking to the facts and circumstances of the case, the trial Court is directed to dispose of Regular Civil Suit No. 184 of 2003, pending before the Civil Judge S.D.) Surat, as early as possible.
3. In view of the above, this petition is disposed of, as withdrawn."
8. A specific statement was made at Bar by the learned counsel of the respondent therein that, 'under the instruction of his client, the respondent not intends to sell the property in question.'
9. The applicants were apprehending that the respondent may transfer the property, therefore, in order to invite a specific averment, the applicants filed Misc. Civil Application No. 1581/04. During the course of hearing of this application, a specific and categorical statement, in furtherance of earlier statement made in Spl. Civil Application No. 10523 of 2004, was made at Bar by the counsel of respondent therein that, the respondent shall not transfer the property in question in any manner. This statement was 5 C/MCA/3022/2012 ORDER recorded in the Order dated 21.09.2004 passed in Misc. Civil Application No. 1581/04 passed by this Hon'ble Court. Annexed hereto and marked as ANNEXURE 'E'(Colly.) are the copies of Misc. Civil Application No. 1581/04 and order dated 21/09/2004 passed in the said Application.
10. The applicants pertinently points out that, two consecutive statements were made at Bar by the learned counsel of the respondent therein (Shri Mohanbhai).
11. The applicants submit that, Shri Mohanbhai respondent in Spl. Civil Application No. 10523/04 and Misc. Civil Application No. 1581/04 had expired on 21.07.2009. In the meantime, draft Town Planning Scheme No. 43 was sanctioned on 29.12.2006 by the Government of Gujarat, and the property in question was given Final Plot No. 58 in lieu of original Plot No. 58 in view of the fact that the dispute in respect of the land in question is pending before the Civil Court, and considering the provisions under Section 46 of the Gujarat Town Planning & Urban Development Act. Annexed hereto and marked as ANNEXURE 'F'(Colly) are the copies of Form 'F' issued under the provisions of Town Planning Act and map of sanctioned draft Town Planning Scheme No. 43.
12. The applicants submit that, thereafter Government of Gujarat appointed Town Planning Officer under Section 50 of the Gujarat Town Planning Act for the purpose to draw preliminary scheme and complete other statutory formalities with respect to the said Town Planning Scheme No. 43 (Bhimrad). In the proposed preliminary Town Planning Scheme prepared by the concerned Town Planning officer, changed the entire nature of the status of land in question and the land in question was allotted Final Plot Nos. 25 and 82 in lieu of original Plot No. 58 i.e. the land in question, notwithstanding the fact that the dispute with regard to the land in question is pending before the competent Civil Court and orders passed by Trial Court as well as Hon'ble High Court. Annexed hereto and marked as ANNEXURE 'G' (Colly.) is the copy of Form 'F' along with the map issued under the provisions of the Gujarat Town Planning Act with respect to status of the land in question in the proposed preliminary Town Planning Scheme drawn by the Town Planning Officer. As of now, the proposed preliminary T.P. Scheme No. 43 (Bhimrad) is pending before the State Government for its sanction.
16. The applicants state that, from the date of institution of the civil suit till today, they are in possession of land in question, but fairly admit that 6 C/MCA/3022/2012 ORDER the issue of possession is pending before the competent Civil Court for final adjudication. However, the fact remains that, by execution of Possession Receipt dated 28.01.2010, acceptance of amount of Rs. 40,00,000/ and transfer of paper possession of the land in quest ion in favour of Opponent Nos. 2 and 3 is enough evidence to declare the Opponents guilty of committing breach of orders passed by this Hon'ble Court. In view of these facts, all opponents are guilty of committing deliberate, willful and intentional contempt of court by blatantly flouting two consecutive statements made at Bar observed in order dated 27.08.2004 passed in Spl. C.A. No. 10523 of 2004 and order dated 21.09.2004 passed in M.C.A. No. 1581 of 2004.
17. The applicants submit that, on the basis of illegal, incomplete and contemptuous Possession Receipt dated 28.01.2010, the Opponent No.3 Dineshbhai Maganbhai along with others misrepresented the entire fraudulent transaction before the Town Planning Officer and have been successful to obtain allotment of Final Plot Nos. 25 and 82 in lieu of original Plot No. 58. It may be pointed out that, it was well within the knowledge of the Town Planning Officer. The orders passed by this Hon'ble Court, the Town Planning Officer, in collusion with Opponent No.3 and others, allotted F.P. No. 25 and 82 absolutely illegally and without authority of law and usurping the powers of the State Government under Section 46 of The Gujarat Town Planning Act. Annexed hereto and marked as ANNEXURE 'K' is the copy of te application dated 31.08.2010 made by Opponent No. 2 and others seeking convenient favour with respect to allotment of final plot.
18. The applicants submit that, by committing this entire exercise, the opponents have made an effort in order to see that the Civil Suit No. 184/2003 filed by the applicants renders infructuous. Thus, the opponents have abused the process of court. Therefore also, the applicants most humbly pray that this is a fit case warranting interference of this Hon'ble Court under Sec. 151 CPC, quashing and cancelling or direct the opponents to cancel the fraudulent and contemptuous Possession Receipt dated 28.01.2010.
19. The applicants submit that, being seriously aggrieved and affected by misrepresentation producing illegal, incomplete and contemptuous Possession Receip before the Town Planning Officer to allot convenient final plot No. 25 and 82 in lieu of original Plot No. 58 under the proposed preliminary Town Planning Scheme, made a representation to the Secretary, Town Planning Department, Gandhinagar, dated 28.08.2012 to cancel the allotment of F.P. NO. 25 and 82 along with other 7 C/MCA/3022/2012 ORDER prayers. Annexed hereto and marked as ANNEXURE 'L' is the copy of the representation dated 28.08.2012.
20. The applicants submit that, opponent Nos. 1A to 1D are guilty of concealing vital facts with respect to the transfer of land in question, suppressed the material fact that predecessor in title of Opponent Nos. 1A to 1D entered into a Possession Receipt dated 27.04.2006 and Opponent Nos. 1A to 1D have entered into this latest Possession Receipt dated 28.01.2010 and thereby transferred the paper possession in favour of Opponent Nos. 2 and 3. Thus, opponent Nos. 1A to 1 D have played fraud upon the court by concealing these vital facts. The applicants humbly submits that, this is sufficient ground along with other grounds to punish the opponents for committing breach of injunction of this Hon'ble Court under O. 39 R. 2(a) CPC, and to cancel the invalid Possession Receipt dated 28.01.2010 by invoking inherent powers of this Hon'ble Court as contemplated under Sec. 151 CPC. The applicants submit that, this entire exercise of execution of unregistered Possession Receipt dated 28.01.2010, was carried out surreptitiously and with oblique motive to frustrate the entire litigation pending before the competent civil Court, came to the knowledge of the applicants, first time when they received information under the provisions of Right to Information Act from the office of concerned Town Planning Department. Therefore, the applicants are before this Hon'ble Court within reasonable time and limitation by way of filing this Misc. Civil Application. The applicants submit that, as stated herein above, thus, the opponents have continued committing contempt and disobedience of the order passed by this Hon'ble Court in furtherance to Possession Receipt dated 27.04.2006 entered into by predecessorintitle of Opponent Nos. 1A to 1D and by executing the latest Possession Receipt dated 28.01.2010 whereby the transfer of paper possession of land in question has been made in favour of Opponent Nos. 2 and 3. So much so, Opponent No.3 has misrepresented illegal, incomplete and contemptuous Possession Receipt dated 28.01.2010 as if the predecessor in title and Opponent Nos. 1A to 1D have transferred the lad in question by entering into a valid sale as contemplated under the provisions of the Transfer of Property Act, and conveniently got allotment of final plot Nos. 25 and 82 in their favour in collusion with the concerned Town Planning Officer, Therefore, Opponent Nos. 2 and 3 are also equally liable for act of committing contempt and disobedience of the orders passed by this Hon'ble Court."
8 C/MCA/3022/2012 ORDER7. What has emerged from the details mentioned by the applicants in present application is that present applicants had filed a suit being Regular Civil Suit No.184 of 2003. In the application seeking interim relief, the learned trial Court passed order dated 11.7.2003 against which the applicants preferred appeal which came to be registered as Misc. Civil Appeal No.70 of 2003.
The learned first appellate Court dismissed the appeal vide order dated 16.2.2004. Against the said order, the applicants preferred a writ petition being Special Civil Application No.10523 of 2004. According to the applicants, during the pendency of the said writ petition being Special Civil Application No.10523 of 2004, learned advocate for the respondents, under the instructions of the respondents, made a statement at the bar stipulating and declaring that the respondents do not intend to sell the property in question. In view of the said stipulation and declaration by learned advocate for the respondents, the Court disposed of the petition 9 C/MCA/3022/2012 ORDER vide order dated 27.8.2004, wherein the Court recorded statement/stipulation by learned advocate for the respondents. The applicants have also alleged that in view of certain subsequent actions of the opponents, the applicants apprehended that the opponents are acting or likely to act contrary to the assurance and undertaking given by them before this Court by way of stipulation by their counsel and that, therefore, the applicants preferred Misc. Civil Application No.1581 of 2004. The said Misc.
Civil Application No.1581 of 2004 came to be disposed of in light of the specific and categorical statement by the opponents undertaking that the opponents shall not transfer the property in question in any manner. Thus, the said application came to be disposed of vide order dated 21.9.2004, wherein the said statement came to be recorded. However, the opponents, according to the applicants' allegation, acted contrary to the statement made before this Court and committed breach of their stipulation and 10 C/MCA/3022/2012 ORDER undertaking given to the Court. Therefore, the applicants have taken out present application and alleged that in breach of their undertaking, promise and stipulation, the opponents have transferred the land in question for consideration of Rs.40 lakh and have executed possession receipt dated 28.1.2010 in favour of opponents No.2 and 3. The applicants have alleged that the opponents have also executed saata khat dated 27.4.2006 and have also issued possession receipt dated 28.1.2010 which are in breach of the undertaking before the Court. On such allegation, the applicants have prayed for abovequoted relief.
8. When the application making such allegations against the opponents came to be filed, this Court passed below mentioned order on 10.12.2012:
"Draft amendments are allowed. Office is directed not to mention the name of learned advocate Mr.D.D.Vyas for the opponent.
Notice returnable on 9.1.2013."11 C/MCA/3022/2012 ORDER
9. The said order was followed by order dated 28.1.2014, which reads thus:
"1. When the application is called out, learned advocate for opponent No.1 is not present. However, instead of passing of any order in absence of opponents No.1A to 1D, it is considered appropriate to grant one last opportunity to the said opponents. Mr.Mehta, learned advocate for opponents No.2 and 3 is present. He submitted that opponent No.2 is not keeping well, therefore, he is not present in the Court and opponent No.3 is out of country and he is likely to return on 2.2.2014.
2. Since learned advocate for opponent No.1 is not present, it appears that it would be necessary to direct opponents No.1A to 1D to remain present in the Court on the next date of hearing. Therefore, below mentioned order is passed:
Hearing is adjourned to 31.1.2014. Learned advocate shall inform the opponents No.1A to 1D instructing to personally remain present on the next date of hearing, i.e. on 31.1.2014. After opponent No.3 returns the opponents No.2 and 3 shall also appear before the Court.
For present, the directions to be issued qua opponents No.1A to 1D."
10. The said order was thereafter followed by order dated 3.2.2014, which reads thus:
"1. Mr. Mehta, learned advocate has tendered two affidavits made by respondent No.2. Both affidavits are of even dated i.e. 3.2.2014. In one of the two affidavits which came to be tendered subsequently i.e. affidavit which is at pages No. 103 and 104 the deponent has made certain statements in the affidavit which are contrary to the reply which the deponents gave in the Court in response to the query. On this count, learned advocate for the applicant has raised objection and he propose to file affidavit.
2. Despite the order date 31.1.2014 the respondent No.1/A, 1/B and 1/D are not present. So far the 12 C/MCA/3022/2012 ORDER respondent No.1/D is concerned, Mr. Vyas, learned advocate submitted that the said respondent suffers from paralysis and cancer and he is bedridden, therefore, he has not been able to attend the hearing.
3. In view of the aforesaid submission by Mr. Vyas, the presence of respondent No. 1/D is dispensed with.
4. So far as respondent Nos.1/A and 1/B are concerned, they are not present despite the order dated 31.1.2014, therefore, below mentioned order is passed: Issue Bailable Warrant against the said two respondents i.e. respondent No. 1/A and 1/B in the sum of Rs.5000/ returnable on 5.2.2014.
On the next date of hearing respondent No.2 shall remain present. So far as respondent No. 3 is concerned, today it is informed that he is presently at United State of America and is likely to return on 12.2.2014 and on his return he shall remain present."
11. Again the Court had to pass further order/directions vide order dated 5.2.2014, which read thus:
"1. Under order date 3.2.2014 presence of respondent No.1/D is dispensed with.
2. The opponent No.1/C remained present in the Court on the said date. So far as respondent No. 1/A and 1/B are concerned they did not remain present despite orders dated 28.1.2014 and 31.1.2014 and consciously disobeyed said two orders therefore, order dated 3.2.2014 was passed.
3. Today respondent Nos. 1/A, 1/B and 1/C are present in the court.
3.1 After not having remained present and having disobeyed the order passed by the Court, a common / joint affidavit is filed by respondent No. 1/A and 1/B stating, inter alia, that the respondents tender unconditional apology. The said affidavit reads thus: "1. I respectfully submit that this Honourable Court vide order's dated 28.1.2014 and 31.1.2014 had directed the answering 13 C/MCA/3022/2012 ORDER opponents to remain present before this Honourable Court.
2. For the fact that answering opponent's could not remain present before this Honourable Court on the mentioned dates, the answering opponents tender an unqualified and unconditional apology. I respectfully submit that we have high regard and respect for this Honourable Court and the orders passed in the proceedings It is humbly requested that in vie of the present affidavit and affidavit dated 3.2.2014, Honourable court may kindly accept the apology and pardon the answering opponents."
4. The direction passed by the court have been repeatedly disobeyed - on two consecutive occasions without any justification and any satisfactory explanation is also offered. On the condition that the said respondent (i.e. respondent Nos. 1/A and 1/B) shall pay a sum of Rs. 10,000/ (i.e. Rs.5,000/ each) to the High Court Legal Services Committee towards cost, the apology is accepted on further condition that the respondent Nos. 1/A and 1/B shall either remain present or pass appropriate authorization in favour of opponent No. 1/C and shall file an undertaking on affidavit that she shall abide by the acts of the respondent Nos. 1/C. On the said condition for the present, presence is exempted. However respondent No. 1/C, shall continue to attend the hearing. The said amount to be paid on or before 10.2.2014 and undertaking also to be filed on or before 10.2.2014. With a view to granting time to the learned advocate for the respondent Nos. 2 and 3 to take instruction, the proceedings are adjourned to 6.4.2014. The respondent Nos. 1/C respondent No.2 shall attend the hearing tomorrow.
S.O. to 6.2.2014 at 2.30 p.m."
12. Subsequently, order dated 11.2.2014 was passed, which reads thus:
"Mr. Vyas, learned advocate for the respondent No.1 submitted that respondent No.1/C is present in the Court. He also submitted that three respondents i.e. respondent Nos. 1/A, 1/B and 1/C have filed affidavit in compliance of the order dated 05.02.2014 and the amount of Rs.10,000/ is also deposited as per the direction in the order dated 5.2.2014.14 C/MCA/3022/2012 ORDER
Mr. Mehta, learned advocate for the respondent No.2 submitted that the respondent No.2 is present in Court however, arrival of respondent No.3 is delayed by few days and he is likely to arrive on 16.2.2014. Mr. Mehta, learned advocate for the respondent No.2 also submitted that the respondent would reverse the transaction and the process is commenced which will be completed as soon as the respondent No.3 arrives.
It is informed that today Mr. Contractor, learned advocate for the applicants has filed leavenote.
In that view of the matter hearing of present application is adjourned to 19.2.2014. On the said date the respondent Nos. 1/C, 2 and 3 will remain present.
It goes without saying that the respondents will abide by the affidavit / undertaking which are already filed and any nature of transaction with reference to the land in question will not be carried out."
13. The said order was followed by order dated 20.2.2014, which reads thus:
"Mr. Mehta, learned advocate for the respondent Nos. 2 and 3 has tendered document cancelling disputed transaction and the agreement.
A copy of the document is served to Mr. Nanavati, learned advocate and Ms. Contractor, learned advocate, for the applicant.
Since respondent No.3 has not filed affidavit and the undertaking, time to file affidavit and the undertaking is granted until 25.2.2013.
The respondent Nos. 1A to 1C and respondent Nos. 3 shall file affidavit tendering unconditional apology. Each one of them respondent No.2 shall file undertaking, on affidavit, that they shall abide by the document cancelling disputed transaction.
Such affidavit and undertaking to be filed on or before 25.2.2014.
The hearing of present application is adjourned since Mr. Vyas, learned advocate for the respondent has filed leavenote.15 C/MCA/3022/2012 ORDER
S.O. to 25.2.2014."
14. In pursuance of the said orders, the opponents have filed certain affidavits and undertakings from time to time.
15. Initially, the opponents No.1/A and 1/B filed a declaration, by way of an undertaking, which are notarised on 10.2.2014 declaring that the acts done and affidavits filed by opponent No.1/C will be binding on them. The said undertaking reads thus:
"I, Ramilaben wd/o Mohanbhai Govindbhai, Adult, Hindu, respondent No.1/A herein, do hereby solemnly affirm and say as under:
1. I respectfully say that this Hon'ble Court (Coram: Hon'ble Mr.Justice K.M. Thaker) has, vide oral order dated 5.2.2014 directed respondent Nos.1/A and 1/B to pay a sum of Rs.10,000/ (i.e. Rs.5,000/ each) to the High Court Legal Services Committee towards cost and the said sum of Rs.10,000/ has already been paid up to the Gujarat high Court Legal Services Committee towards cost on 6.2.2014. Pursuant to the further direction of this Hon'ble court dated 5.2.2014 that Respondent Nos.1/A and 1/B shall either remain present or pass appropriate authorization in favour of opponent No.1/C and shall file an undertaking on affidavit that she shall abide by the acts of the said Respondent No.1/C.
2. I, the respondent Nos.1/A, do hereby authorize the respondent No.1/C to act on my behalf in the captioned proceedings and I further declare that any acts and deeds of said respondent No.1/C done in the captioned proceedings shall be acts and deeds made on 16 C/MCA/3022/2012 ORDER my behalf and shall be binding on me, i.e. respondent No.1/A. Solemnly affirmed at Surat on this day of February, 2014."
16. Subsequently, opponents No.1/A and 1/B filed two separate but identical affidavits dated 24.2.2014 whereby opponents No.1/A and 1/B tendered unconditional apology and also declared and stipulated on oath that they undertake to abide by the deed cancelling the disputed transaction (possession receipt) and they shall honour the said undertaking and assurance. The said affidavit reads thus:
"I, Ramilaben wd/o Mohanbhai Patel, Age: Adult, Hindu, do hereby solemnly affirm on oath that I am conversant with the case and also competent and authorized to affirm an affidavit and state as under:
1. I tender unconditional apology for and on behalf of all the legal heirs of Shri Mohanbhai, which are stated not to be in compliance and in breach of this Hon'ble Courts order passed in the Appeal.
2. I further undertake before this Hon'ble Court that the present deponent shall abide by the document, cancelling the disputed transaction (possession receipts), and assure the Hon'ble Court that I shall honor the present undertaking in its true spirit.
What is stated hereinabove, is true and correct to the best of my knowledge, information and beief and I believe the same to be true.
Solemnly affirmed at on this day of February, 2014."
17 C/MCA/3022/2012 ORDER17. Opponent No.1/C also filed similar affidavit dated 24.2.2014 whereby he tendered unconditional apology and also declared and stipulated on oath that he undertakes to abide by the deed cancelling the disputed transaction (possession receipt) and he shall honour the said undertaking and assurance. The said affidavit reads thus:
"I, Pankajbhai Mohanbhai Patel, Age: Adult, Hindu, do hereby solemnly affirm on oath that I am conversant with the case and also competent and authorized to affirm an affidavit and state as under:
1. I tender unconditional apology for and on behalf of all the legal heirs of Shri Mohanbhai, which are stated not to be in compliance and in breach of this Hon'ble Courts order passed in the Appeal.
2. I further undertake before this Hon'ble Court that the present deponent shall abide by the document, cancelling the disputed transaction (possession receipts), and assure the Hon'ble Court that I shall honor the present undertaking in its true spirit.
What is stated hereinabove, is true and correct to the best of my knowledge, information and beief and I believe the same to be true.
Solemnly affirmed at on this day of February, 2014."
18. In addition to the abovementioned affidavits, opponent No.2 also filed an affidavit dated 3.2.2014 tendering unconditional apology.
18 C/MCA/3022/2012 ORDERIn the affidavit dated 3.2.2014, opponent No.2 has stated, inter alia, that:
"I, Naginbhai Parsottambhai Patel, Adult, Hindu, do hereby solemnly affirm and say as under:
1. I respectfully say that I have read a copy of the memo of the subject application and have also perused the relevant record pertaining to the captioned proceedings, including the order dated 21.9.2004 passed by this Hon'ble Court in Misc. Civil Application No.1581 of 2004. On the basis of this, I make the present affidavit.
2. At the outset, I most humbly and respectfully state that there has never been any intention much less deliberate or wilful intention on the part of the opponent No.2 or on the part of the opponent No.3 to disobey or flout the direction given by the Hon'ble Court in the aforesaid order dated 21.9.2004 and that the deponent holds this Hon'ble Court in the highest esteem. However, I hereby tender my unconditional and unreserved apology to this Hon'ble Court.
3. I respectfully say that I hereby assure this Hon'ble Court and further undertake that I will not transfer or alienate or create any third party right in the suit property till the final disposal of Regular Civil Suit No.184 of 2003 pending in the Court of learned Civil Judge (S.D.), Surat. I further assure this Hon'ble Court that necessary affidavit and undertaking would be filed on behalf of the opponent No.3 in the captioned proceedings to the effect that opponent No.3 will also not alienate, transfer or create any third party right over the lands in question.
4. In view of what is stated hereinabove, I most respectfully request to discharge the notice issued by this Hon'ble Court against the opponents.
What is stated hereinabove is true to the best of my knowledge and information derived from record and I believe the same to be true.
Solemnly affirmed at Ahmedabad on this 3rd day of February, 2014."
19. Opponent No.2 has also filed separate 19 C/MCA/3022/2012 ORDER undertaking dated 25.2.2014, which reads thus:
"I, Naginbhai Parsottambhai Patel, Adult, Hindu, do hereby solemnly affirm and state as under:
1. That I shall abide by the cancellation deed dated 13.2.2014 executed between the respondent nos.1/A, 1/B, 1/C on one hand and respondent no.2 and 3 on the other, cancelling the possession receipt dated 28.1.2010.
Solemnly affirmed at Ahmedabad on this 25th day of February, 2014."
20. The said opponent No.3 has also filed an affidavit dated 24.2.2014, which reads thus:
"I, Dineshkumar Maganlal Patel, Adult, Hindu, do hereby solemnly affirm and state as under:
1. I respectfully say that I have read a copy of the memo of the subject application and have also perused the relevant record pertaining to the captioned proceedings, including the order dated 21.9.2004 passed by this Hon'ble Court in Misc. Civil Application No.1581 of 2004. On the basis of this, I make the present affidavit.
2. At the outset, I most humbly and respectfully state that there has never been any intention much less deliberate or wilful intention on the part of the opponent No.3 to disobey or flout the direction given by the Hon'ble Court in the aforesaid order dated
21.9.2004 and that the deponent holds this Hon'ble Court in the highest esteem. However, I hereby tender my unconditional and unreserved apology to this Hon'ble Court.
What is stated hereinabove, is true and correct to the best of my knowledge, information and beief and I believe the same to be true.
Solemnly affirmed at Gandhinagar on this 24 day of February, 2014."
21. Opponent No.3 also filed an affidavit dated 20 C/MCA/3022/2012 ORDER 25.2.2014 declaring on oath that he shall abide by the cancellation deed. In the undertaking dated 25.2.2014, opponent No.3 has declared and stated and assured that:
"I, Dineshchandra Maganlal Patel, Adult, Hindu, do hereby solemnly affirm and state as under:
1. That I shall abide by the cancellation deed dated 13.2.2014 executed between the respondent nos.1/A, 1/B, 1/C on one hand and respondent no.2 and 3 on the other, cancelling the possession receipt dated 28.1.2010.
Solemnly affirmed at Ahmedabad on this 25th day of February, 2014."
22. At this stage, it is also relevant to mention that opponents No.2 and 3 have filed a deed / agreement which appears to have been notarised on 18.2.2014 stating, inter alia, that the disputed transaction entered into between opponents No.1/A to 1/D on one hand and opponents No.2 and 3 on the other hand is agreed to be cancelled and reversed and the parties would treat the said earlier transaction and Kabja Chitthi cancelled and reversed and all benefits, advantages, etc. received/drawn by virtue of the said disputed transaction / Kabja Chitthi are cancelled and 21 C/MCA/3022/2012 ORDER reversed and are to be treated as cancelled and reversed.
23. Since the Court did not find the said deed / agreement completely satisfactory and acceptable, the said opponents have executed another agreement / deed which is titled as cancellation deed / agreement and the said deed / agreement is notarised before the Notary on 27.2.2014.
24. The said cancellation deed / agreement is tendered on record. By virtue of the said cancellation deed / agreement, the parties, i.e. all opponents have agreed that the transaction in question and the Kabja Rasid dated 28.1.2010 and the Saata Khat dated 27.4.2006 are cancelled and for all purposes they are to be treated as cancelled and the benefits, advantages, etc. derived or drawn by any of the opponents by virtue of the said Saata Khat dated 27.4.2006 and the transactions as well as Kabja Rasid dated 28.1.2010 are cancelled and are to be treated as 22 C/MCA/3022/2012 ORDER and deemed to be cancelled and the transaction is reversed and that none of the opponents will claim any benefit or advantage on the basis of or in light of or on strength of the said Kabja Rasid dated 28.1.2010 and Saata Khat dated 27.4.2006 and/or the transactions dated 28.1.2010.
25. Mr. Nanavati and Ms. Contractor, learned advocates for the applicants, after going through the said deed and the earlier affidavits, declared and submitted that for the present the said assurance and deed would serve the interest of justice and they are in consonance with and compliance of the statement - undertaking dated 27.8.2004 and 21.9.2004 in Special Civil Application No.10523 of 1994 and Misc. Civil Application No.1581 of 2004 and the applicants' grievance is satisfied.
26. In view of the fact that by virtue of the said two cancellation deeds / agreements, i.e. 23 C/MCA/3022/2012 ORDER cancellation deed notarised on 18.2.2014 and cancellation deed dated 27.2.104, opponents No.1/A to 1/D as well as opponents No.2 and 3 have cancelled the Kabja Rasid dated 28.1.2010 and Saata Khat and the disputed transaction and also having regard to the unconditional apology tendered by all opponents in this application, the disputed transaction as well as Kabja Rasid stand cancelled. Considering the said aspect the applicants declared that they do not press the request for action against the opponents in present application for having committed breach of the statement made to this Court. In light of the abovementioned aspects, the Court accepts the unconditional apology by the opponents and in view of the said two cancellation deeds, the action against the opponents is dropped at this stage on the condition that opponents No.1/A to 1/D and opponents No.2 and 3 shall abide by and act in accordance with the cancellation deed / agreement referred to hereinabove and it is further clarified that it will be open to the 24 C/MCA/3022/2012 ORDER applicants to make appropriate application before the Town Planning Authorities in light of the said cancellation agreement / deed so as to request the Town Planning Authority to take appropriate action in accordance with the law and under the provisions of the relevant and applicable Act after taking into account the fact that said transaction as well as the Saata Khat dated 27.4.2006 and Kabja Rasid dated 28.1.2010 have been cancelled and reversed.
With the aforesaid clarification, the application is disposed of.
(K.M.THAKER, J.) Bharat 25