Gujarat High Court
Shanti Life Space Pvt Ltd Through ... vs Umang Satishbhai Chokhawala on 9 May, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/6235/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6235 of 2019
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SHANTI LIFE SPACE PVT LTD THROUGH AUTHORISED PERSON NITIN
CHUNIBHAI GAJERA
Versus
UMANG SATISHBHAI CHOKHAWALA
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Appearance:
MR IH SYED, Learned Senior Counsel with MR YH MOTIRAMANI(3720) for
the Petitioner(s) No. 1
DR SHAILESH R PATEL(6044) for the Respondent(s) No. 1,2,3
MR VIRAL K SHAH(5210) for the Respondent(s) No. 1,2,3
MR.DIVYESH G NIMAVAT(3757) for the Respondent(s) No. 10
NOTICE SERVED BY DS(5) for the Respondent(s) No. 11,4,5,6,7,8,9
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 09/05/2019
ORAL ORDER
1. The present petition is filed under under Articles 226 and 227 of the Constitution of India for the purpose of seeking following reliefs: "7(A) That the Hon'ble Court may be pleased to issue a writ of certiorari and / or a writ in the nature of certiorari and / or any other appropriate writ order or direction to quash and set aside the order dated 26.03.2019 passed below application Exh.15 in Special Civil Suit No.87/2019 by the learned 13th Additional Senior Civil Judge, Surat;
(B) Pending admission and final hearing of this petition, this Hon'ble Court may be pleased to stay implementation, operation Page 1 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER and execution of judgment dated dated 26.03.2019 passed below application Exh.15 in Special Civil Suit No.87/2019 by the learned 13th Additional Senior Civil Judge, Surat;
(C) for exparte ad interim relief in terms of prayer (B) above;
(D) to dispense with certified copy of impugned order dated 26.03.2019 passed below application (Exh.15) in Special Civil Suit No.87/2019 by the learned 13th Additional Senior Civil Judge, Surat (E) for costs;
(F) For such other and further relief as the circumstances of case may require."
2. The premise on which the present petition is brought before the Court is that respondent Nos.2 and 3 (original plaintiffs No.2 and 3) claimed to have purchased a flat bearing No.A11 and A12 in the scheme known as Bhavidarshan Sankul which is situated on land bearing revenue Survey No.3, TP Scheme No.4, OP 3334, FP 41 admeasuring 26572 Sq. Meter. Respondent No.1 is merely a Power of Attorney Holder of respondent nos.2 and 2 who are original plaintiffs as stated above and similarly respondent No.4 (original plaintiff) claims to have purchased a flat bearing No.B/32 in the said scheme. It is further the case of the petitioner that though the original plaintiffs owned only three flats of the entire scheme, a suit is filed for the purpose of cancellation of partnership Page 2 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER deed executed by and between the defendants over above restoration of the scheme - Bhavidarshan Sankul. The original plaintiffs also claims to have submitted the aforesaid Special Civil Suit No.87/2019 and accordingly have filed an application under Order 1 Rule 8 of the Code of Civil Procedure.
3. It appears that according to the petitioner the learned trial Court have passed same order on application under Order 1 Rule 8 of the Code. As a result of this, plaintiffs have published a notice in Gujarat Mitra and Gujarat Darpan, daily newspaper on 6.3.2019 seeking other flat holders to be joined as party in Special Civil Suit No.87/2019. This suit was filed on 27.2.2019 and the same was kept on 25.3.2019. The petitioner who is the original defendant No.1 alongwith other defendants appeared through advocate and requested for time to file reply to the plaint as well as against the injunction application. On the same day, the learned advocate for the plaintiff filed application Exh.15 seeking an appointment of Court Commissioner. To this application, learned advocate for the defendant sought time to file reply to this application. However, on that day, according to the petitioner the learned trial Court orally indicated to meet the submission on that very day and upon the Page 3 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER insistence of learned Court, the advocate for the defendant compelled to remain present though the suit was posted for further hearing on 1.4.2019. Surprisingly, according to the petitioner, the order has been passed below Exh.15, though the proceedings of the suit were not on Board, the said order passed on 26.3.2019 and as such according to the petitioner, though the suit proceedings were adjourned for the purpose of allowing defendant to file reply on 1.4.2019, prior thereto without giving any opportunity, an order is passed below Exh.15 on 26.3.2019 and by granting such order, the learned trial Judge has, at the instance of petitioners, allowed the commission work to be undertaken with respect to all flats which are 864 in numbers. A mention is made in the petition when the original plaintiffs are merely two flat holders and at their instance, the entire commission work is allowed without granting opportunity to the petitioners. Based upon the specific averments on oath contained in paragraph Nos.3(B) and (D) as well as (E) and (F), the petition came to be moved before this Court and notice was issued on 29.3.2019 and considering the peculiar set of circumstances, relying upon the averments contained in para 2.4 of the petition, the Court granted adinterim relief. Subsequently, the learned advocate Mr.V.K. Shah on behalf of the Page 4 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER contesting respondent No.1 to 3 submitted affidavit in reply and the matter was heard on 15.4.2019 at length and with this background, the present petition is heard by the Court.
4. Learned advocate Mr.I.H. Saiyed appearing with Mr.Y.H.Motiramani has vehemently contended that a serious irregularity has taken place in respect of exercise of jurisdiction by the learned trial Judge and the order is passed behind the back of the petitioner. It has been submitted that though the suit proceedings were adjourned on 1.4.2019, the proceedings were taken up on 26.3.2019 and order came to be passed without granting any opportunity to the petitioner below Exh.50. A specific averment to that effect is made on oath by the petitioner in para 2.4 and detailed out in ground No.3(B) and has submitted that this is nothing but a gross irregularity which may not be allowed to be processed further. He has further drawn the further attention of this Court to the status report / case details by annexing the same on page No.69 onwards and on page No.71, a specific attention is drawn, therefore, the purpose of reply main suit was placed for hearing on 1.4.2019. He has further reiterated that no opportunity has been given to the petitioner before present order at Exh.15. He has further Page 5 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER submitted that here is a case in which a serious mischief is tried to be committed by the original plaintiff that though there are merely 2 flat holders are interesting, other members of the Society and though were not authorized have obtained an order of Court Commissioner of 864 flats which is causing prejudice to the case of the petitioner. He has further submitted that practically, the defendants have not been heard at all before passing an order and hence, this being violation of principle of natural justice, only on this ground, the order be set aside. It has been submitted that it is settled position of law that for the purpose of gathering material and evidence, Court Commissioner may not be appointed. Hence, this material irregularity which has been occurred in exercising discretion, the Court may kindly correct the same by setting aside the impugned order. It is also not understandable that as per the Court, status report on page No.71, it is clearly visible that for the purpose of Written Statement / Reply to Exh.15, matter was posted and kept on 1.4.2019 and before that could take place, the order on Exh.15 application is passed on 26.3.2019 which is also the relevant circumstance not possible to be ignored by this Court.
5. After reiterating the aforesaid submission at Page 6 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER length, a request is made to grant relief as prayed for in the petition. No other submissions have been made.
6. To meet with the stand taken by learned advocate for the petitioner, Mr.Viral K. Shah, learned advocate appearing for respondent Nos.1 to 3 and Mr.Divyesh G. Nimavat, learned advocate appearing for respondent No.10 have vehemently opposed the petition.
7. Mr.Shah, learned advocate appearing for respondent nos.1 to 3 has submitted that in fact with a view to arrive at a just decision, the local inspection is ordered which can be said to be no wrong. On the contrary, the Court can suo motu exercise such power looking to the provisions contained under Order 26, R9 of CPC. He has further submitted that facts are so peculiar that unless and until there is a Court Commission, no just order can be delivered by the Court and as such a detailed affidavit is filed on behalf of respondent No.1 pointing out the chronology of events which took place before passing an order before the Court below. By narrating the time wise circumstances which have been taken place, Mr.Shah has contended that this order in question is passed after granting an opportunity of hearing to the advocate. It is not Page 7 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER an exparte order and having participating in hearing which took place before passing an order by the learned Judge, it is not open for the petitioner to assail the order on the ground of violation of principle of natural justice. It has been submitted that continuing the work of destruction at the sight can be ascertained by video recording which took place on 29.3.2019 as well as on 31.3.2019. Hence, the order which has been passed is just and proper.
8. He has further contended that infact the false averments are made by the petitioner while persuading the Court and as such on this count alone, the petition be dismissed. The averments which are made in para No.2.4 are nothing but far from truth. Infact, Mr.K.M. Patel, learned advocate was heard who has argued and submitted of the jurisdiction to the Court at a relevant point of time when the order was passed. So, it is not proper to submit by the petitioner that no hearing took place. By referring to a decision delivered by the Court reported in 2010(2) SCC 114, it has been submitted that this is nothing but an abuse of process of Court. Hence, no equitable relief be granted in favour of the petitioner. He has further stated that it may be that petitioner is holding few flats, that would not debar the petitioner for claiming local Page 8 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER inspection which is evidently necessitated in ultimate outcome. In fact, the application was contested in detail and the same was vehemently opposed. He has relied upon few decisions. List is attached but without the copies of said decisions and surprisingly has also relied upon one decision which is reported in 2010(2) SCC
114. So having not produced and agitated the submissions on the basis of other judgments, the Court is not called upon to analyze the ratio laid down in such decisions. He has further submitted that on the contrary in an application at Exh.16 which was given, the learned advocate appearing for the respondent nos.1 to 7 has put a signature and the order which has been pronounced on 26.3.2019 in which also the learned advocate has put an endorsement of "seen" and acknowledge the order. Therefore also, it is not just and proper on the part of the petitioner to agitate about the hearing issue before an order. He has further submitted that Exh.15 application which has been submitted on 25.3.2019 in which also the learned Judge has passed an order and fixed for hearing on 26.3.2019 and the copy of the said application was also given to the learned advocate. Hence, in view of the submissions made by the learned advocate Mr.Shah, that mere ordering local inspection would not prejudice any Page 9 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER of the defence of the petitioner. When that being so, there is hardly any ground available to the petitioner to challenge the order. The sequence of event which took place before the date of passing an order is making it clear that there is no irregularity of any nature as has been tried to be projected. Accordingly, petition being devoid of merit, deserves to be dismissed. No other submissions have been made.
9. From the aforesaid peculiar set of circumstances, the judgment which has been relied upon reported in 2010(2) SCC 114, the facts are quite distinct from what has been on hand. On the contrary, the facts which are on hand, are not similar to that of the said judgment and further, it is not possible to consider whether any material is suppressed or not and since there is word on oath against the Court record, this Court is not inclined to utilize the said judgment in peculiar set of circumstances. If it was possible for this Court to conclude substantially that actual hearing did take place, possibly, consideration might have been different, but in a situation like this, the aforesaid judgment cannot be applied as a straight jacket formula.
10. Mr.Nimavat, learned advocate appearing for the other respondents has also adopted the stand Page 10 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER of Mr.Shah and requested the Court to dismiss the petition.
11. In connection to this, learned advocate Mr.Viral Shah has reiterated that there is no actual hearing took place when the order came to be passed. In fact, the application and its hearing was kept on 1.4.2019 and as such there was no reason for the learned Judge to prepone the hearing and to pass a cryptic order. He has further reiterated that infact on 26.3.2019, the matter itself was not on Board and the matter was adjourned to 1.4.2019 in the presence of all the parties to the proceedings namely their representative. It has been contended that in a situation like this even if Court was inclined to prepone, then, procedure contained under Order 36Rule 8(3) of the Code must have been observed which is mandatory in nature and here in the case on hand, no such notices were given. Therefore, correct procedure has not been observed the order in question is not sustainable in the eye of law. He has further contended that these are the elements which have grossly abused the process of Court and at the instance of 2 flat holders, the entire development work has been kept under clout. In fact, such kind of local inspection has frequently been taken out and uptill now as many as with respect to this very premises, 11 local Page 11 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER inspections have taken place by one or the other person and as such local inspection is tried to be utilized for the purpose of creating complication in the entire litigation. Hence, this attempt must be curbed and with a view to facilitate a litigant to secure evidence, the Court machinery by local inspection should not be allowed to be utilized. Hence, the order under challenge is required to be set aside.
12. Having heard the learned advocates for the parties and having gone through material on record, few circumstances are not possible to be unnoticed by this Court. It is undisputedly reflecting that plaintiffs No.2 and 3 are the holders of flat No.A/11 and A/12 in a scheme which is known as Bhavi Darshan. They are merely the owners of two flats. However, the suit has been filed in respect of entire scheme. It is also visible from record that the trial Court while dealing with the application Exh.15 has earlier posted the matter for further stage on 1.4.2019 but then the same appears to have been taken earlier for hearing though the matter was not on Board on 26.3.2019 and then, order is passed. It also appears that at the instance of those two flat holders, the local inspection is ordered to be undertaken of almost 864 flats and, there is a serious grievance reflecting on oath Page 12 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER that actual hearing has not taken place on 26.3.2019 when the order came to be passed. Even reiteration has taken place by the petitioner in affidavit in rejoinder as well that matter was postponed to 1.4.2019 and at 5.15 pm, order appears to have been passed below Exh.15. The chronology of events which have been pointed out by both the sides is leading to a situation where there is serious grievance with regard to an issue whether actual detailed hearing has taken place or not on the date on which learned Judge passed an order i.e. 26.3.2019. Both the sides have put up their stand by way of assertion on oath. In this situation, the status report which has been produced on page No.69 of petition, is indicating on page no.71 that 13th Additional Senior Civil Judge has adjourned the case on 1.4.2019 for the purpose of filing Written Statement / reply. Now, as against this, official record of Court, an assertion is made by the learned advocate by filing personal affidavit, the matter was adjourned to 26.3.2019 which was well within the knowledge of the learned advocate representing the petitioner and infact the submissions were also made. So on one hand, the Court record indicates that matter is postponed to 1.4.2019 whereas, advocates assertion is that it was kept on 26.3.2019 for hearing in which the learned advocate participated. So in a situation Page 13 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER like this, it is not possible to conclude confidently that hearing has taken place on 26.3.2019 since there is a conflict between the status report of the Court and the advocates' assertion on oath.
13. Further, it appears to this Court that the suit has been filed by plaintiffs for claiming reliefs as mentioned in para 13 reflecting on page No.38 and in the suit, an impression is sought to be created as if the same is submitted in a representative capacity. Be that as it may, the order under challenge is passed ordering local inspection in a routine manner. The reason which has been assigned to pass the order is to facilitate to ascertain the actual position but then yet the interim relief application appears to have been awaiting for hearing. Thus grant of local inspection may be taken an advantage by the plaintiff to secure the material in their favour and to facilitate the further evidence to be obtained. The haste which has been shown by the Court is also not understandable, particularly when the report was ordered to be submitted on or before 1.4.2019, when the matter was adjourned for reply to application and as such it appears from the record that order is passed in a hurried manner and there is a serious issue with regard to actual hearing.
Page 14 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER14. As a result of this, the Court would like to set aside the impugned order consequently by directing to hear and decide afresh application Exh.15 by giving full opportunity to the respective parties.
15. It also appears that on 28.3.2019, this Court issued NOTICE, returnable on 29.3.2019 and in the meantime, interim relief in terms of para 7(B) was granted with direct service in view of the urgency. On the next date, i.e. on 29.3.2019, interim relief was continued since the affidavit inreply was submitted. It was agitated that despite order dated 28.3.2019 was served on the same day in the evening, the clarification was sought but then after hearing at length to both the learned advocates, as said earlier, the issue is not satisfactorily explained. This Court, if is of the opinion that the interest of justice would be met, if in a situation like this, afresh hearing in a time schedule can take place. Hence, without much entering into merits and demerits of the contention on validity of the order, this Court would like to remand the matter back for fresh consideration, particularly, when provision under Order 39Rule 8(3) of the Code appears to have been complied with and further, there is a conflict between the Court record and the version Page 15 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER of the original respondent herein.
16. Hence, following directions would meet the end of justice: (A) The impugned order dated 26.3.2019 is quashed and set aside hereby with a consequential direction to fix the hearing of application Exh.15 within a period of one week from the date of receipt of Writ of this Court and the same shall be reheared on its own merits after giving full opportunity to both the sides and the learned Judge shall pass a fresh order in accordance with law by assigning reasons.
(B) It is made clear that since the Court has directed the application Exh.15 to be reheard and decided afresh, this Court has not expressed any opinion with regard to merit of this application Exh.15 and it is left it open for the learned Judge to take any decision on the basis of the submissions made by both the sides without being influenced by the observations contained in the impugned order.
17. In view of aforesaid observations and Page 16 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019 C/SCA/6235/2019 ORDER directions, this petition stands disposed of. Parties are directed to cooperate with the concerned learned Judge in a time schedule. Notice is discharged. Interim relief, granter earlier, stands vacated forthwith. There shall be no order as to costs.
(A.J. SHASTRI, J) VATSAL S. KOTECHA Page 17 of 17 Downloaded on : Wed Jul 03 00:31:16 IST 2019