Gujarat High Court
Chirag Kirtikumar Mehta vs Pratapbhai Ganpatbhai Jagariya on 1 September, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/FA/2135/2021 ORDER DATED: 01/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2135 of 2021
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CHIRAG KIRTIKUMAR MEHTA
Versus
PRATAPBHAI GANPATBHAI JAGARIYA
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Appearance:
MR VIRAL K SHAH, ADVOCATE for the Appellant
MR MEET D KAKADIA, ADVOCATE for
MR SP MAJMUDAR, ADVOCATE for the Defendant No. 1
NOTICE SERVED BY DS for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 01/09/2022
ORAL ORDER
1. ADMIT. Learned advocates appears and waives service of notice of admission on behalf of the respective respondents.
2. Though served, the respondent No.2 has chosen not to appear.
3. The present appeal has been filed seeking the following prayers:-
"A. That the Hon'ble Court be pleased to quash and set aside the judgment and decree dated 03.02.2020 passed by the City Civil Court, Ahmedabad in Civil suit NO.308 of 2009.
B. Award Costs in favour of the appellants,
herein.
C. For such other and further reliefs as the
circumstances of the case may require."
4. Learned advocate Mr.Viral Shah, appearing for the appellant has submitted that the Court below has dismissed the suit filed by the present appellant only on the technical ground of the plaintiff i.e. the appellant has remained absent. It is further asserted that the Trial Court has also observed that Page 1 of 8 Downloaded on : Mon Sep 05 20:56:11 IST 2022 C/FA/2135/2021 ORDER DATED: 01/09/2022 the suit filed by the plaintiff is for negative declaration and hence, it is not maintainable. He has further submitted that such observation runs contrary to the prayers made in the plaint. Learned advocate Mr.Shah, appearing for the appellant has submitted that he has filed the suit being Civil Suit No.308 of 2009 with the specific prayers restricting the defendants from entering into the land bearing Survey No.417 paiki, sub- plot No.3, which belongs to the appellant. Further declaration is sought that the defendants have no right, title or interest in such plot No.3. He has submitted that it is asserted by the plaintiff that he is the owner of such plot. Further learned advocate Mr.Shah, has submitted that along with the plaint, the documents (11 in numbers) were annexed showing the interest of the plaintiff in the aforesaid plot of land.
4.1 Learned advocate Mr.Shah, has further submitted that the appellant had filed writ petition being Special Civil Application No.828 of 2017 seeking a direction directing the Trial Court to decide the applications below Exhs.22, 23, 39 and 40. It is submitted that the said writ petition was disposed of vide order dated 20.01.2017 by directing the Trial Court to dispose of the suit within a period of two months.
4.2 Learned advocate Mr.Shah, has further submitted that the Trial Court thereafter by the order dated 09.02.2017 rejected the application below Exh.39 and Exh.40, which constrained the appellant to file Appeal from Order No.87 of 2017 before this Court, on 09.03.2017, which was disposed of by the order dated 22.11.2018 by observing that the Trial Court shall decide the suit expeditiously within a period of 18 months.
Page 2 of 8 Downloaded on : Mon Sep 05 20:56:11 IST 2022C/FA/2135/2021 ORDER DATED: 01/09/2022 4.3 Learned advocate Mr.Shah, has further submitted that
the appellant was on a bona fide belief that while disposing of Appeal from Order No.87 of 2017, the order dated 09.02.2017 passed by the Trial Court rejecting the Exh.39 and Exh.40 were set aside and since it was found that no such directions were issued by this Court, the appellant filed Misc. Civil Application No.1 of 2019 for restoration and review / modification of the order dated 22.11.2018 passed by this Court in Appeal from Order No.87 of 2017. Along with this Misc. Civil Application No.1 of 2019, the appellant had filed Civil Application (Condonation of Delay) No.2 of 2019 which is still pending. He has submitted that during the pendency of the civil application, the suit has been dismissed. It is submitted that the order for closing the evidence of plaint it was passed on 28.06.2019, thereafter purshis Exh.109 was filed by the defendant No.1 for closing the evidence of the defendant No.1 on 03.08.2019 and accordingly, vide order dated 20.11.2019 for the right of defedant No.2 for leading the evidence was closed in the civil suit, and thereafter on 03.02.2020, the suit was dismissed. It is submitted by him that looking to the aforesaid dates, since the appellant was pursing the remedy before this Court, he could not appear in the civil suit.
4.4 Learned advocate Mr.Shah, has further submitted that the Trial Court has erred in holding that since the plaintiff has filed the suit for a negative declaration and hence, the same is not maintainable as per Section 34 of the Specific Relief Act, 1963. It is submitted by him that in the civil suit, the plaintiff has specifically averred and asserted that he is the owner of Page 3 of 8 Downloaded on : Mon Sep 05 20:56:11 IST 2022 C/FA/2135/2021 ORDER DATED: 01/09/2022 the suit property and he is in possession thereof and hence, the suit could not have been dismissed by making such observations. It is, thus, requested that the matter may be remanded and the suit may be restored, so that the same can be further examined on merits.
5. Per contra, learned advocate Mr.Kakadia, appearing for Mr.Majmudar, for the respondents - original defendant No.1 has submitted that there were various opportunities granted to the appellant to lead the evidence and appear before the Trial Court, however the appellant has chosen not to appear and did not file any list of witnesses, which he was required to file. It is submitted that as recorded in the order passed by the Trial Court, the matter was kept for leading evidence of the plaintiff on number of occasions, however, since he did not appear and the application dated 28.06.2019 was filed by the learned advocate appearing for the defendant No.1 closing the right of the plaintiff to lead the evidence and since he did not choose to lead the evidence, appropriate order was passed closing the stage of evidence on 20.11.2019. Thus, he has submitted that the impugned order may not be disbursed and interfered with.
5.1 Learned advocate has further submitted that the Trial Court has appropriately observed that the plaintiff has sought for negative declaration and hence, the suit is not maintainable.
6. I have heard the learned advocates appearing for the respective parties.
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7. The aforementioned facts and dates are not in dispute. From the aforesaid facts, it is noticed that the appellant had filed a writ petition being Special Civil Application No.828 of 2017 before this Court seeking direction directing the Trial Court to decide the application at Exhs.22, 23, 34 and 40. The aforesaid writ petition was disposed of vide order dated 20.01.2017 by directing the Trial Court to dispose of the suit within a period of two months. Thereafter, the Trial Court by the order dated 09.02.2017 rejected the application below Exh.39 and Exh.40, which constrained the appellant to file Appeal from Order No.87 of 2017 before this Court on 09.03.2017, which was disposed of by the order dated 22.11.2018 by observing that the Trial Court shall decide the suit expeditiously within a period of 18 months. It is the case of the appellant that while disposing of Appeal from Order No.87 of 2017 by the order dated 09.02.2017 passed by the this Court, it was found that no directions with regard to Exh.39 and Exh.40 were issued by this Court; the appellant filed Misc. Civil Application No.1 of 2019 for restoration and Review / Modification of the order dated 22.11.2018 passed by this Court in Appeal from Order No.87 of 2017. Along with this Misc. Civil Application No.1 of 2019, the appellant had filed Civil Application (Condonation of Delay) No.2 of 2019, which is still pending. During the pendency of the civil application, the suit has been dismissed and the order for closing the evidence of plaintiff was passed on 28.06.2019. Thereafter, the evidence of the defendant No.1 was closed vide order dated 20.11.2019. By the order dated 20.11.2019, the right to lead evidence of defendant No.2 was closed. Thereafter on 03.02.2020, the suit Page 5 of 8 Downloaded on : Mon Sep 05 20:56:11 IST 2022 C/FA/2135/2021 ORDER DATED: 01/09/2022 was dismissed by observing that since the plaintiff has filed the suit for a negative declaration and the same is not maintainable as per Section 34 of the Specific Relief Act, 1963 and also recording his absence.
8. The dates with regard to the closing of evidence are also not in dispute. It is also not in dispute that the appellant plaintiff was granted various opportunities to lead the evidence, however the appellant did not remain present before the Civil Court, but instead of pursuing the proceedings before this Court, however merely because he was pursuing such remedy, the same cannot absolve the appellant in appearing before the Civil Court. From the order, it is reflected that there were various opportunities granted to the plaintiff to lead the evidence, however he has chosen not to remain present and ultimately, on the application filed by the defendant, the stage of evidence was closed on 28.06.2019. Thereafter, the judgment was pronounced on 03.02.2020.
9. This Court cannot find fault in the approach of the Trial Court in proceeding with the suit since the plaintiff has chosen not to remain present, despite granting various opportunities. Though this Court is not in favour of condoning the approach of the appellant in conducting the suit, however at the same time, the Court cannot be oblivious to the fact that one of the reasons which has been assigned for dismissing the suit is reflected in paragraph No.18 of the impugned judgment.
10. It is specifically observed that the suit filed by the plaintiff (appellant) for negative declaration is not maintainable. This Page 6 of 8 Downloaded on : Mon Sep 05 20:56:11 IST 2022 C/FA/2135/2021 ORDER DATED: 01/09/2022 Court has perused the prayers made in the plaint, wherein a prayer is sought against the defendants seeking declaration that they have no right on the said plot and they may be restrained from entering into the plot and also restrained from interfering in the possession and used of the said plot. The averments made in the plaint reflect that the plaintiff - appellant has specifically asserted that he is the owner of the suit property and is in possession of the same. Since the specific assertion is made by the plaintiff with regard to the ownership of the concerned plot, it cannot be said that the prayers made in the suit are in the nature of negative declaration, which can be said to be contrary to Section 34 of the Specific Relief Act. Section 34 of the Act, reads as under : -
"34. Discretion of court as to declaration of status or right.--
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee."
11. Thus, when the prayers made in the plaint and the assertion made therein cannot in any manner suggest that there is a negative declaration sought by the appellant and on this sole ground, the impugned judgment and order is required to be set aside. However, looking to the approach of the Page 7 of 8 Downloaded on : Mon Sep 05 20:56:11 IST 2022 C/FA/2135/2021 ORDER DATED: 01/09/2022 plaintiff in not adhering to the orders and appearing on the specific date without any explanation, a cost of Rs.50,000/- needs to be imposed on the appellant.
12. The First Appeal is allowed. The impugned judgment and decree dated 03.02.2020 passed by the City Civil Court, Ahmedabad in Civil Suit No.308 of 2009 is hereby quashed and set aside. The suit being Civil Suit No.308 of 2009 is ordered to be restored to its original file. The Trial Court shall accordingly proceed with the suit from the stage of permitting the parties to lead the evidence, however it is clarified that looking to the conduct of the present appellant - original plaintiff in seeking the adjournment and not appearing, despite the directions issued by this Court vide order dated 22.11.2018 passed in Appeal from Order No.87 of 2017 with Civil Application No.1 of 2017, cannot be pardoned, hence the cost of Rs.50,000/- is imposed on the appellant - original plaintiff. The amount of Rs.25,000/- shall be deposited by him before the Gujarat State Legal Services Authority and the amount of Rs.25,000/- shall be paid to the defendant No.1. On production of such receipt of payment, the Trial Court shall restore the suit to its original file. The appellant - plaintiff shall fully cooperate with expeditious disposal of the suit. The aforesaid amount shall be paid within a period of three weeks from the date of receipt of order of this Court.
13. Record and proceedings be sent back to the concerned Court forthwith.
(A. S. SUPEHIA, J) MAHESH BHATI/110 Page 8 of 8 Downloaded on : Mon Sep 05 20:56:11 IST 2022