Gujarat High Court
Bharatbhai Manubhai Patel vs Dashrathbhai Gandabhai Prajapati on 26 September, 2022
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/SCA/18158/2021 ORDER DATED: 26/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18158 of 2021
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BHARATBHAI MANUBHAI PATEL
Versus
DASHRATHBHAI GANDABHAI PRAJAPATI
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Appearance:
MR PINAKIN M RAVAL(2495) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,3.1,3.2,3.3,4,5,6,7
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 26/09/2022
ORAL ORDER
[1.0] This petition is filed under Article 227 of the Constitution of India by the present petitioner - third party to the suit, who prayed for leave to Appeal against the judgment and decree passed by the learned 8th Additional Senior Civil Judge, Gandhinagar in Regular Civil Suit No.256 of 2013, claiming that based on the agreement to sell he was in possession of the suit property, and therefore, he is interested as third party, and therefore, he should have been granted leave to Appeal against the said judgment and decree, which came to be rejected vide impugned order dated 08.09.2021 by the learned Principal District Judge, Gandhinagar in Civil Miscellaneous Application No.7 of 2018.
[2.0] Heard Mr. Pinakin M. Raval, learned advocate for the petitioner. He tendered draft amendment dated Page 1 of 5 Downloaded on : Tue Sep 27 21:34:48 IST 2022 C/SCA/18158/2021 ORDER DATED: 26/09/2022
12.09.2022 whereby he has annexed the plaint of Regular Civil Suit No.160 of 2013 and the plaint of Special Civil Suit No.216 of 2022 filed against the original plaintiffs of Regular Civil Suit No.160 of 2013 for a declaration and specific performance of agreement and permanent injunction. The said draft amendment is granted. Learned advocate for the petitioner to carryout the same forthwith.
[3.0] Mr. Pinakin M. Raval, learned advocate for the petitioner - third party, submitted that since he is in possession of the suit, he was necessary party to have been joined by the original plaintiffs of the suit, and therefore, once suit is determined, having come to know he has a right to seek leave of the Court to challenge the judgment and decree passed by the Court in the suit.
[3.1] He has further submitted that based on a notarized agreement to sell, he was put to possession of the suit property, and therefore, the judgment and decree passed by the concerned Court is affecting him, and therefore, he has a right to prefer an Appeal against the said judgment and decree. He has further submitted that the suit should have been dismissed for non joinder of the party, and therefore, he has a right to prefer Appeal seeking leave of the Court and it should have been granted by the Court, and therefore, he has submitted that this petition be admitted and allowed.
[4.0] Having heard learned advocate for the petitioner - third party, it is clear that his interest in the suit property, as claimed by him, is based on an agreement to sell with Page 2 of 5 Downloaded on : Tue Sep 27 21:34:48 IST 2022 C/SCA/18158/2021 ORDER DATED: 26/09/2022 possession of the suit property. On a specific query to the learned advocate for the petitioner - third party, who seeks leave to Appeal against the judgment and decree, about the date of execution of the said agreement to sell, which is on a stamp paper of Rs.20/-, it is submitted that it is dated 18.07.1994. However, in the writing executed, there is no date affixed by any of the parties to the document. Again, it is not notarized before any notary public, as claimed in the submission. Not only that, the date 18.07.1994 is the date when the stamp paper is said to have been issued and it is not the date of the execution of the agreement to sell but possibility cannot be ruled out that it is a created document subsequent to the judgment and decree, which is challenged. As such, with the amendment in the Registration Act, may be since 2001 all documents in respect of immovable property more than Rs.100/-, the document has to be registered. By way of amendment in the Registration Act by the State of Gujarat, there is insertion of section 17(1)(aa) of the Registration Act, 1908 (hereinafter referred to as 'the Act'), which reads as under:
"(aa) instruments which purport or operate to effect any contract for transfer of any immovable property"
Simultaneously, there is insertion of sub-section (1A) in place of original sub-section (1A) of section 17 of 'the Act' with effect from 18.12.1981, which reads as under:
"(1 A) The provisions of section 23 shall apply to an Page 3 of 5 Downloaded on : Tue Sep 27 21:34:48 IST 2022 C/SCA/18158/2021 ORDER DATED: 26/09/2022 instrument referred to in clause (aa) of sub-section (1) and executed before the commencement of the Registration (Gujarat Amendment) Act, 1982 as if in that section for the words "from the date of its execution" the words, figures and letters "from the 1st March, 1982" has been substituted."
Section 23 of 'the Act' prescribes time limit for presentation of such documents within four months of its execution. Even if it is presumed that the said document is executed on 18.07.1994, it appears that it has never been presented for registration within four months of its execution. Thus, it is clear that the said document is of no worth as it is not admissible in evidence in view of Section 49 of 'the Act'.
[4.1] At the same time, the petitioner - third party, who seeks leave to Appeal against the judgment and decree has entered the witness box on behalf of the original defendant, which clearly reflects that he is knowing and with full responsibility he entered the witness box in respect of the suit property. He did not think it fit to be joined as party defendant in the suit as his rights are being affected. Over and above that, in respect of the very same property, which was involved in the suit, which is decreed by the Court, against which Appeal is preferred and when he preferred leave to Appeal against that decree, which came to be rejected, he has already filed separate substantive suit based on the very same agreement to sell, which is sought to be pressed into service for a specific performance of agreement to sell, declaration and injunction against the original plaintiffs of the suit where Page 4 of 5 Downloaded on : Tue Sep 27 21:34:48 IST 2022 C/SCA/18158/2021 ORDER DATED: 26/09/2022 from he seeks leave to Appeal against the judgment and decree filed by the original plaintiffs therein.
[4.2] While dealing with the said application, the learned Judge has kept in mind these aspects, and therefore, it is not a case where judgment and decree affects him strictly and even if it affects him, it was known to him when the suit was filed and he entered into witness box on behalf of the original defendants in the suit. He cannot wait till final disposal of the suit and then complain that the decree affects him and he is an interested party to seek leave to Appeal against the said judgment and decree.
[5.0] In view of the aforesaid, I see no reason to entertain this petition filed under Article 227 of the Constitution of India when the learned Judge while rejecting the leave to Appeal by way of impugned order to prefer Appeal against the original judgment and decree has taken into consideration all the aspects, and therefore, the present petition is hereby rejected.
(UMESH A. TRIVEDI, J.) siji Page 5 of 5 Downloaded on : Tue Sep 27 21:34:48 IST 2022