Gujarat High Court
Ghanshyambhai Laljibhai Pandya vs Narmadaben Wd/O Melabhai Jalambhai on 18 June, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/8676/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8676 of 2019
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GHANSHYAMBHAI LALJIBHAI PANDYA
Versus
NARMADABEN WD/O MELABHAI JALAMBHAI
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Appearance:
MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1
SHASHVATA U SHUKLA(8069) for the Petitioner(s) No. 1
MR SHALIN MEHTA, SENIOR ADVOCATE with MR DHAVAL D VYAS(3225)
for the Respondent(s) No. 6
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,5
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 3,4
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 18/06/2019
ORAL ORDER
1. Present petition under Article 227 of the Constitution of India is filed for the purpose of seeking following reliefs:-
"(A) YOUR LORDSHIPS may be pleased to pass an order or quashing and setting aside the order dated 23.1.2019 passed by the learned 15th Additional Senior Civil Judge, Vadodara, below Exh.52 in Special Civil Suit No.598 of 2007, insofar as the learned Trial Court has refused to mark as exhibits and give exhibit numbers to the documents produced at Mark 50/1 and 50/7 i.e. the agreement to sell dated 30.6.1992 and the possession receipt dated 30.6.1992 executed by the Respondent Nos.1 to 5 in favour of the petitioner and be further pleased to direct the learned Trial Court to mark as exhibits and admit in evidence the documents produced at Mark 50/1 and 50/7 i.e. the agreement to sell dated30.6.1992 and the possession receipt dated 30.6.1992 executed by the Respondent Nos.1 to 5 in favour of the petitioner (B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the further proceedings of Special Civil Suit No.598 of 2007 pending before the Learned 15th Additional Senior Civil Judge, Vadodara.
(C) ............."Page 1 of 7 Downloaded on : Wed Jul 03 07:06:45 IST 2019 C/SCA/8676/2019 ORDER
2. The case of the petitioner is that the petitioner is the original plaintiff who instituted Special Civil Suit No.598 of 2007 for seeking specific performance of agreement to sell dated 30.6.1992 executed by the respondent Nos.1 to 5 in favour of the petitioner and declaration to the extent that the consent terms dated 4.8.1993 arrived at between the respondents in Regular Civil Suit No.1209 of 2002 to be declared as non est, illegal and not binding to the petitioner and also sought for a permanent injunction to protect the possession of the petitioner. It has further been asserted in the petition that the respondent Nos.1 to 5 are original owners of the land bearing Revenue Survey No.162 Paiki, 163, 164/A and 164/B respectively and the respondent Nos.1 to 5 had entered into an agreement to sell with the petitioner. A substantial sale consideration is taken from the petitioner and the possession of the land in question has been handed over to the petitioner, which has been recorded and deduced in the agreement to sell itself. So in short, the possession has been handed over and the respondent Nos.1 to 5 have also executed a possession receipt in favour of the petitioner. Subsequently, after some lapse of period, the respondent Nos.1 to 5 had obtained a permission for conversion of the land into non-agricultural use and also obtained a title clearance certificate and then executed a sale document. For a period of 15 years, the petitioner was put in possession but then, some unknown persons at the behest of the respondents had threatened of dire consequences and to dispossess the petitioner by claiming that the respondent No.6 herein was the owner of the land in question and upon inquiry, it has been discovered that in a clandestine manner, just with a view to defeat the right of the petitioner, a sale deed has also been executed in favour of the respondent No.6 on 20.11.2002 fraudulently. As a result of this, on 31.12.2007, the petitioner was constrained to file the suit, i.e. Special Civil Suit No.598 of 2007.Page 2 of 7 Downloaded on : Wed Jul 03 07:06:45 IST 2019 C/SCA/8676/2019 ORDER
3. The respondents appeared and filed written statement and this transaction has been culminated further in filing of First Information Report (FIR) being No.I-147 of 2008 and another counter FIR against the petitioner, being No.103 of 2014. The petitioner therefore filed a petition for seeking quashment of the FIR by filing Special Criminal Application No.2707 of 2014, in which an order is passed not to take any coercive step. Subsequently, during the course of adjudication of the said proceedings, while leading evidence, the petitioner - original plaintiff produced the documents in origin, including original copy of the agreement to sell dated 30.6.1992 and possession receipt executed by the respondent Nos.1 to 5 in favour of the petitioner. All such documents were produced along with the list at Exh.50 with an application for production of documents. The petitioner also submitted his examination-in-chief in the form of an affidavit at Exh.51. Subsequently, the petitioner on 20.11.2018, filed an application Exh.52 to give exhibit numbers to the documents which are produced vide aforesaid list Exh.50.
Learned Trial Judge vide order dated 23.1.2019 has passed an order at Exh.52 whereby the request is refused to give exhibit numbers to the documents which are produced at Marks 50/1 and 50/7, i.e. the main the documents which are the basis of the suit, i.e. agreement to sell dated 30.6.1992 and possession receipt dated 30.6.1992. It is this order dated 23.1.2019 which is substantially made the subject matter of invoking the extraordinary jurisdiction of this Court.
4. A Notice was issued, vide order dated 12.6.2019, and subsequently, the respondents have appeared and contested the petition.
5. Learned advocate Mr. P.P. Majmudar appearing on behalf of the petitioner has vehemently contended that the documents which are the basis of the suit have not been given exhibit numbers which are seriously prejudicing the right of the petitioner to prove. It has further been submitted that the reasons which are assigned by the Page 3 of 7 Downloaded on : Wed Jul 03 07:06:45 IST 2019 C/SCA/8676/2019 ORDER Trial Court below are also laconic and on the contrary, this is basically a non-speaking order. Except narration of the stand, there is hardly any reason which has been assigned to deal with the contentions which have been raised before learned Judge. The findings which have been arrived at are also not just and proper and this exercise is reflecting a clear non-application of mind. Mr. Majmudar submitted that if these documents are not permissible to be led as evidence, entire suit would become redundant and the objections which have been raised are not sufficient enough not to allow learned Judge to exhibit the documents. On the contrary, looking to the principle of fair chance of leading evidence and the principle of fair play, the documents ought to have been exhibited. It has therefore, been contended that this is not an order which is sustainable in the eye of law. Accordingly, a request is made to grant the relief as prayed for in the petition.
6. To meet with the stand taken by learned advocate for the petitioner, learned senior advocate Mr. Shalin Mehta with learned advocate Mr. Dhaval D. Vyas appearing on behalf of the contesting respondent has submitted that if the documents, which are compulsorily required to be registered and their evidentiary value is bleak, then such documents cannot create a right in favour of the petitioner. It has further been submitted that there is a clear amendment which took place in Section 17 of the Registration Act, which requires the document to be registered, especially when the said document creates right and part with possession. Even by virtue of Section 34 of the Bombay Stamp Act also, an unregistered and inadequate stamped document cannot be admissible and for that purpose, he relied upon a decision delivered by the Apex Court in the case of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra reported in (2009)2 SCC 532 and has requested that it was rightly not exhibited. It has further been submitted that in a situation like this, what procedure will have to be adopted is a step Page 4 of 7 Downloaded on : Wed Jul 03 07:06:45 IST 2019 C/SCA/8676/2019 ORDER which has been propounded in a decision reported in the case of SMS Tea Estates Private Limited Vs. Chandmari Tea Company Private Limited reported in (2011)14 SCC 66 and as such, no error can be found to have been committed by the Court below which calls for any interference. It has been submitted that if the document, which is otherwise compulsorily required to be registered, if not registered, then the petitioner should thank himself and cannot seek exhibition of the document as a matter of right and by raising such stand, learned advocate has requested the Court not to entertain the petition. However, during the course of such submission process, learned advocate for the petitioner has requested the Court that all these issues are not being dealt with by the Court below and even if the judgment at length has been relied upon, no discussion has been reflected in the order. There is no reason assigned to any of the contentions which have been raised, which requires remand for fresh consideration. To this submission in broad, learned advocate representing the contesting respondent has no much resistance but has requested that under the guise of this, no further delay should take place. As a result of this, it was broadly suggested that some time schedule for reconsideration is to be fixed.
7. Accordingly, the Court having considered the aforesaid request, finds it just and proper to remand the matter for reconsideration looking to the controversy which has been involved. It is a settled position of law that if the specific contentions, which have been raised, are not dealt with, the Court may remand the proceedings for fresh consideration. Hence, the following observations and directions would meet the ends of justice while disposing of the petition:-
(1) The impugned order dated 23.1.2019 is quashed and set aside with a consequential direction that the petitioner shall approach learned Judge with a request Page 5 of 7 Downloaded on : Wed Jul 03 07:06:45 IST 2019 C/SCA/8676/2019 ORDER to decide afresh Exh.52, which has been submitted for seeking the documents to be exhibited. Upon receipt of such application, learned Judge shall reconsider the same after giving adequate opportunity to the defendants and the parties to the proceedings and shall decide afresh by assigning reasons.
(2) In the process of reconsideration, learned Judge shall permit both the parties to raise all permissible contentions, including Section 17 of the Registration Act with amendment as well as Section 34 of the Bombay Stamp Act, and also shall consider the decisions which are cited by the respective sides and after dealing with the same, by assigning cogent reasons, a fresh decision be taken.
(3) Since the Court has remanded the proceedings for fresh consideration, has not expressed any opinion on merit with regard to any of the contentions raised by the respective sides and it is independently left it open for learned Judge to consider and decide afresh in accordance with law, but of-course without being influenced by previous observations.
(4) Learned Judge shall take decision as early as possible and preferably within a period of THREE MONTHS from the date of receipt of the writ of this Court.
(5) Both the parties are directed to cooperate with the learned Judge and shall not ask for any unnecessary adjournment(s) so as to facilitate learned Judge to take decision upon reconsideration within the aforesaid time schedule.Page 6 of 7 Downloaded on : Wed Jul 03 07:06:45 IST 2019 C/SCA/8676/2019 ORDER
8. With these observations and directions, the present petition is disposed of.
9. Since this order is passed upon broad consensus, the Court has not assigned independent reasons and shall not be treated as precedent. No order as to costs.
(A.J. SHASTRI, J) OMKAR Page 7 of 7 Downloaded on : Wed Jul 03 07:06:45 IST 2019