Gujarat High Court
Nareshbhai Hathising Shah & 8 vs Kalubha Rahubhai Vaghela & 22 on 18 April, 2016
Author: Anant S. Dave
Bench: Anant S. Dave, A.S. Supehia
C/CA/7990/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR ORDERS) NO. 7990 of 2015
In FIRST APPEAL NO. 1996 of 2008
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NARESHBHAI HATHISING SHAH & 8....Applicant(s)
Versus
KALUBHA RAHUBHAI VAGHELA & 22....Respondent(s)
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Appearance:
MS VIDHI J BHATT, ADVOCATE for the Applicant(s) No. 1 - 9
MR DAIFRAZ HAVEWALLA, ADVOCATE for the Respondent(s) No. 6
MR DHAVAL D VYAS, ADVOCATE for the Respondent(s) No. 3 - 5
UNSERVED-REFUSED (R) for the Respondent(s) No. 12 - 13 , 22
MR HARNISH V DARJI, ADVOCATE for the Respondent(s) No. 7 - 10
MR IH SYED, ADVOCATE for the Respondent(s) No. 16
MR MAULIN G PANDYA, ADVOCATE for the Respondent(s) No. 2 , 11
MR TATTVAM K PATEL, ADVOCATE for the Respondent(s) No. 14 - 15
MS SRUSHTI A THULA, ADVOCATE for the Respondent(s) No. 13
MS TRUSHA K PATEL, ADVOCATE for the Respondent(s) No. 17 - 19
MS VARSHA BRAHMBHATT, ADVOCATE for the Respondent(s) No. 23
RULE SERVED BY DS for the Respondent(s) No. 1 , 14 - 21 , 23
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 18/04/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. In this Civil Application original applicants/appellants in First Appeal No. 1996 of 2008 have prayed as under:
"16(A) Your Lordships may be pleased to quash and set aside the registered sale deed dated 24.5.2010 (Annexure-C) executed by Page 1 of 11 HC-NIC Page 1 of 11 Created On Fri Apr 22 00:05:13 IST 2016 C/CA/7990/2015 ORDER opponent No.6 qua Power of Attorney holder of opponent No.16 in favour of opponents No.1 to 5 for sale of land bearing block No.537 admeasuring about 3,64,900 sq. mtrs., (B) Your Lordships may be pleased to quash and set aside the registered sale deed dated 11.12.2012 (Annexure-D) executed by opponent No.11 qua Power of Attorney holder of opponent No.16 in favour of opponents No.7 to 10, respectively for sale of land bearing revenue survey No.380 admeasuring about 5,80,000 sq.mtrs.;
(C) Your Lordships may be pleased to declare that the registered sale deed dated 24.5.2010 (Annexure-C) executed by opponent No.6 qua Power of Attorney holder of opponent No.16 in favour of opponents No.1 to 5 for sale of land bearing block no.537 admeasuring about 3,64,800 sq.mtrs as void as the same is in the teeth of High Court's stay order dated 17.4.2008 passed in Civil Application No.4816 of 2008 in First Appeal No.1996 of 2008, which came to be confirmed by way of order dated 6.10.2010 passed in Civil Application No.4816 of 2008 in First Appeal No.1996 of 2008;
(D) Your Lordships may be pleased to Page 2 of 11 HC-NIC Page 2 of 11 Created On Fri Apr 22 00:05:13 IST 2016 C/CA/7990/2015 ORDER declare that the registered sale deeds dated 11.12.2012 (Annexure-D) executed by opponent No.11 qua Power of Attorney holder of opponent No.16 in favour of opponents No.7 to 10, respectively for sale of land bearing revenue survey No.380 admeasuring about 5,80,000 sq. mtrs is void as the same is in the teeth of High Court's stay order dated 6.10.2010 passed in Civil Application No.4816 of 2008 in First Appeal No.1996 of 2008;
(E) Your Lordships may be pleased to initiate proceedings of civil contempt under the Contempt of Courts Act, 1971 against opponents No.1 to 11 and 16 for committing a breach of the High Court's oral orders dated 17.4.2008 and 6.10.2010 passed in Civil Application No.4816 of 2008 in First Appeal No.1996 of 2008;
(F) Pending admission and final hearing of the present Civil Application, Your Lordships may be pleased to stay the operation and implementation of the registered sale deed dated 24.5.2010 (Annexure-C);
(G) Pending admission and final hearing of the present Civil Application, Your Lordships may be pleased to stay the operation and implementation of the registered sale deed dated 11.12.2012 (Anneuxre D);"Page 3 of 11
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2. While arguing the case, learned advocate for the applicants has empathetically submitted that during operation of interim injunction granted in terms of order dated 17.8.2008 passed in Civil Application No.4816 of 2008 in para 6 (A) and (B) of the Civil application four sale deeds dated 11.12.2012 came to be executed qua survey No.380 paikee and opponent No.16 is a seller while opponent No.11 being power of attorney and purchased by opponent Nos. 7, 8, 9 and 10 for the respective sale deeds have committed breach of injunction order and therefore after hearing learned advocates for the parties, on 7.4.2016 following order was passed.
"1. Heard learned advocates appearing for all the parties.
2. Primafacie, having gone through the record of the case, at this stage, it emerges that there is a blatant defiance and disregard shown to the order dated 17.4.2008 passed in Civil Application No.4816 of 2008 passed by this Court while issuing Rule in pending First Appeal No.1996 of 2008. All four sale deeds dated 11.12.2012 came to be executed qua survey No.380 paikee and opponent No.16 is a seller while opponent No.11 is Power of Attorney holder in all the above sale deeds and purchasers are opponent Nos.7, 8, 9 and 10 for the respective sale deeds.Page 4 of 11
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3. Earlier, by CAV Judgment dated 14.3.2014 in Civil Application (For Orders) No.1094 of 2013 in First Appeal No.1996 of 2008, the Division Bench of this Court concluded about the nature of transactions namely; executing sale deed and disposing the subject land in breach of the interim order, as above, and finally cancelled the sale deed dated 22.11.2012 which was the subject matter of the Civil Application and imposed exemplary cost of Rs.1 lac to be deposited by opponent No.11 who is opponent No.16 herein and even held him guilty for the contempt of Court's order. However, time to surrender was granted to opponent No.11 therein upto 15.4.2014. Against which, the aggrieved person approached the Apex Court and findings of the fact about the disregard and breach to the order of injunction were not disturbed. However, considering the facts that 100% loss of vision in right eye and 30% loss of vision in left eye, judgment and order qua imposing sentence of 3 months of imprisonment was set aside by accepting unconditional apology.
3.1 In the present proceedings, though Page 5 of 11 HC-NIC Page 5 of 11 Created On Fri Apr 22 00:05:13 IST 2016 C/CA/7990/2015 ORDER contended by learned counsel for opponent No.16 that he is also duped by his Power of Attorney holder and remedies are undertaken for filing Civil Suit for declaring the sale deeds in question as null and void. At the same time, learned counsel for the Power of Attorney disputes the above contention and submitted that Power of Attorney was given to opponent No.11 by opponent No.16.
4. Under the above circumstances, we direct opponent Nos.7, 8, 9, 10 viz; purchasers and opponent No.16 - seller and opponent No.11 - Power of Attorney to remain present before this Court on 12.4.2016, failing which, appropriate orders in accordance with law may be passed."
3. On 12.4.2016 apropos to the order dated 7.4.2016 opponents remained present and expressed their willingness that they have no objection if all such sale deeds dated 11.12.2012 are cancelled and accordingly, today affidavits are filed by Opponent Nos.11 to 16 which are ordered to be taken on record and reproduced herein below:
"I Jayantkumar L. Parmar, Hindu, Adult, Residing at Holi Chakla, Sanand, Ahmedabad, Page 6 of 11 HC-NIC Page 6 of 11 Created On Fri Apr 22 00:05:13 IST 2016 C/CA/7990/2015 ORDER respondent No.11 do hereby solemnly affirm and state on oath as under:
I state that I have been impleaded as respondent No.11 in the aforesaid Civil Application. I state that I am the power of attorney holder of the Respondent No.16 herein and as a power of attorney holder I have executed sale deeds mentioned herein below:-
Sr. Block Area in Sale deed Sale deed in
No No./Survey Square dated favour of
. No. Meters respondent No.
1 380 Paiki 26158 11/12/12 Pradhyumansinh
Natvarsinh
Vaghela
(respondent No.7
herein)
2 380 Paiki 25926 11/12/12 Vanrajsinh
Dilipsinh Vaghela
(respondent No.9
herein)
3 380 Paiki 26158 11/12/12 Dilipsinh
Natvarsinh
Vaghela
(Respondent No.9
herein)
4 380 Paiki 26158 11/12/12 Divyrajsinh
Pradhyumansinh
Vaghela
(respondent
NO.10 herein)
I say that I am giving my consent for the cancellation of all above mentioned registered Page 7 of 11 HC-NIC Page 7 of 11 Created On Fri Apr 22 00:05:13 IST 2016 C/CA/7990/2015 ORDER sale deeds dated 11.12.2012 executed in the favour of opponents No.7 to 10 and I have no objection if this Hon'ble Court may be pleased to quash and set aside the registered sale deeds dated 11.12.2012 executed in the favour of opponents No.7 to 10.
I reiterate that I tender my unconditional and sincere apology before this Hon'ble Court and I request that no proceedings under the Contempt of Courts Act, 1971 may be initiated against me."
"I, Jayshivsinhji Rudradattsinhji, residing at Darbargadh, Taluka Sanand, Ahmedabad do hereby take oath and state on solemn affirmation as under:
1. Pursuant to order dated 12.04.2016 passed by the Division Bench of this Hon'ble Court (Coram: Hon'ble Mr. Justice Anant S. Dave & Hon'ble Mr. Justice A.S. Supehia), present affidavit is filed by deponent in compliance of said order.
2. Apropos subject sale deeds dated 11.12.2012 are concerned, it is specifically stated by present deponent that he has no objection if said sale deeds are Page 8 of 11 HC-NIC Page 8 of 11 Created On Fri Apr 22 00:05:13 IST 2016 C/CA/7990/2015 ORDER cancelled/annulled. In fact, from the very beginning, it is the specific say of present deponent that those sale deeds are required to be annulled as those sale deeds are fraud committed by opponent No.11 in connivance with purchasers. As stated in affidavit in reply filed by present deponent, he has filed Special Civil Application NO.459/2014 challenging those registered sale deeds. Considering said affidavit, especially, para 6 thereof, original applicant filed further affidavit sworn on 16.10.2015 not pressing contempt proceedings against present deponent.
3. It is again stated by present deponent that subject sale deeds dated 11.12.2012 are required to be cancelled/annulled."
4. Earlier similar breach of the order of injunction dated 17.4.2008 of Civil Application No.4816 of 2008 in First Appeal No. 1996 of 2008 was noticed and upon filing Civil Application No.1094 of 2013 by CAV Judgement dated 14.3.2013, the Division Bench of this Court while allowing the Civil Application declared sale deed dated 22.11.2012 executed came to be cancelled and even exemplary cost quantified to the tune of Rs.1 lakh to be deposited by opponent No.11 therein with the registry of the Court was imposed. Even opponent No.11 therein was held guilty of the Contempt of Courts Act for deliberate and willful Page 9 of 11 HC-NIC Page 9 of 11 Created On Fri Apr 22 00:05:13 IST 2016 C/CA/7990/2015 ORDER disobedience of the interim order as above and imposed sentenced of three months imprisonment in addition of fine of Rs.2,000/- to be paid accordingly. That aggrieved person approached the Apex Court by filing Civil Appeal No. 4876 of 2014, which finally came to be disposed of, keeping in mind disability of the appellant who was suffering from 100% loss of vision in right eye and 30% vision in left eye by accepting the unconditional apology without disturbing rest of the order.
5. In the facts and circumstances of the present case prayer clause 16(A) and © is not pressed by leanred advocate for the applicant, we find clear breach and disregard to the order dated 16.4.2008, by which, opponents of Civil Application No. 4816 of 2008 in First Appeal No.1996 of 2008 were restrained from transferring, alienating and assigning or in any manner dealing with various parcel of the subject land in question but in peculiar facts and circumstances and what is recorded in the earlier orders dated 7.4.2016 and 12.4.2016 passed in this proceeding, we refrain from proceeding under Contempt of Courts Act and accept the affidavits filed with unconditional apology from concerned opponents and quash and set aside four sale deeds dated 11.12.2012 and to be treated as cancelled, null and void. The above order is passed subject to the outcome of the First Appeal No.1996 of 2008.Page 10 of 11
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6. Accordingly, prayer in terms of para 16 (A) and (D) is allowed. Rule is made absolute to the aforesaid extent.
(ANANT S.DAVE, J.) (A. S. SUPEHIA, J.) SMITA Page 11 of 11 HC-NIC Page 11 of 11 Created On Fri Apr 22 00:05:13 IST 2016