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Machhi Gangaben W/O Nanabhai Motibhai vs Sardarbhai Dahanabhai Pataliya on 23 June, 2023

Author: Ilesh J. Vora

Bench: Ilesh J. Vora

                                                                                      NEUTRAL CITATION




     C/SCA/277/2011                                   ORDER DATED: 23/06/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 277 of 2011

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      MACHHI GANGABEN W/O NANABHAI MOTIBHAI & 1 other(s)
                          Versus
         SARDARBHAI DAHANABHAI PATALIYA & 6 other(s)
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Appearance:
MR MEHUL S SHAH(772) for the Petitioner(s) No. 1,2
MR ASIT B JOSHI(2567) for the Respondent(s) No. 1,2,3,4,5
MR PM DAVE(263) for the Respondent(s) No. 1,2,3,4,5
RULE SERVED for the Respondent(s) No. 6,7
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                              Date : 23/06/2023

                                 ORAL ORDER

1. This petition under Article 227 of the Constitution of India, assails the legality and correctness of the order dated 14.12.2010, passed below Exh. 177 in Regular Civil Suit No. 42 of 2005, by which, the prayer for framing additional issue as proposed by the petitioners herein was rejected by the learned Principal Civil Judge, Santrampur, Dist.: Panchmahal (Lunawala).

2. This court has heard learned counsel Mr. Henil Shah appearing for and on behalf of the petitioners - original defendants of the suit and Mr. P.M. Dave, learned counsel appearing for and on behalf of respondents - original plaintiffs.

NEUTRAL CITATION C/SCA/277/2011 ORDER DATED: 23/06/2023 undefined

3. Facts and circumstances giving rise to file present petition are that, the respondents no.1 to 5 - original plaintiffs have filed a suit for declaration and injunction with respect to land in question. The suit lands by executing registered sale deed were sold off to the respondents. The revenue authority had cancelled the mutation entry as the transaction was hit by provision of Bombay Prevention of Fragmentation and Consolidation Holding Act, 1947 and said order was confirmed by the Deputy Collector as well as the Special Secretary, Revenue (Appeal). The Court below framed the issues at Exh. 64. The issue No.2 was specifically framed that whether the defendant nos. 3 and 4 prove that the sale transactions is hit by provisions of Bombay Prevention of Fragmentation and Consolidation Holding Act, 1947 and is voidable? During the proceedings, the said issue no. 2 was deleted by the Court vide its order dated 19.07.2003 below Exh. 72 and thereafter, the petitioners approached the competent authority i.e. Deputy Collector, Lunawala to declare the sale transactions invalid and after hearing the parties, the authority, vide its order dated 27.08.2009, came to the conclusion that the sale transaction is invalid, as it has been hit by the provisions of the Fragmentation Act. In these circumstances, the petitioners moved an Page 2 of 7 Downloaded on : Sat Sep 16 20:32:47 IST 2023 NEUTRAL CITATION C/SCA/277/2011 ORDER DATED: 23/06/2023 undefined application Exh. 170 to frame additional issue to the effect that, whether defendants prove that the Revenue Authority has declared the sale transaction invalid?. The Court below after hearing the parties, vide its order dated 14.12.2010, rejected the prayer of framing of additional issue, holding that, the contents of order passed by the authority vide Exh. 170 would not fall under the definition of 'contents of documents' or 'pleadings', therefore, the Court below does not find any substance in the application and accordingly, Exh. 177 filed by the petitioners was rejected on 14.12.2010.

4. Mr. Henil Shah, learned counsel for the petitioners submitted that, the court below while rejecting the application for framing additional issue, committed an error, which is apparent on the face of the proceedings, as the findings recorded by the court below that, the revenue authority at Exh. 170 would not fall under the definition of 'document' and/or 'pleading' are against the statutory provision of the Civil Procedure Code. Referring to Rule 3(c) of Order 14, Mr. Shah, has submitted that, the Court may frame the issues from the contents of the documents produced by either party. If the court below would have gone through the Rule 3 (c) of Order 14, then, he would never come to a such conclusion. The order Page 3 of 7 Downloaded on : Sat Sep 16 20:32:47 IST 2023 NEUTRAL CITATION C/SCA/277/2011 ORDER DATED: 23/06/2023 undefined passed by the Revenue Authority produced before the trail Court at Exh. 170, would clearly established that authority concerned after examining the legal provision held that the sale transactions are invalid, as it has been hit by the provisions of Fragmentation Act.

5. In the aforesaid contention, learned counsel Mr. Shah submitted that the court below has committed an error which is apparent on the face of the record, which goes to the root of the matter, based on clear ignorance of the statutory provisions, does warrant interference by this Court under its supervisory jurisdiction and therefore, he prays that, the impugned order may be set aside and the application for framing additional issue be allowed.

6. On the other hand, Mr. P.M. Dave, learned advocate for the respondents vehemently opposed the contentions raised by the petitioners and contended that the proposed issue and earlier issue No.2, which was deleted are same and therefore, now party cannot be permitted to add the same issue. He further submitted that, the learned court below has rightly exercised its jurisdiction and has not committed any error while rejecting the application. Thus, no any special circumstances exists to interfere with the impugned order and therefore, when finding of facts Page 4 of 7 Downloaded on : Sat Sep 16 20:32:47 IST 2023 NEUTRAL CITATION C/SCA/277/2011 ORDER DATED: 23/06/2023 undefined recorded by the court below are not found to be perverse or erroneous, there is no reason or ground for interference by this Court under its supervisory jurisdiction.

7. Mr. Dave, learned advocate, reiterating the contents of the affidavit-in-reply, has submitted that the petitioners had on earlier occasion filed an application for amendment of written statement and thereafter, another application submitted before the trial Court to refer the matter to the competent authority under the provisions of the Fragmentation Act. The application under Order 7 Rule 11 filed by the petitioners was also dismissed. In these circumstances, it is evident that, the only intention of the petitioners by filing such kind of application is to protract the suit proceedings.

8. In view of the aforesaid contentions, learned counsel Mr. Dave has prayed to dismiss the petition with costs.

9. Having heard the learned counsel for the respective parties and upon perusal of the impugned order as well as material placed on record, it appears that, pursuant to the application moved by the petitioners, the revenue authority has decided that the sale transactions are invalid as there is a violation of the provisions of the Fragmentation Act. So as avoid the Page 5 of 7 Downloaded on : Sat Sep 16 20:32:47 IST 2023 NEUTRAL CITATION C/SCA/277/2011 ORDER DATED: 23/06/2023 undefined multiplicity of proceedings, the event subsequent to the filing of the suit, could have been considered by the court below. This Court finds substance in the arguments advanced by Mr. Henil Shah that the court below has ignored the statutory provision of Rule 3(c) of Order 14 of the Code. Rule 3(c), makes it clear that the court may frame the issues from the contents of the documents produced by either parties. The findings recorded by the revenue authority while passing the order at Exh. 170 can be termed the contents of the document. Based on the findings recorded by the revenue authority, the petitioners have filed an application Exh. 177 for framing the additional issue. Thus, this court is of the considered view that, the impugned order is being passed in utter disregard to the provisions of the Code and same is not sustainable in law.

10. The contention with regard to similarity of the issues having no substance, as the deleted issue no.2 and the proposed issue are distinct and cannot be said to be similar in nature.

11. For the foregoing reasons, the petition is allowed. The impugned order dated 14.12.2010 passed below Exh.

application Exh. 177 is allowed. The Court below shall Page 6 of 7 Downloaded on : Sat Sep 16 20:32:47 IST 2023 NEUTRAL CITATION C/SCA/277/2011 ORDER DATED: 23/06/2023 undefined frame the additional issue as proposed by the petitioners and decide the suit on its own merits. The observations made hereinabove is tentative in nature and confine to decide the issue of framing the additional issue. Rule is made absolute to aforesaid extent.

(ILESH J. VORA,J) P.S. JOSHI/11/7 Page 7 of 7 Downloaded on : Sat Sep 16 20:32:47 IST 2023