Gujarat High Court
Nakulan S Paniker vs Kantilal Ambalal Patel Since Deceased ... on 18 November, 2024
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/FA/2238/2012 IA JUDGMENT DATED: 18/11/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2024
In R/FIRST APPEAL NO. 2238 of 2012
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2024
In R/FIRST APPEAL NO. 2238 of 2012
With
R/FIRST APPEAL NO. 2238 of 2012
With
CIVIL APPLICATION (DIRECTION) NO. 1 of 2024
In R/FIRST APPEAL NO. 2239 of 2012
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2024
In R/FIRST APPEAL NO. 2239 of 2012
With
R/FIRST APPEAL NO. 2239 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
KANTILAL AMBALAL PATEL SINCE DECEASED THROUGH HIS LEGAL
HEIRS & ORS.
Versus
NAKULAN S PANIKER & ORS.
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Appearance in Civil Application no.1 of 2024 in First Appeal no.2238 of 2024:
MR SHALIN N MEHTA AND MR DHAVAL D VYAS, SENIOR ADVOCATES
for the PETITIONER(s) WITH MR DA SANKHESARA(5955) FOR M/S.VYAS
ASSOCIATES(1559) for the APPLICANTS No. 1,1.1,1.2,1.3
MR MIHIR H JOSHI AND MS TRUSHA K PATEL, SENIOR ADVOCATES
WITH MR TATTVAM K PATEL(5455) for the RESPONDENT(s) No. 1
Appearance in Civil Application no.2 of 2024 in First Appeal no.2238 of 2024:
MR MEHUL S SHAH, SENIOR ADVOCATE ADITYA A GUPTA(7875) AND
MS HELLY PARIKH for the PETITIONER(s) No. 1
M/S.VYAS ASSOCIATES(1559) for the RESPONDENT(s) No. 5.3
MR MIHIR H JOSHI AND MS TRUSHA K PATEL, SENIOR ADVOCATES
WITH MR TATTVAM K PATEL(5455) for the RESPONDENT(s) No. 1
Appearance in Civil Application no.1 of 2024 in First Appeal no.2239 of 2024:
MR SHALIN N MEHTA AND MR DHAVAL D VYAS, SENIOR ADVOCATES
WITH MR DA SANKHESARA (5955) FOR M/S.VYAS ASSOCIATES(1559)
for the APPLICANT(s) No. 1
MR MIHIR H JOSHI AND MS TRUSHA K PATEL, SENIOR ADVOCATES
WITH MR TATTVAM K PATEL(5455) for the RESPONDENT(s) No. 1
Appearance in Civil Application no.2 of 2024 in First Appeal no.2239 of 2024:
MR MEHUL S SHAH, SENIOR ADVOCATE ADITYA A GUPTA(7875) AND
MS HELLY PARIKH for the APPLICANT(s) No. 1
MR SHALIN N MEHTA AND MR DHAVAL D VYAS, SENIOR ADVOCATES
WITH MR DA SANKHESARA (5955) FOR M/S.VYAS ASSOCIATES(1559)
for the RESPONDENT(s) No. 5.2,5.3
MR MIHIR H JOSHI AND MS TRUSHA K PATEL, SENIOR ADVOCATES
WITH MR TATTVAM K PATEL(5455) for the RESPONDENT(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 18/11/2024
COMMON CAV IA JUDGMENT
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)
By the captioned Civil Applications, the applicants, i.e. the
heirs of the original plaintiff are seeking permission to withdraw the
Special Civil Suit no.186 of 2010 (hereinafter referred to as 'the suit
in question'). The suit in question, came to be allowed vide
judgment and decree dated 04.07.2012 (hereinafter referred to as
'the impugned judgment') and hence, the captioned First Appeals.
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As the prayer in both the captioned Civil Applications are common,
same are heard together and being disposed of by this common
judgment.
2. The suit in question was filed by the plaintiff - Kantilal Patel
through his power of attorney - Dolly Patel challenging and seeking
declaration with respect to the agreements dated 29.04.2010,
02.08.2010, 06.08.2010 and other agreements, they being voidable
at the instance of the plaintiff. The agreements were with respect to
land bearing survey no.250 admeasuring 168 acres and 39 gunthas
situated at village Raiya, taluka & district Rajkot (hereinafter
referred to as 'land in question'). As aforesaid, the suit in question
came to be decreed by the judgment and decree dated 04.07.2012
and being aggrieved, Nakulan Paniker and Siddhi Infrastructure &
Developers (defendant nos.1 and 2 respectively) have filed the
captioned appeals respectively.
3. For the sake of convenience, the parties herein are referred to
as per their status in the suit in question. Further, vide order dated
23.01.2024, this Court, allowed the applicants of Civil Application
(for Joining Party) no.2 of 2013 (old no.5913 of 2013) in First Appeal
no.2238 of 2012 (Heirs of Harishchandrasinhji Jadeja vs. Nakulan S.
Paniker) and Civil Application (for Joining Party) no.1 of 2013 (old
no.5914 of 2013) in First Appeal no.2239 of 2012 (Heirs of
Harishchandrasinhji Jadeja vs. Siddhi Infrastructure and Developers)
and Civil Application (for Joining Party) no.1 of 2021 in First Appeal
no.2238 of 2012 and Civil Application (for Joining Party) no.1 of 2021
in First Appeal no.2239 of 2012 (Kalpesh Atmaram Patel vs. Nakulan
Paniker and Siddhi Infrastructure respectively) to contest the
captioned Civil Applications. Since the applicants are not joined
formally, hereinafter, they are being referred to by name, i.e.
Harishchandrasinhji Jadeja and Kalpesh Patel respectively. The order
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dated 23.01.2024 read thus:
"1. Challenge in these first appeals is to the judgement and
decree dated 04.07.2012 passed in Special Civil Suit No. 186 of
2010 by the learned Additional Senior Civil Judge, Rajkot. The
original plaintiffs in the suit by the judgement and decree
succeeded inasmuch as it was declared by the trial court that the
plaintiffs are entitled to cancel the registered agreements dated
02.08.2010 with respect to the suit properties. Reading of the
operative portion of the decree would indicate that the defendants
who are the present appellants were ordered to be restrained by
way of permanent injunction from either selling, transferring or
alienating the suit land by misusing the agreement dated
02.08.2010 as well as the Power of Attorney etc. The defendants
in the suit therefore have filed the present appeals.
2. When the appeals were taken up for hearing, the plaintiffs have
prayed that they be permitted to withdraw the suit. The
appellants through their learned Senior Advocates have agreed to
the fact that the suits be permitted to be withdrawn and there be
no need to entertain the appeals on merits.
3. A Civil Application for impleadment has been filed by one
Amarsinh Manishchandrasinh Jadeja. A leave to appeal has also
been registered. Mr. Dhaval Dave, learned Senior Advocate
appearing for Mr. Hemang Shah, learned advocate has appeared
for the applicants in the joining application has contested the
withdrawal of the suit by the plaintiffs and consequentially the
stand of the appellants that the plaintiffs be permitted to withdraw
the suit on the ground that Civil Suit No. 53 of 2002 is pending
adjudication with regard to possession of the same lands in
question. Parties have therefore vehemently contested the
withdrawal of the suit over a period of time. In light of this when
suggested, the original plaintiffs' Counsels have agreed to file an
application setting out reasons as to why they want to withdraw
the suit and that the appeals therefore need not be heard. To such
applications being filed, it shall be open for the parties including
the impending civil applicant who wishes to be joined as a party in
the first appeals to file objections. It goes without saying that the
contesting applicant who wishes to be joined as party to the
appeal is permitted to contest the withdrawal application subject
to the rights and contentions of the respective parties that he is
not required to be joined as a party.
4. Mr. Shalin Mehta, learned Senior Counsel would submit that
such an application is not necessary in light of the pursis which is
part of the paper book at page 874. The application for permission
to withdraw shall be decided on its own merits considering the
objections of the respective parties.
5. Stand over to 07.02.2024."
Hence, the learned counsel appearing for the respective
parties were heard accordingly.
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4. Mr Shalin N. Mehta, learned Senior Counsel appearing with Mr
Dipen Sankhesara, learned advocate for the applicant in Civil
Application no.2 of 2024 in First Appeal no.2238 of 2012 and Civil
Application no.2 of 2024 in First Appeal no.2239 of 2012 submitted
that irrevocable power of attorney dated 01.04.1993 was executed
by Harishchandrasinhji Jadeja in favour of Dhananjay Patel. On the
same day, agreement to sell was executed by Harishchandrasinhji
Jadeja in favour of plaintiff, i.e. Kantilal Patel, (since now deceased,
hereinafter referred to as the 'plaintiff' or 'Kantilal Patel' as the
context warrants) the father and grandfather of the applicants
respectively, wherein, the fact of execution of irrevocable power of
attorney dated 01.04.1993, was also recorded. Immediately on
07.04.1993, another agreement to sell was executed by
Harishchandrasinji Jadeja himself. On 30.11.1994, another
irrevocable power of attorney was executed by Harischandrasinhji
Jadeja in favour of one Rajesh B. Shah, consultant of the
predecessor conferring wide powers of executing agreement, sale
deed, handing over the possession etc., followed by third agreement
dated 13.10.2000 between Harishchandrasinji Jadeja and Kantilal
Patel regarding the sale of land in question, wherein it is admitted
that Kantilal Patel, was in possession. Condition was also stipulated
as regards obtaining a decree from the Court of competent
jurisdiction on the basis of power of attorney in case of any dispute
from the family members in execution of sale deed in his favour.
Since the sale deed was not executed that Civil Suit no.350 of 2000
was filed by Kantilal Patel against Harishchandrasinhji Jadeja
through his power of attorney holder Dhananjay Patel, which came
to be decreed on 07.02.2001.
4.1 It is next submitted that almost after 8 months of passing of
the decree, Harishchandrasinhji Jadeja gave a notice on 20.10.2001
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for cancellation of irrevocable power of attorney, followed by filing
of Special Civil Suit no.53 of 2002 challenging the judgment and
decree dated 07.02.2001, but not the agreement to sell, dated
01.04.1993 or 07.04.1993 or 13.10.2000. Public notice regarding
cancellation of the power of attorney, was issued; however,
agreement to sell in favour of Kantilal Patel, has neither been denied
nor fraud has been alleged. Even during the pendency of the Special
Civil Suit no.53 of 2002, Harishchandrasinhji Jadeja has accepted the
consideration from the Kantilal Patel. Though Special Civil Suit no.53
of 2002 has been filed alleging that Kantilal Patel and Dhananjay
Patel have committed an offence under the provisions of the Indian
Penal Code by tampering the power of attorney, till the year 2006,
no criminal complaint was filed. After three years from the death of
Harishchandrasinhji Jadeja, in the year 2009, his son, has filed a
criminal complaint and as per the investigation, Kantilal Patel and
Dhananjay Patel have been shown as witnesses and not as an
accused.
4.2 It is submitted that another chapter, commenced in the year
2010 when, plaintiff - Kantilal Patel executed an agreement dated
29.04.2013 in favor of defendant no.1 - Nakulan Paniker assigning
all the rights under the decree dated 07.02.2001 in Civil Suit no. 350
of 2000, for consideration of Rs.76 crore. It is thereafter, that a
partnership deed was executed between Kantilal Patel and
defendant no.4 - Vallabhji Nagada whereby, they became the
partners of Sai Developers to the extent of their respective shares
and Dollyben Patel, one of the applicants, signing as a witness,
followed was another contract recognizing the decretal rights in
favour of defendant no.2 - Siddhi Infrastructure. It is submitted that
on 31.07.2010, possession was handed over in favour of Siddhi
Infrastructure by executing the possession receipt which is signed
by the plaintiff - Kantilal Patel and Dollyben Patel as witnesses. On
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31.07.2010, plaintiff - Kantilal Patel executed a registered power of
attorney in favor of defendant no.4 - Arvind Jani and defendant no.3
- Vallabhji Nagada to perform the duties and execute contract in
favor of defendant no.1 - Nakulan Paniker. The right to execute
registered sale deed or banakhat, were also given to the agent.
4.3 It is submitted that on 02.08.2010 registered agreement was
executed between plaintiff - Kantilal Patel and defendant no.2 -
Siddhi Infrastructure through its partner defendant no.1 - Nakulan
Paniker whereby, the rights of Kantilal under the decree and
banakhat were assigned to defendant no.2 - Siddhi Infrastructure
and the agreement dated 29.04.2010, was to be treated as a part of
the said agreement. Another agreement was executed by defendant
no.3 - Arvindbhai Jani as a power of attorney holder of Kantilal Patel
in favour of defendant no.2 - Siddhi Infrastructure and as per the
said agreement, as a portion of land was encroached upon,
proportionate consideration was to be deducted from the total
consideration and was required to be paid to plaintiff - Kantilal Patel.
Even seven cheques worth Rs.66 crore were handed over to
defendant no.3 - Arvindbhai Jani.
4.4 It is further submitted that surprisingly, Civil Suit no.277 of
2010, was filed by Yashpalsinh, i.e. the grandson of
Harishchandrasinhji Jadeja against Siddhi Infrastructure, Nakulan
Paniker and the Collector seeking declaration that the agreement
including agreement dated 02.08.2010 registered before the Sub-
Registrar, is not binding to Harishchandrasinhji Jadeja. It is
submitted that in the very same suit, panchkyas was carried out to
establish the possession and the order was passed which, was
challenged in a writ petition. Since this Court directed drawing of the
panchnama, only with a view to seeing that the possession of Siddhi
Infrastructure is not established, withdrawal purshis was filed.
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Besides, application was filed to not permit the panchnama of the
subject land and appointment of the Court Commissioner. However,
when second panchkyas was caused to be done, it came out that
the possession of the suit land, belongs to Siddhi Infrastructure and
only with a view to avoiding any adverse orders that the suit was
withdrawn on 28.02.2011.
4.5 It is further submitted that even in the Special Civil Suit
no.276 of 2010 filed by Yashpalsinh, Kantilal Patel categorically
disclosed the factum of the suit in question. Also, objection purshis
dated 11.10.2010, was filed by the applicant no.1.1 - Bhanuben in
Special Civil Suit no.53 of 2002, reflecting the aspect of suit in
question which, clearly shows that the legal heirs of
Harishchandrasinhji Jadeja were aware about the suit in question.
4.6 It is submitted that the proceedings, have travelled up to the
Supreme Court wherein, the applicant Dollyben Patel has declared
that there is no dispute if the balance amount of Rs. 66 crore, is
paid. Even in the reply filed on 30.01.2012, Dollyben Patel, has
taken a stand that if Nakulan Paniker and Siddhi Infrastructure are
ready to surrender the cheques, no other dispute shall remain.
4.7 Reliance is placed on the judgment of the Apex Court in the
case of Anil Kumar Singh vs. Vijay Pal Singh & Ors. reported in
(2018) 12 SCC 584. It is held and observed that when an application
is filed under Order XXIII Rule 1 of the Code of Civil Procedure, 1908
(hereinafter referred to as 'the Code'), seeking permission to
withdraw the suit, it will always be open to the plaintiff to withdraw
the suit and the defendant will have no right to raise any objection
except to ask for payment of cost as provided in sub-rule (4) of
Order XXIII. Mere withdrawal of the suit without asking for anything
more can, therefore, be always permitted. It is therefore, submitted
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that the only option available to the defendant, is to request for cost
as per sub-rule (4) of Order XXIII. Further reliance is placed on the
judgment of the Apex Court in the case of Sneh Gupta vs. Devi
Sarup & Ors. reported in (2009) 6 SCC 194. It is submitted that the
Apex Court has laid down the clear test pointing out that one needs
to examine that no right has been vested in any other party and it
cannot destroy anybody's vested right. It is submitted that as far as
the objectors are concerned, there is no vesting.
4.8 Reliance is placed on the judgment in the case of Dharma
Naika vs. Rama Naika & Anr. reported in (2008) 14 SCC 517. It is
submitted that the Apex Court, while considering the provisions of
the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition
of Transfer of Certain Lands) Act, 1978, has held and observed that
an agreement for sale under the Transfer of Property Act is not a
transfer and the right, title or interest in the land does not pass until
the sale deed is executed and registered. It is further held and
observed that under the Transfer of Property Act, being a general
law, an 'agreement for sale' is not the same as 'sale' and in the case
of an agreement for sale, the title of the property agreed to be sold
still remains with the vendor, but in the case of 'sale', title of the
property is vested with the vendee. Reliance is also placed on the
judgment in the case of State of Odisha & Anr. vs. Anup Kumar
Senapati & Anr. reported in (2019) 19 SCC 626. The Apex Court has
discussed the meaning of "vesting" and it is pointed out that as per
the meaning in the Black's Law Dictionary "Vest" means to confer
ownership (of property) upon a person. It also means to invest (a
person) with the full title to property; to give (a person) an
immediate, fixed right of present or future enjoyment; to put (a
person) into possession of land by the ceremony of investiture.
4.9 It is further submitted that as many as 8 objections can be
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discern out from the reply filed to the application; firstly that the
plaintiff has no unfettered right to withdraw the suit at an appellate
stage, where the objective is mala fide. It is submitted that it is not
a test evolved by the Supreme Court. The test evolved, is that
unless there is a destruction of the vested right of defendant, suit
should not be permitted to be withdrawn at the appellate stage.
Another objection, is that the decree of a specific performance
passed in Special Civil Suit no.350 of 2000, is fraudulent and
collusive. The said decree, is already under challenge and therefore,
everything would be subject to the adjudication in the suit being
Special Civil Suit no.53 of 2002. Another objection raised, is that the
fraudulent agreement has been executed in favour of Nakulan
Paniker and Siddhi Infrastructure and since the documents have
been declared as null and void, withdrawal is an attempt to bring life
to the said documents. In fact, this is something, which is in favour
of the applicants and if they wants to give up, there is no bar. The
fourth objection, is that the objective of the application is to get
some sort of order which can be interpreted or used as a sanction of
the Hon'ble Court to implement fraudulent and illegal agreement. It
is submission that the plaintiff - Kantilal Patel, wants to withdraw the
suit unconditionally and this Hon'ble Court, would be only permitting
unconditional withdrawal and is not putting any seal to the illegality.
If the suit goes, so the first appeal would go. Fifth objection is that
the interim order is based on misleading and false submissions. It is
submitted that it is highly improper to raise such an objection for,
the matter was argued responsibly and it is only after hearing, that
the order was passed. Matter travelled up to the Hon'ble Supreme
Court and the order passed by the High Court has been confirmed.
When this Court and Hon'ble Supreme Court, has confirmed the
order, such averments, would be misconceived. It is further
submitted that the sixth objection, is that one of the issues framed
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in the Special Civil Suit no.53 of 2002, is with respect to who is in
possession of the land. It is submitted that when the said issue, is
already at large, there would not be any prejudice caused and will
be decided in the suit. Another objection which can be discern out is
that the objective of withdrawing the suit is to defeat the Special
Civil Suit no.53 of 2002; however, the said averment is as vague as
it can be. No reasons are assigned in support thereof.
4.10 It is submitted that the permission be granted to withdraw the
suit in question inasmuch as, the Hon'ble Supreme Court has laid
down a crystal clear principle that right cannot be allowed to be
destroyed while permitting the withdrawal of the suit at the
appellate stage. In the case on hand the right is accrued, in favour
of Kantilal Patel only and he is desirous of giving up his right, for
which there is no bar and there is no vesting taken place in favour
of other parties. Also, the finality of litigation is a desired goal and
therefore, if party to first appeal has compromised, and wants to
withdraw, it should be permitted unless the parties are acting
against the public interest. It is therefore, urged that plaintiff be
allowed to withdraw the suit.
5. Mr Mehul S. Shah, learned Senior Counsel with Mr Aditya
Gupta with Ms Helly Parikh, learned advocates for the applicant
nos.1.1, 1.3, 1.4 (original respondent nos.1.1, 1.3 and 1.4) in Civil
Application no.1 of 2024 in First Appeal no.2238 of 2012 and Civil
Application no.1 of 2024 in First Appeal no.2239 of 2012 submitted
that in the first suit, judgment and decree has been passed on
07.02.2001 which, is a subject matter of challenge in subsequent
Special Civil Suit no.53 of 2002 by Harishchandrasinhji Jadeja and
Kantilal Patel, Dhananjay B. Patel and Siddhi Infrastructure have
been impleaded as a party. Prayer is to set aside the decree as well
as declaration qua possession. It is submitted that first appeals have
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been filed, arising out of the third suit which was against Siddhi
Infrastructure and others for the purpose of setting aside various
agreements, namely, agreement of assignments of right under the
decree etc. Siddhi Infrastructure is claimed to be assignee in the
agreement. The question that arises, pending the present appeal is
that how it is going to affect the Special Civil Suit no.53 of 2002.
5.1 It is submitted that it is only when the decree in Special Civil
Suit no.53 of 2002, is set aside that Harishchandrasinhji Jadeja
would be entitled to get appropriate relief. It is submitted that either
plaintiff - Kantilal Patel or Siddhi Infrastructure would be available
and withdrawal, will not prejudice Harishchandrasinhji Jadeja. It is
submitted that clearly Harishchandrasinhji Jadeja had a knowledge
about the pendency of the suit and was aware that whatever may
be the result, he would not be affected, as the suit was between
assignor and assignee. No efforts were made for being joined as a
party in suit in question. Even after the disclosure, no steps were
taken.
5.2 It is next contended that so far as the objector Kalpesh Patel is
concerned, after passing of the decree; under compulsion the
unregistered agreement to sell dated 04.07.2018 and 12.09.2019,
were executed. The applicant, has buttressed the manner in which
she was coerced and how steps were taken for revocation of the
agreement which, were thereafter revoked on 07.03.2019 and
14.12.2019. Kalpesh Patel has no locus to contest the withdrawal of
the suit for, it is only an unregistered agreement to sell and does
not create any right, title or interest in the property.
5.3 Reliance is placed on the judgment of the Apex Court in the
case of Venigalla Koteswaramma vs. Malampati Suryamba & Ors.
reported in (2021) 4 SCC 246. It has been held and observed that
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person having an agreement for sale in his favour does not get any
right in the property, except the right of obtaining sale deed on that
basis. Therefore, only right available to Kalpesh Patel, was to ask for
specific performance; however, he has not filed any suit for specific
performance, but has filed suit for declaration and permanent
injunction and therefore, Kalpesh Patel has no locus to raise any
objection. Moreover, the agreements are against Section 54 and
executed in contravention of injunction granted in three different
proceedings. In Letters Patent Appeal, this Court, has passed an
order dated 01.03.2011, restraining the respondents not to alienate
any land without the prior permission of the Court. In the past, in
the captioned appeal itself, order dated 18.07.2012 was passed by
the Division Bench. In paragraph 7 of the said order, the Division
Bench has ordered that until the appeals are finally heard, neither
party should create any situation which may alter the status quo
qua their rights in the property. The SLP filed against the said order,
has been dismissed. Therefore, the agreements executed of the
years 2018 and 2018, have to be treated as non-existent.
5.4 In support of such submission, reliance is placed on the
judgment in the case of Surjit Singh & Ors. vs. Harbans Singh & Ors.
reported in (1995) 6 SCC 50. It has been held and observed that if
the alienation and assignment is made in defiance of the restraint
order, the Court has the duty, as also the right, to treat the
alienation/assignment as having not taken place at all for its
purposes. Reliance is also placed on the judgment in the case of
Vidur Impex and Traders Pvt. Ltd. & Ors. vs. Tosh Apartments Pvt.
Ltd. reported in (2012) 8 SCC 384. Broad principles have been laid
down governing the disposal of the application for impleadment and
it has been noted that if the applicant is guilty of contumacious
conduct or is beneficiary of a clandestine transaction or a
transaction is made by the owner of the suit property in violation of
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the restraint order passed by the Court, the Court will be fully
justified in declining the prayer for impleadment. Further reliance is
placed on the judgment in the case of Jehal Tanti & Ors. vs.
Nageshwar Singh (dead) reported in (2013) 14 SCC 689. It has been
held that the consideration or object of an agreement is unlawful
and every agreement executed with such an object or consideration
which is unlawful is void. It is therefore, submitted that the
agreements of the years 2018 and 2019, are barred by Section 23
of the Indian Contract Act, 1872, making it illegal once it is in the
teeth of the injunction.
5.5 It is next submitted that the objection of Kalpesh Patel, can
also not be considered on the ground that the agreements on the
basis of which the rights are claimed, are admittedly unregistered
agreement. Clause (a) of sub-section (1) of Section 17 of the
Registration Act, 1908 (hereinafter referred to as the 'Registration
Act'), applicable to the State of Gujarat, provides for the categories
of the documents to be compulsorily registered. Section 49 provides
for the effect of non-registration, carving two exceptions. Either of
the proviso, would not help Kalpesh Patel. As much as, there is no
suit for specific performance and there is no other transaction
required to be effected. It is further submitted that none of the two
eventualities is available and therefore, Section 49, is a bar for
taking cognizance of an unregistered document. Therefore on all
three grounds, there is no right available to Kalpesh Patel to oppose
the prayer of withdrawal.
5.6 It is submitted that Order XXIII Rule 1 of the Code is a
provision which governs the withdrawal of the suit and clearly
indicates two different aspects. It is submitted that if the plaintiff
wishes to withdraw the suit or claim, Court does not come in the
way and no order of the Court is required, if the party is withdrawing
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simpliciter, i.e. unconditionally. It is only when the party wishes to
withdraw the suit conditionally, reserving a liberty to file a fresh suit,
that the Court would step in. Sub-rule (4) of Rule 23 provides that
when the plaintiff abandons any suit or withdraws from the suit or a
part of claim etc., he may be permitted to do so and the only
restriction is that he shall be liable for costs as the Court may
award. Therefore, the prerogative lies with the plaintiff and
abandonment of the suit is voluntary. In the present case, before
filing the present application, consent withdrawal purshis is filed by
the respondent no.1.4. Even affidavits have been filed by the heirs
of Kantilal Patel, declaring on oath their willingness to
unconditionally withdraw the suit. Therefore, there is clear
declaration on oath for withdrawal of the suit under Order XXIII Rule
1 and therefore, the same, deserves to be allowed.
5.7 In support of such contention, reliance is placed on the
judgment of the Apex Court in the case of Mr Anurag Mittal vs. Mrs.
Shaily Mishra Mittal reported in (2018) 9 SCC 691 wherein it is held
that Order XXIII Rule 1 (1) of the Code gives an absolute right to the
plaintiff to withdraw his suit or abandon any part of his claim. It has
also been pointed out that Order XXIII Rule 1 of the Code, is
applicable to appeals as well and the appellant has the right to
withdraw its appeal unconditionally and if such an application is
made to the Court, it has to grant it. It is therefore, submitted that
as soon as the declaration is made on oath, it is deemed to have
been withdrawn and the defendant cannot object the withdrawal
and they are not even objecting; it is only Harishchandrasinhji Jadeja
and Kalpesh Patel, objecting and who are neither joined nor have
they locus.
5.8 Reliance is also placed on judgment in the case of Shiv Prasad
vs. Durga Prasad & Anr. reported in (1975) 1 SCC 405. It is
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submitted that in the context of Rules 89 and 90 of Order 21 of the
Code, it has been held that every applicant has a right to
unconditionally withdraw his application and his unilateral act is
sufficient. No order of the Court is necessary permitting withdrawal
of the application. Reliance is placed on the judgment in the case of
Patel Dineshbhai Mohanbhai vs. Decd. Naranbhai Ramdas & Ors.
reported in 2005 (1) GLR 116. It is submitted that this Court, in
detail has explained the absolute right of the plaintiff to withdraw
the suit unconditionally and the circumstances under which the
Court can refuse such withdrawal. This Court has held that when the
plaintiff wants to withdraw the suit, the conduct of the plaintiff is not
relevant for permitting him to unconditionally withdraw the suit.
5.9 Reliance is placed on the judgment in the case of the Hulas
Rai Baij Nath v. Firm K.B. Bass & Company reported in AIR 1968 SC
111. It has been held and observed, that there is no provision in the
Code, which requires the Court to refuse the permission to withdraw
the suit, and to compel the plaintiff to proceed with it. Further
reliance is placed on the judgment in the case of Arvindbhai
Babarbhai Bhatiya vs. Anant Babarbhai Bhatiya, reported in 2020
(3) GLR 1712. This Court, has held and observed, that the plaintiff
has a dominant right to withdraw the suit, except in certain
circumstances.
5.10 For the proposition, that even the appeal, can be permitted to
be withdrawn, reliance is placed on the judgment of the Apex Court
in the case of Shaik Hussain & Sons vs. M.G. Kannaiah & Anr.
reported in (1981) 3 SCC 71. Writ petition was filed and in appeal, it
was sought to be withdrawn, which was refused and the Apex Court,
allowed the withdrawal of the writ petition. Reliance is also placed
on the judgment in the case of K. Sivaramaiah vs. Rukmani Ammal
reported in (2004) 1 SCC 471. It is submitted that even the Apex
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Court, has recognized the principle of withdrawal of the suit at
appellate stage. Had there been any bar or restriction, the Apex
Court, ought not to have considered the said aspect.
5.11 Reliance is also placed on the judgment in the case of
Executive Officer, Arthanareswarar Temple vs. R. Sathyamoorthy &
Ors. reported in (1999) 3 SCC 115. It is submitted that, the Apex
Court, has recognized withdrawal of the suit at the appellate stage
except if there is findings in favour of the beneficiaries. In the
present case, the plaintiff is a beneficiary of the findings and now
the plaintiff wants to withdraw the suit. There is nothing in favour of
the defendant which would get nullified if the suit is permitted to be
withdrawn. Reliance is placed on the judgment in the case of
Malluru Mallappa(D) vs. Kuruvathappa & Ors., reported in (2020) 4
SCC 313. It is submitted that it is by now well established that the
appeal is a continuation of the proceedings of the original Court and
for all practical purpose, is to be treated like a suit. Everything is
open and whatever is permissible and applicable to the suit can be
permitted in appeal as well.
5.12 It is submitted that both the suits are pending. In fact, the suit
filed in the year 2002, is pending since last more than 22 years and
normal course, would be to expedite the disposal of the suit;
whereas, in the present case, the objector is adopting a dilatory
tactics. In the suit, application was filed seeking adjournment on the
ground of production of the documents of the Letters Patent Appeal
which was not accepted. Special Civil Application no.5605 of 2024
was filed and this Court, has recorded the dilatory tactics adopted
by the petitioner, i.e. objector and was unsuccessfully challenged
before the Apex Court.
5.13 While summing up, it is submitted that the defendants do not
object and the objectors, that is, Harishchandrasinhji Jadeja and
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Kalpesh Patel, on facts, have no locus. Order XXIII of the Code gives
unfettered right to the plaintiff to withdraw. It is submitted that
therefore, first prayer is to record the intention to withdraw and
declare that it is already withdrawn by operation of law. The
judgment under appeal does not survive. In the alternative, it may
be set aside in light of the withdrawal. Even if it is not treated to be
declared to be withdrawn, the plaintiff is seeking permission which
is required to be granted in the facts of the case and nobody, can
object to the same. It is urged that the applicant, being dominus
litis, be permitted to withdraw the suit more particularly, when there
is no objection by the defendant and no vested right has accrued in
favor of any other parties.
6. Ms Trusha K. Patel, learned Senior Counsel with Mr Tattvam
Patel, learned advocate appearing for the defendant no.2, that is
the original appellant submitted that the ground raised by the
objectors is that withdrawal of the suit, stands on a different footing
then withdrawal of the appeal. It is submitted that for the purpose of
withdrawal of appeal, provisions applicable to the suit, would apply.
Reliance is placed on the judgment in the case of Bijaynanda
Patnaik vs. Satrughna Sahu reported in AIR 1963 SC 1566. It has
been held and observed that the provisions of Order XXIII Rule 1(1)
and (3) also apply in the same manner to withdrawal of appeals. It
has been also held that appellant has the right to withdraw the
appeal unconditionally and if he makes such an application to the
Court, it has to grant it.
6.1 It is submitted that the conduct of the party or the plaintiff, is
immaterial. Moreover, the person who is not the party to a suit or an
appeal, will have no locus to raise any objection. Even the person
who is not a party to the contract which is in dispute, has no stand
to object. In support of such submission, reliance is placed on the
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judgment in the case of Tulebahadur Mahavir Prasad vs. Dineshbhai
Shivlal Patel reported in 2015 (1) GLR 884. It has been held that
withdrawal purshis that may be filed, can be said to be a volition of
the plaintiff's right to withdraw the suit without inviting any further
order from the Court. Such request, if made, is not to be decided
and it would not be open to the Court to refuse to accept the
withdrawal purshis.
6.2 Reliance is also placed on the judgment in the case of Nila
Bauart Engineering Limited vs. Rajasthan Urban Infrastructure
Project Avs Building reported in AIR 2004 Gujarat 221. It is held that
the natural corollary of Order XXIII Rule 1, is to grant withdrawal and
for such grant, formal order of granting permission is not required to
be passed when there is no objection by the defendant. The
withdrawal is complete as soon as the intimation of withdrawal is
expressed before the Court. It is therefore submitted that once the
intention is declared, the suit be permitted to be withdrawn.
7. Mr R.S. Sanjanwala, learned Senior Advocate appearing with
Mr Parthiv B. Shah, learned advocate for one of the objectors, that is
Kalpesh Patel submitted that during the pendency of the suit filed
by the original owner, the appellants have obtained the assignment
of the decretal right. The suit in question was decreed on
04.07.2012 and the documents in favour of Siddhi Infrastructure and
Nakulan S. Paniker, were cancelled, meaning thereby, that the
assignment failed. If the decree is upheld by this Court, then the
appellants will have no right and if the appeals are allowed; the
documents are upheld, then the appellants, would be entitled for
execution of the sale deeds. It was under this circumstance, Kalpesh
Patel entered into an agreement to sell dated 04.07.2018 which was
subsequently revoked on 07.03.2019 and once again, on
12.09.2019, another fresh agreement was executed. Clearly, the
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rights can be discern out from paragraph 4 of that agreement which
includes the entire decision making and taking care of all the
pending litigations. The reference is also made of all the parties
including Siddhi Infrastructure and Nakulan S. Paniker. Besides, it
has also been agreed that after disposal of the disputes and upon
title getting cleared and adjusting the amount, whatever land is
available, 50% of the land, would remain with him and remaining
50% would be retained by the applicant - Dollyben Kantilal Patel. As
per the condition no.8, the right got vested in the objector upon
execution of the agreement to sell. It also determines the mutual
rights of the parties. Followed, was irrevocable Power of Attorney on
12.09.2019; however, on 14.12.2019, the said document was
revoked by issuing the notice. It is after the issuance of the notice,
that the purshis is filed before this Court seeking withdrawal.
7.1 It is submitted that the suit is filed by the objector praying for
various reliefs including the declaration that agreement to sell and
power of attorney are in force, legal and valid and once bi-parte,
rights are created by executing the documents, Dollyben Patel, the
applicant cannot act against the interest of the objector. It is
submitted that the documents in favour of the objector are result of
the two decrees and for rendering the right to be meaningful, both
the decrees need to be survived and only if two decrees survive, the
right of the objector would survive. Therefore, participation in all the
proceedings concerning the decree is inevitable. If the appellants
succeed and the decrees were to be set aside, the remedy available
to objector is to challenge both the documents. What is attempted
before this Court, is fraud on the objector and any order of this
Court, will further their fraudulent intent which, may not be
permitted.
7.2 Reliance is placed on the judgment in the case of Hakim
Enayat Ullah vs. Khalil Ullah Khan reported in AIR 1938 Allahabad
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432 wherein, it has been held that a decree for specific performance
only declares the right of the decree holder to have a transfer of the
property covered by the decree executed in his favour. The decree
by itself does not transfer title. It has been further held that in order
to get title to the property the decree holder has to proceed in
execution in accordance with the provisions of Order 21 of the Code.
So long the sale deed is not executed in favour of the decree holder
either by the defendant in the suit or by the Court the title to the
property remains vested in the defendant and till the execution of
the sale deed the decree holder has no right to the possession of
the property. It is only the execution of the sale deed that transfers
title to the property.
7.3 It is submitted that the argument that the documents,
requires registration is also misplaced inasmuch as, a decree for
specific performance creates a right for execution of the sale deed
and not in the property itself. Therefore, neither the decree nor any
document of assignment requires registration. Such rights are
assignable and assignee is entitled to seek impleadment based on
such assignment. As a holder of such right, objector is entitled to
object any attempt on the part of the assignor to compromise which
will directly affect his assignment and thus, the substratum of the
suit cannot be allowed to be nullified.
7.4 While adverting to the submissions, that the deed of
assignment has to be registered, reference is made to the
provisions of Section 17 of the Registration Act and in particular,
clause (b) of sub-section (1) of Section 17 which, inter alia, provides
creation, assignment of a right by instrument. Further reference is
made to clause (e) of sub-section (1) of Section 17 of the
Registration Act. It is submitted that one is to examine, as to
whether the documents create or extinguish the right. Until now,
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sale deed is not executed and the property continues of the
defendant. Further, sub-section (2) states that clauses (b) and (c) of
sub-section (1) shall not apply to any document other than
document specified in sub-section (1A) not itself creating any right,
title or interest, but merely creating a right to obtain another
document which when executed, created etc. such right, title or
interest. Clause (vi) of sub-section (2) of Section 17 of the
Registration Act is with respect to any decree of order of a Court
except a decree or order expressed to be made on a compromise
and comprising immovable property other than that which is the
subject-matter of the suit or proceedings. It is submitted that two
provisions cast obligation and two creates exception. Therefore,
registration, is not required.
7.5 Reliance is placed on the judgment in the case of Amol &
Others vs. Deorao reported in 2011 (2) ALL MR 22 :
MANU/MH/0011/2011. In paragraph 34, it has been held that if the
decree itself does not create or purport to create any right, title or
interest in or charge on the immovable property, then the question
of conveying such right, title or interest in or charge on the
immovable property by executing the deed of assignment, does not
arise and hence, clause (b) of sub-section (1) of Section 17 is also
not attracted.
7.6 It is further submitted that what applies to the Kalpesh Patel,
is Order XXII Rule 10 of the Code which refers to the interest which
has devolved upon the objector and entitles him to join and
continue the proceedings. It is submitted that Order XXII Rule 10
state that in a case of assignment, creation of devolution of any
interest during the pendency of a suit, the suit may by leave of the
Court, be continued by or against the person to or upon whom such
interest has devolved. In the present case, the interest has devolved
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upon the objector by virtue of the agreement executed by the
applicant - Dollyben Patel.
7.7 It is submitted that it is the case of the applicants that various
agreements executed in favour of the appellants have been agreed
to be implemented and therefore, the applicants do not wish to
pursue the suit and in this behalf the applicant and other heirs have
filed purshis. It is submitted that prayer is to permit withdrawal of
the suit coupled with further prayer to set aside the judgment and
decree. In fact, the provision of Order XXIII Rule 1 of the Code would
not come into play, if the suit is already decreed; it would be
covered under Order XXIII Rule 3 of the Code and the requirement,
as envisaged, is the satisfaction of the Court. The compromise has
to be lawful and should be in writing and signed by the parties. That
simple withdrawal of the suit would not be possible and setting
aside of the judgment and decree is inevitable. If there is no suit,
everything ends with the suit and nothing would be left. For simple
withdrawal, Order XXIII Rule 3 of the Code would not be attracted
and for attracting Order XXIII 23 Rule 1, the judgment and decree
has to be set aside first, where upon the suit can be disposed of.
Application neither attracts sub-rule (1) of Order XXIII nor Rule 3. At
the best, this would fall under Section 151.
7.8 Reliance is placed on the judgment in the case of Amit Kumar
Shaw & Another vs. Farida Khatoon & Another reported in (2005) 11
SCC 403. The Apex Court, has held that Court has to satisfy for
exercising its discretion in granting leave for continuing the suit by
or against the person on whom the interest has devolved by
assignment of devolution. Reliance is also placed on the judgment in
the case of Bai Rabiabai & Others vs. Official Assignee of Bombay
reported in 2018 SCC Online Bombay 2726, wherein, third party
gave an application claiming interest in the suit and High Court,
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while discussing the provisions of Order XXII Rule 10, has observed
that the assignment, creation or devolution of the interest concerns
an interest in the subject matter of the suit and if such interest is
created during the pendency of suit, the party in whose favour the
interest is created, can apply to the Court for joinder. Reliance is
also placed on the judgment in the case of Mrs. Saradambal Ammal
vs. E. R. Kandaswami Goundar And Ors. reported in AIR 1949
Madras 23. It has been held and observed that a person in whom
the right devolved, would be entitled to continue the suit. It has also
been opined that if there is a assignment of the right during the
pendency of a suit for specific performance, the person in whom
such right has been passed should be able to continue the suit for,
the words "any interest" include any transferable right to sue.
7.9 It is submitted that the documents have already created right
in his favour and he has acted to his prejudice by making a
substantial payment to Dollyben Patel. Having acquired the interest
which flows from two decrees, the first objector gets entitled to be
impleaded to defend the decree. If the decree goes, he loses
everything and nothing would survive. It is submitted that unilateral
revocation of documents has no efficacy in the eyes of law and the
objector is obliged to challenge and that is how, he has challenged
the same.
7.10 So far as the right to withdraw the suit at the appellate stage
is concerned, reliance is placed on the judgment in the case of R.
Rathinavel Chettiar & Another vs. V. Sivaraman & Others reported in
(1999) 4 SCC 89. It is submitted that the Apex Court, has held and
observed that where a decree is challenged in the appeal, it would
not be open to the plaintiff at that stage to withdraw the suit so as
to destroy the decree. The vested rights in the parties under the
decree cannot be taken away by withdrawal of the suit unless very
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strong reasons are shown that the withdrawal would not affect or
prejudice anybody's right. It is submitted that the moment it is
shown that the right has intervened that itself should be a reason to
dismiss the application. It is submitted that the applicant has to
demonstrate that the withdrawal will not affect the vested right.
Though it is argued that there is no right in the property, such
contention is misplaced, considering the fact that the vested right is
also a right flowing from the decree. Vested right can be any right
and devolution of interest can also be a vested right.
7.11 It is submitted that the judgment in the case of Sneh Gupta
vs. Devi Sarup & Ors. (supra) has considered the provisions of Order
XXIII Rule 3 of Code. It also noted that if a compromise is to be held
to be binding, it must be signed either by the parties or by their
counsel or both, failing which, Order XXIII Rule 3 would not be
applicable. It has also been held that a suit cannot be withdrawn by
a party after it acquires a privilege. It has further been pointed out
that right to withdraw the suit in the suitor would be unqualified, if
no right has been vested in any other party.
7.12 Reliance is also placed on the judgment in the case of Avenue
Supermarts Private Limited vs. Nischint Bhalla & Others reported in
(2016) 15 SCC 411.
7.13 It is submitted that in the case of Naranbhai Jadavbhai
Lalakiya vs. Mohanbhai Ambabhai Patel & Others passed in Civil
Application (for Joining Party) no.8169 of 2015 in Second Appeal
no.183 of 2014, the power of attorney therein contained similar
conditions as in the case on hand. It has been held that if a power of
attorney is irrevocable and is coupled with consideration, it cannot
be revoked. This Court, was of the opinion that it would not be open
to the plaintiff to seek withdrawal of the appeal on the ground that
the disputes have been resolved between the plaintiff and the
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defendant. It is submitted that in the second round of litigation in
the very same case, this Court vide detailed judgment in civil
application (for direction) no.9272 of 2015 in Second Appeal no.183
of 2014, considered as to whether the request for withdrawal of the
suit can be entertained. It has been held that application seeking
withdrawal of the suit at the stage of appeal after it has been
adjudicated upon by the trial court, cannot be permitted.
7.14 While adverting to the aspect of execution of agreement in
breach of the injunction, it is submitted that assignment is by the
applicant - Dollyben Patel and if at all there is any breach, it is
committed by her and now, she cannot be permitted to contend that
the documents are executed in breach of the injunction. The
documents stand and everyone is aware about it. Challenge can be
by way of substantive suit and/or contempt; however, the limitation
has been lost. Today, therefore, there is no challenge to the
documents. Documents executed in breach of injunction are not
void ab initio. So long as the documents stand, the objector has the
right to object to the withdrawal and therefore, the application
deserves to be rejected.
8. Mr S.N. Soparkar and Mr Dhaval C. Dave, learned Senior
Counsel with Mr Salil Thakore, learned advocate for
Harishchandrasinhji Jadeja has taken this Court to the list of events,
inter alia, referring to the power of attorney (page 28) and
submitted that subsequently, another power of attorney was
executed (page 32) with a fundamental difference which was hand
written addition in clause (2) without any signature. It is submitted
that agreement was executed by the Harishchandrasinhji Jadeja in
favour of plaintiff - Kantilal Patel wherein, the reference is made of
his possession and it, was to be handed over only upon the
construction of the units. The agreement was executed in the year
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1993 and till 2000, for almost 7 years, no steps were taken. Suit has
been filed by plaintiff - Kantilal Patel on 19.12.2000 against the
power of attorney, who is residing at Vadodara and not against
Harishchandrasinhji Jadeja who was very much available in the
Rajkot. Caveat was filed by the power of attorney on 19.12.2000
itself. It is thereafter, the collusive decree is choreographed and
obtained.
8.1 It is submitted that once the suit is decreed, the plaintiff does
not have absolute right to withdraw the suit. If withdrawal results
into prejudice, affecting vested or substantive rights of anyone or is
fraudulent in nature, withdrawal should not be permitted. It is
submitted that withdrawal of suit is a rarity and secondly, the Court
would allow withdrawal only after taking into consideration relevant
facts for which strong case has to be made out. Reliance is placed
on the judgment in the case of R. Rathinavel Chettiar & Another vs.
Sivaraman & Others (supra). It is submitted that the case before the
Apex Court, was identical to the case on hand. The Apex Court, has
held and observed that where a decree is challenged in appeal, it
would not be open to the plaintiff, at that stage, to withdraw the suit
so as to destroy that decree. The rights which have been vested in
parties to the suit under the decree, cannot be taken away by
withdrawal of suit, unless very strong reasons are shown that the
withdrawal would not affect or prejudice anybody's vested rights. It
is submitted that the Apex Court has used "anybody's right". In
other words, it can be anyone other than the defendant. It is
submitted that plaintiff - Kantilal Patel filed a suit and the suit, was
decreed and now, if he is allowed to withdraw, the findings against
the assignment, would not survive. Moreover, the assignment would
revive and Harishchandrasinhji Jadeja, will have to fight against
Siddhi Infrastructure. It is submitted that strong reasons have to be
shown; whereas, in the present case, the ground is only receipt of
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money.
8.2 While dealing with the aspect of fraud, reliance is placed on
the judgment in the case of Awaneesh Chandra Jha vs. Anil Prasad
Nanda reported in 2022 SCC OnLine Del 1866. It is submitted that it
is observed that withdrawal from proceedings would of course be
permissible, if the requirements of Order XXIII of the Code are
fulfilled; but, cannot be permitted if it amounts to misuse of law; or
to abuse the process of the Court; or to otherwise playing fraud on
the Court. It is submitted that in the present case, the conduct on
the part of plaintiff - Kantilal Patel and the power of attorney, would
demonstrate that fraud has been committed. All the events took
place on 19.12.2000 viz. Filing of suit, caveat; issuance and service
of notice, both on 20.12.2000 and the power of attorney, was ready
with the written statement affirmed on 21.12.2000. On 22.12.2000,
application is filed, praying for drawing of decree, followed by an
application on 12.01.2001 for taking up the matter on board and the
admission of the defendant on the very same day, followed by
production of Banakhat and original power of attorney, both on
23.01.2001 by plaintiff - Kantilal Patel and Dhananjay Patel
respectively. It is thereafter, on 07.02.2001, that the decree is
passed in favour of plaintiff - Kantilal Patel and against
Harishchandrasinhji Jadeja. It is further submitted that after two
days, i.e. on 09.02.2001, plaintiff - Kantilal Patel and Dhananjay
Patel, seeks permission for withdrawal of the original copy of the
Banakhat and power of attorney and the trial Court, returns the
copy of both the documents and it is left only with the plaint, written
statement and judgment & decree.
8.3 It is further submitted that immediately thereafter,
Harishchandrasinhji Jadeja filed a suit being Special Civil Suit no.53
of 2002 wherein, challenge is to the decree, declaring it ab initio
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void. Prayer, is also seeking declaration that the possession is of
Harishchandrasinhji Jadeja. It is submitted that it was during the
pendency of the suit, plaintiff - Kantilal Patel entered into an
agreement, assigning the decretal right in favor of Siddhi
Infrastructure and another, coupled with formal documents. It is
submitted that reference is made of everything, including the suit
filed by the Harishchandrasinhji Jadeja and the receipt of the
payment of Rs. 9 crore and Rs. 66 crore, to be received in
anticipation of the settlement and thereafter, the plaintiff - Kantilal
Patel filed a suit in question, seeking declaration, that the
agreement dated 06.08.2010 is illegal, mala fide and fraudulent, so
also other documents. The basis of the suit, is fraud and illegality. It
is submitted that this Court, in the proceedings being Letters Patent
Appeal no.2004 of 2009, has passed an order dated 01.03.2011,
restraining the respondents not to alienate the land in question
without the prior permission of the Court. Besides, as per the order
passed below Exh. 5, the trial Court, noted each and every aspect,
namely, suit filed by plaintiff - Kantilal Patel against the power of
attorney. The power of attorney, was also considered and noting
thus, the trial Court, granted stay against the decree dated
07.02.2001 till the disposal of the suit, which has been confirmed up
to the Apex Court and has attained finality. Not only the heirs of
plaintiff - Kantilal Patel, but Siddhi Infrastructure and others are also
party to the suit.
8.4 It is submitted that in the suit, several issues were framed;
all the issues were answered in affirmative except two, where
burden was cast upon the defendant. It is submitted that the
findings which are in favour of Harishchandrasinhji Jadeja, will
disappear if the suit in question is permitted to be withdrawn, he will
have to fight against Siddhi Infrastructure and Nakulan Paniker and
will have to prove everything, creating prejudice to
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Harishchandrasinhji Jadeja. Therefore, withdrawal will certainly
prejudice the vested right of Harishchandrasinhji Jadeja and
therefore, should not be permitted.
8.5 Adverting to the aspect of possession, it is submitted that if
the suit in question is allowed to be withdrawn, there will be
uncertainty as to handing over of possession to whom, for, as per
the order passed by this Court possession is with the Court
Commissioner. As against this, it is the claim of Harishchandrasinhji
Jadeja that he is in possession, which is clear from the documents
available on record and more particularly, the Banakhat dated
07.04.1993 wherein, there is a specific stipulation that till the
execution of the conveyance deed and construction of units is over,
plaintiff - Kantilal Patel is not to get the possession. Plaintiff -
Kantilal Patel, though got the decree, but had no possession in his
favour. Despite which, in the suit filed, possession is claimed,
without stating as to how he has come into possession. Such aspect,
was readily agreed by the power of attorney in its written statement
in paragraph 8, stating that the possession is given for a limited
purpose. Direction is issued that the possession of the plaintiff -
Kantilal Patel, not to be disturbed. In fact, in the suit filed by
Harishchandrasinhji Jadeja in 2002, it is categorically stated that the
possession, is with him and accordingly, has sought declaration.
8.6 It is submitted that in the Banakhat executed on 29.04.2010,
there is no reference of possession. Surprisingly, on 31.07.2010
possession receipt is issued by the plaintiff - Kantilal Patel and
thereafter, within two days, i.e. on 02.08.2010, claims the
possession, followed by filing of suit in question. It is also alleged
that the possession receipt has been procured fraudulently. It is
submitted that the trial Court has framed various issues and in
paragraph 59 of the judgment, it takes a view that the plaintiffs are
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in a lawful possession. It is submitted that the matter, had travelled
before this Court and this Court, had passed a detailed order dated
18.07.2012. Discernibly, both the parties agreed to handover the
possession to the Court Commissioner and also had expressed their
willingness to bear the expenses for preservation of the property;
however, the said arrangement between the parties, would not
affect the right of Harishchandrasinhji Jadeja.
8.7 While adverting to aspect of prejudice, it is submitted that
the Court has given findings that the agreements are null and void.
It is submitted that what is illegal will remain illegal, but the findings
in favour of Harishchandrasinhji Jadeja will go. The admissions,
evidence and other aspects, are in favour of Harishchandrasinhji
Jadeja, those will also go. While concluding, it is submitted that if
Civil Application is allowed and the suit is permitted to be
withdrawn, possession be not handed over to the plaintiff - Kantilal
Patel or Siddhi Infrastructure, till the final disposal of the pending
suit and the heirs of Harishchandrasinhji Jadeja are ready to incur
the expenses towards the Court Commissioner.
9. Mr Shalin N. Mehta, learned Senior Advocate, while dealing
with the judgment in the case of Rathinavel Chettiar & Another vs.
Sivaraman & Others (supra) argued that in the present case, no
right has been vested under a decree in anybody except the plaintiff
- Kantilal Patel and therefore, the principle laid down in the said
judgment helps the applicant rather than the objectors for, by
withdrawing the suit, the plaintiff - Kantilal Patel is not destroying
anybody's right except his and Harishchandrasinhji Jadeja is yet to
get the decree in his favour. The reference of 'anybody' in
paragraph 22, is to mean the defendant for, in the previous
paragraphs, the Apex Court, has considered various judgments and
in all the judgments, reference of vested right is in favour of the
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defendant. It has been held and observed that if any rights are
vested in the defendant, the said vested right, cannot be destroyed
or nullified by withdrawal of the suit. Clearly, it has to be between
the parties to the litigation and not anybody who is not connected to
the suit or proceedings.
9.1 It is submitted that it is argued that withdrawal will violate the
order dated 25.05.2011 passed. It is submitted that in the said
proceedings, Siddhi Infrastructure was not a party to the suit.
Application was filed for being joined which was objected to by
Harishchandrasinhji Jadeja successfully. Being aggrieved, that Siddhi
Infrastructure has approached this Court and it is only vide order
dated 08.07.2013 passed in Special Civil Application no.3417 of
2011, that Siddhi Infrastructure was allowed to be impleaded as a
party respondent.
9.2 It is further submitted that vide decree dated 07.02.2001,
there is direction for execution of the sale deed on payment in
favour of plaintiff - Kantilal Patel and the latter part of the injunction,
is injuncting Harishchandrasinhji Jadeja from dealing with the land in
question and creating third party right. It is submitted that the suit
was pending and before the interim order was passed on
27.05.2011, there were agreements entered into and possession
was handed over to Siddhi Infrastructure and therefore, it was
already in possession. It is submitted that the plaintiff - Kantilal Patel
has given up all his rights in favour of Siddhi Infrastructure and that
there is no restraint order against Siddhi Infrastructure.
9.3 It is also submitted that all throughout Harishchandrasinhji
Jadeja did not file any application for joining Siddhi Infrastructure or
restraining it from not transferring the land in question. It is
submitted that the parties are not directed to maintain status quo
except Harishchandrasinhji Jadeja who cannot create a third party
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right. It is submitted that if the suit is allowed to be withdrawn, the
decree dated 04.07.2011 is wiped out and the effect would be that
all the agreement would stand revived and there is no friction
between the interim relief and the revival of the agreement. It is
submitted that contention that the decree under challenge is
fraudulent, is also misplaced for, the decree dated 07.02.2001 is
being decided by the competent Court.
9.4 It is submitted that it is also sought to be argued that as to
why Harishchandrasinhji Jadeja should be dragged into controversy.
It is submitted that since the year 1993 to 2000, there were two
powers of attorney and two agreements to sell executed. The stand
taken while challenging one of the powers of attorney, was that the
sister is objecting; however, it is not the case of Harishchandrasinhji
Jadeja that the power of attorney is bogus. It is submitted that the
suit was filed and even thereafter, Harishchandrasinhji Jadeja has
received the money and is aware about all the transactions;
however, has not challenged and it is only as recent as in the year
2023, that the leave to appeal has been filed challenging the
judgment & decree dated 04.07.2012.
9.5 It is sought to be argued that Harishchandrasinhji Jadeja is
screaming since 2013 that he is in possession and his right would be
defeated. That in light of the interim order passed by this Court,
possession was handed over to the Court Commissioner and
therefore, the averments made in paragraph 28, needs to be
deprecated and stricture should be passed. It is further submitted
that in fact in the order, the Division Bench has observed that "the
defendant nos.1 and 2, have illegally entered the possession, may
not be allowed to take any undue benefit..." Therefore, in the face of
the said order, Harishchandrasinhji Jadeja could have joined in the
proceedings and sought for a modification; however, no steps have
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been taken. Besides, possession is very much the issue in the suit
filed by Harishchandrasinji Jadeja and pending, if the trial Court
decides and Harishchandrasinhji succeeds, then he will get the
possession where, both the plaintiff - Kantilal Patel and Siddhi
Infrastructure are parties. It is submitted that the plaintiff - Kantilal
Patel, by the agreement, is waiving his right under the decree and
therefore, the suit in question, be permitted to withdrawn.
10. Mr Mehul S. Shah, learned Senior Advocate, submitted that in
absence of any suit filed seeking specific performance, Kalpesh
Patel has no locus, which aspect has remained unanswered. It is
next submitted that it is the specific stand that Dolly Patel being one
of the plaintiffs and legal heir of plaintiff - Kantilal Patel, has
transferred and assigned the right, title and interest of the suit
properties in his favor. Clearly, the agreements have been entered
into for the purpose of clearing the litigation and the land which
would come would be in the share of 50% each to be distributed.
There is not a whisper that it is for assignment of a decretal right. It
is submitted that the issue would be as to whether this agreement
can be looked into while allowing the withdrawal of the suit.
Agreement to sell, is no agreement in the eyes of law for, as per the
provisions of clause (e) of sub-section (1) of Section 17 of the Act of
1908, even the decree is covered, whether vested or contingent
would also be governed by the said provision and requires
compulsory registration. It is submitted that contention is also
raised that the power of attorney was irrevocable. The said power of
attorney, also makes a reference of the agreement dated
12.09.2019 and various authorities are given to Kalpesh Patel,
including the power to sell, to administer etc. the land in question. If
that be so, power of attorney giving authority to alienate, has to be
compulsorily registrable after the year 2016. If the document is not
registered, it cannot be looked into.
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10.1 It is submitted that it is contended that if withdrawal is
permitted, the resultant effect would be that the decree would go
and not survive, thereby affecting the right of Kalpesh Patel. It is
submitted that the said contention, is also not tenable for, the
assignee has stepped into the shoes of the assignor. Even
otherwise, assuming that Kalpesh Patel, has filed a suit for specific
performance, at the most relief which can be granted is execution of
the sale deed and Siddhi Infrastructure would have to sign in the
sale deed executed by Dolly Patel. Reliance is placed on the
judgment in the case of Lala Durga Prasad & Anr. vs. Lala Deep
Chand & Ors., reported in (1953) 2 SCC page 509. The Apex Court,
has held and observed that the proper form of decree is to direct
specific performance of the contract between the vendor and the
plaintiff and direct the subsequent transferee to join in the
conveyance so as to pass on the title which resides in him to the
plaintiff.
10.2 It is further submitted that it is also argued that the applicant-
Dolly Patel could not have arrived at the settlement as it is not in
compliance with Order XXIII Rule 3. Such contention, is also
misplaced for, it is an application filed under Order XXIII sub-rule (1)
of Rule 1 and not under Order XXIII Rule 3. Order XXIII Rule 3, says
about recording of the compromise and decree to follow which is not
an issue in the present case. In the present case, application has
been filed seeking simpliciter and unconditional withdrawal and
none of the parameters of Order XXIII Rule 3, would come into
picture. It is also sought to be argued that Order XXII Rule 10 would
apply and not Order XXIII Rule 1. It is submitted that the said
contention is also misplaced for, Order XXII Rule 10, is a procedure
for assignment etc. and there has to be "any interest". Agreement
to sell, does not create any interest and the only right which can be
inferred, is to go for a specific performance. It is also argued that
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the applicant, has prayed for setting aside of the decree and
permission to withdraw. It would also not help for, the prayer in the
present application, is other way round. It is submitted that when
withdrawal is permitted and takes effect, the consequential thing
would be that the decree would not survive.
11. Mr. Mihir H. Joshi, learned Senior Counsel with Mr Tattvam
Patel and Mr Kurven Desai, learned advocates while dealing
with the aspect of possession of the defendant no.2 Siddhi
Infrastructure, submitted that the Division Bench, in paragraph
6 of the order, has observed that the original defendant nos.1
and 2, who are otherwise in actual possession of the suit
property, have agreed to handover the possession to the Court
receiver. Accordingly, the defendant nos.1 and 2 were directed to
handover the actual and physical possession of the suit property to
the Court receiver. Therefore, the Court found that the possession,
is with defendant nos.1 and 2, i.e. Nakulan Paniker and Siddhi
Infrastructure. Harishchandrasinhji Jadeja and heirs have never
sought modification or clarification of the order passed by this
Court. It is submitted that even as per the panchnama which was
executed pursuant to the order passed by this Court, records taking
over of the actual possession from Siddhi Infrastructure and Nakulan
Paniker and thus, Harischandrasinhji or heirs raising grievance of
possession, is misconceived.
11.1 It is further submitted that the trial Court while allowing the
suit, in its judgment dated 04.07.2012, observed that mere fact that
the defendants are in possession and have availed facility of
telephone, electricity by itself does not suggest that they are in
lawful possession of the suit land. It is submitted that even the
physical possession is not disputed by the trial Court. Even the said
aspect, has been taken note of by the Division Bench by recording
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that the learned Judge has not considered the aspect of actual
possession of the property with the defendant nos.1 and 2. It
submitted that the suit is filed prior to the assignment in the year
2010 and all the transactions are post the filing of the suit and if the
suit is allowed, everything goes.
11.2 So far as the Kalpesh Patel is concerned, he has entered into
an agreement and has purchased ongoing litigation, coupled with
uncertainty and therefore, there cannot be any grievance raised by
him. Even in the proceedings wherein, the objector was a party,
similar prayer for withdrawal of the suit was made and which was,
objected to by Kalpesh Patel wherein, reference of both the
agreement to sell has been considered. Reference is made to the
judgment in the case of Ranjitray D. Joshi thro POA Divyangbhai U.
Jha & Ors. vs. Kantilal Ambalal Patel & Ors. passed in First Appeal
no.1827 of 2021 and allied matters.
12. Mr R.S. Sanjanwala, learned Senior Advocate with Mr Parthiv
B. Shah, learned advocate, while dealing with the judgment of the
Division Bench in case of Ranjitray D. Joshi vs. Kantilal Ambalal Patel
(supra) submitted that at the initial stage, the judgment was not
relied upon considering that hearing of the captioned application
may defer. Also, the matter is at large before the Supreme Court. It
is next submitted that in the proceedings before the Division Bench,
what weighed with the Court was largely the fraud. The land was
purchased by the society and the rights of the members,
intervened. Suit was filed and the Accountant appeared on behalf of
the society and in absence of the members, fraudulently, submitted
a consent decree. Thereby, the rights of the society and the
members were affected.
12.1 It is next submitted that in the case of R. Rathinavel Chettiar
vs. Sivaraman (supra), an attempt was made to deal with the
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judgment suggesting that right which is spoken of has to be vested
right of the defendant and party to the suit. Paragraph 22,
unequivocally, says about "anybody's vested right". It is submitted
that Order XXIII Rule 1, does not permit the Court to set aside the
decree and merely permits the withdrawal. As against this, Order
XXIII Rule 3, allows the Court to pass an order provided there is a
compromise placed in writing. Order XXIII Rule 1 alone is not the
source of power to set aside the judgment and decree. Both
judgment and decree has to be set aside after proper adjudication
of merits or upon consent of the parties, which would attract the
provisions of Order XXIII Rule 6. If the applicant has approached this
Court, seeking setting aside of the decree, there has to be some
provision.
12.2 While referring to the provisions of Section 17 (f) of the
Registration Act, it is submitted that today the donor of power is not
entitled to any immovable property. The donee, therefore, does not
acquire any right in the property or a right to transfer, alienate etc.
of the property. Provisions of the Registration Act are intended to a
situation where the rights are created in the property itself. Section
17(1)(f) is subject to Section 17(2). It is submitted that the
provisions which require compulsory registration under Section
17(1), it does not matter what is the document, whether it is an
MoU, banakhat or power of attorney. To determine whether it
requires registration, one has to see right which is being conveyed.
If there is a right in the property itself, then the provisions of
Registration Act may get attracted, but if there is no right in the
property, then the provisions of Registration Act, would not be
attracted.
13. Mr Mehul S. Shah, learned Senior Advocate in brief rejoinder,
submitted that Order XXIII Rule 3 uses the word "compromise".
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Consent and compromise are two different aspects. In the case of
compromise, the person is compromising on certain terms and
wishes the Court to say that it is a valid comprise; whereas, consent
is, where plaintiff says that he is consenting and he does not wish
to proceed with the matter. Compromise and consent are absolutely
different and hence, the decree would not survive.
14. Heard the learned counsel appearing for the respective
parties. Perused and considered the documents made available on
the record including the paper-book.
15. The captioned proceedings not only involve chequered history
but, numerous litigations with respect to the land in question, so
also various deeds and documents executed between and amongst
the parties. Besides, suits have been filed by the parties, claiming
their respective rights and reliefs. Also, parties are clamouring for
the possession of the land in question. To start with, suit in question
was filed by plaintiff - Kantilal Patel which came to be decreed vide
judgment dated 04.07.2012, and is subject matter of challenge in
the captioned appeals. Stand taken by the applicants is that now
the issue is settled and unconditional withdrawal be permitted.
Defendants are in agreement and naturally so; however, the
objection is by heirs of Harishchandrasinhji Jadeja and Kalpesh Patel.
Stand taken is that withdrawal of the suit in question be not
permitted at the appellate stage as it would prejudice their vested
right. Various peripheral issues have also been raised, inter alia,
fraudulent execution of the agreements. In connection with Civil Suit
no.350 of 2000 by plaintiff - Kantilal Patel; allegation is of obtaining
collusive judgment and decree dated 07.02.2001 and is the subject
matter of Special Civil Suit no.53 of 2002. On the other hand, stand
is taken by Kalpesh Patel that the applicant - Dolly Patel has
pocketed the money in furtherance of the agreements executed in
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the years 2018 and 2019 and it would now be impermissible for her
to back out and settle the issue with the defendants in the suit in
question. Stand is also taken that life is sought to be put in the
agreements executed between plaintiff - Kantilal Patel and
defendants and others which have been declared as null and void
by judgment and decree dated 04.07.2012.
16. Captioned appeals came to be filed and were admitted by
order dated 18.07.2012 and interim order was passed. Relevant
excerpts read thus:
"ORDER IN CIVIL APPLICATION NOS.7922 OF 2012 AND 7923 OF
2012:
1. RULE. Learned advocates Mr. Ashish B. Desai for respondent
No.1 and 2, Ms. Trusha K. Patel for respondent No.3 (in C.A.
No.7922 of 2012), Mr. Tattvam K. Patel for respondent No.3 (in
C.A. No.7923 of 2012), Mr. Shivang Shukla for respondent No.4
and Mr. Viral Shah for respondent No.5, waive service of Rule.
2. By interim order, it is directed that:
(A) The original defendant Nos.1 and 2- applicants herein shall
handover the actual and physical possession of the suit property
bearing Revenue Survey No.250 of Village Raiya, District Rajkot,
admeasuring 168 acres and 39 gunthas to the Committee of the
Receiver, comprising of following persons:
(1) One Class-I Officer working in the administration of the
High Court of Gujarat, who may be nominated by the
Registrar General of this Court.
(2) Mamlatdar, Rajkot Taluka at Rajkot
(3) One officer working in the administration, as may be
nominated by the learned District Judge, Rajkot
(B) The Committee of Receiver shall get constituted after
appropriate nomination, i.e. by the Registrar General of this Court
and by learned District Judge, Rajkot in any case within two weeks
from today and possession of the property shall be handed over
by defendant Nos.1 and 2 within two weeks thereafter to the
Committee of the Receiver.
(C) It is also observed that in the Committee of the Receiver, the
officer nominated by the Registrar General of High Court shall be
Chairman and other two persons shall be Member. It will be open
to the Committee to take assistance of the police authority as well
as revenue authority as and when so required and requisitioned
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by the Chairman of the Committee.
(D) It would also be open to the Committee to preserve and
protect the suit property by taking help of any security agency as
the Committee may find it proper. Until decision is taken for
appointment of new security agency, present security agency,
namely G4S, so appointed by defendant Nos.1 and 2, shall
continue to preserve the property but the controlling power upon
such security Agency shall remain with the Committee and not
with defendant Nos.1 and 2.
(E) Towards expenses for the preservation of the suit property
etc., including expenses and remuneration of the members of the
Committee and security agency, defendant Nos.1 and 2-
appellants herein shall deposit amount of Rs.25 lakh within one
week from today. It will be open to the Committee to move this
Court for deposit of the further amount as and when so required
by showing justification thereof.
(F) All the aforesaid directions shall be complied with within four
weeks from today.
(G) After the aforesaid directions are complied with within a period
of four weeks from today, the execution and implementation of
the judgment and decree of the Trial Court shall remain stayed
but with the further direction that the original plaintiffs as well as
original defendants, namely the appellants as well as the
respondents herein, shall maintain the status quo qua their rights
or interest whatsoever so exist in the property and shall not
create any third party interest in their rights or interest pertaining
to the property.
(H) It is also observed and directed that until the Committee takes
over the possession of the property, status quo qua the
possession, rights and title over the property shall be maintained.
3. It is clarified that the observations made hereinabove are only
for the purpose of passing the interim order in the present
applications and shall not prejudice the rights of the either side
in the pending proceedings before the appropriate Court.
4. Civil Applications shall stand disposed of. Rule is made absolute
accordingly. No order as to cost."
The captioned appeals are pending and in the intervening
period in view of the settlement arrived at, the heirs of the plaintiff-
Kantilal Patel wish to withdraw the suit. Necessary affidavits were
filed and therefore, the captioned applications. Relevant paragraphs
5,6 and 7 of the captioned applications read thus:-
"5. The Applicant states that during the pendency of the
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present Appeals, the Applicant have accepted the various
agreement executed previously in favor of the Applicants of FA
No. 2238 of 2012 and 2239 of 2012 and have agreed to
implement the same. Therefore, the Applicant does not wish to
pursue SCS no. 186 of 2010 anymore which the Applicants have
been stating from a very long period of time. In fact, the
Applicants have also filed affidavit before this Hon'ble Court in
the present Appeal stating that the Applicants wish to withdraw
SCS No. 186 of 2010 unconditionally and that the First Appeals
No. 2238 of 2012 and 2239 of 2012 maybe allowed and the
judgment and decree passed in SCS No.186 of 2010 dated
04.07.2012 may be set aside.
6. It is stated that Kantilal Ambalal Patel passed away in
March, 2014. Thereafter, one of the legal heirs, Miraj Samir Patel,
filed a Purshish in the year 2014 before this Hon'ble Court
accepting the agreements executed in favor of the Applicants and
in the year 2018, Bhanuben Patel, wife of Kantilal Ambalal Patel &
Chhayaben Patel, daughter of Kantilal Ambalal Patel also filed a
similar Purshish.
7. It is stated that Dollyben Kantilal Patel also filed a similar
affidavit before this Hon'ble Court dated 22.06.2021 to withdraw
the suit."
17. Therefore, withdrawal of the suit in question is sought for at
the appellate stage and therefore, the issue is whether the
withdrawal can be permitted on mere application filed or the aspect
of rights acquired under the decree, need to be examined. In the
above background, the provisions of the Code so also the facts are
required to be considered. Relevant would be Order XXIII Rule 1 of
the Code, which provides for withdrawal of suit or abandonment of
part of claim. It states that any time, after the institution of the suit,
the plaintiff may as against all or any of the defendants, abandon
his suit or abandon a part of his claim. Sub-rule (1) of Rule 1 of
Order XXIII gives a liberty in favour of the plaintiff to withdraw the
suit. Order XXIII of the Code since have been discussed and argued,
is reproduced herein below for ready reference:-
"1. Withdrawal of suit or abandonment of part of claim.--(1) At
any time after the institution of a suit, the plaintiff may as against
all or any of the defendants abandon his suit or abandon a part of
his claim:
Provided that where the plaintiff is a minor or other person
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to whom the provisions contained in rules 1 to 14 of Order XXXII
extend, neither the suit nor any part of the claim shall be
abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1) shall
be accompanied by an affidavit of the next friend and also, if the
minor or such other person is represented by a pleader, by a
certificate of the pleader to the effect that the abandonment
proposed is, in his opinion, for the benefit of the minor or such
other person.
(3) Where the Court is satisfied,--
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to
institute a fresh suit for the subject matter of suit or part of a
claim,
It may, on such terms as it thinks fit grant the plaintiff permission
to withdraw from such suit or such part of the claim with liberty to
institute a fresh suit in respect of the subject-matter of such suit or
such part of the claim.
(4) Where the plaintiff--
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission
referred to in sub-rule (3),
he shall be liable for such costs as the Court may award and shall
be precluded from instituting any fresh suit in respect of such
subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to
permit one of several plaintiffs to abandon a suit or part of a claim
under sub-rule (1), or to withdraw, under sub-rule (3), any suit or
part of a claim, without the consent of the other plaintiff.
3. Compromise of suit.--Where it is proved to the satisfaction of
the Court that a suit has been adjusted wholly or in part by any
lawful agreement or compromise 1 in writing and signed by the
parties] or where the defendant satisfied the plaintiff in respect to
the whole or any part of the subject-matter of the suit, the Court
shall order such agreement, compromise or satisfaction to be
recorded, and shall pass a decree in accordance therewith [so far
as it relates to the parties to the suit, whether or not the subject
matter of the agreement, compromise or satisfaction is the same
as the subject-matter of the suit:
Provided that where it is alleged by one party and denied by
the other that an adjustment or satisfaction has been arrived at,
the Court shall decide the question; but not adjournment shall be
granted for the purpose of deciding the question, unless the
Court, for reasons to be recorded, thinks fit to grant such
adjournment."
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Reading of sub-rule (1) of Rule 1 of Order XXIII of the Code
suggest that it gives liberty to the plaintiff at any time after the
institution of the suit against all or any of the defendants, to
abandon the suit or part of the claim. So far as Rule 3 is concerned,
the same provides for compromise of the suit and satisfaction of the
Court, followed by passing of decree in accordance therewith.
Discernibly, the applicants are seeking withdrawal of the suit
simpliciter. In the present case, though there is settlement between
the parties, the parties are not proposing for disposal of the suit in
accordance with the compromise. Hence, at the outset, it is to be
stated that Order XXIII Rule 3 of the Code is not the case on hand.
Submissions of Mr R.S. Sanjanwala, learned Senior Counsel as
regards Order XXIII Rule 3, hence, cannot be accepted. The issue is
of withdrawal of the suit simpliciter and at the appellate stage. Thus,
some of the judgments dealing with the principle, need to be
referred to.
18. Heavy reliance is placed on the judgments by both the parties
in the case of R. Rathinavel Chettiar vs. V. Sivaraman (supra). The
issue before the Apex Court, was that can the decree, determining
the rights of the parties to the suit, be destroyed by making an
application for dismissing the suit as not pressed or unconditionally
withdrawing the suit at the appellate stage, if the suit has already
been decreed or for that matter dismissed. The Apex Court, while
considering various decisions of the High Courts, held and observed
that where a decree passed by the trial Court is challenged in
appeal, it would not be open to the plaintiff, at that stage, to
withdraw the suit so as to destroy that decree. The rights which
have come to be vested in parties to the suit under the decree
cannot be taken away by withdrawal of suit at that stage unless
very strong reasons are shown that the withdrawal would not affect
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or prejudice anybody's vested rights. The facts were that the
plaintiff therein filed a suit against the defendants seeking direction
of putting him in possession of the property. Suit was decreed by
the trial Court against the defendants and the defendants filed an
appeal before the High Court and during the pendency of the
appeal, the appellants were impleaded as respondents inasmuch as,
three days after the decree was passed by the trial Court, the
plaintiff sold the properties to the appellant and the properties in
the suit had been assigned to them. It is thereafter that the plaintiff
prayed for dismissal of the suit owing to the compromise with the
defendants. The suit was allowed to be dismissed and being
aggrieved, the appellant, the newly impleaded party was before the
Apex court. It was the argument that as the appellant was a
tranferees-pendente-lite and was vitally interested in the decree
remaining intact and the plaintiff having declared to be owner of the
property in the suit by the trial Court, dismissal of the suit would be
destroying the decree passed in favour of the plaintiff. Paragraphs
15 to 25 read thus:-
"15. In Kedar Nath and others vs. Chandra Kiran and others, AIR
1962 Allahabad 263, permission to withdraw the suit at the stage
of second appeal was refused. The Court observed that where the
case is at the stage of second appeal and the trial court has given
a finding of fact which is binding in second appeal, the Court
should not deprive the party of the plea of res judicata by allowing
the plaintiff to withdraw the suit at that stage.
16. This decision was considered by the Division Bench of the
same High Court in Vidhydhar Dube and others v. Har Charan and
others, AIR 1971 Allahabad 41 and was approved. It was held that
the right of the plaintiff to withdraw the suit at the appellate stage
is not an absolute right but is subject to rights acquired by
defendant under the decree. It was also observed that withdrawal
may be permitted if no vested or substantive right of any party to
the litigation is adversely affected. The decision of this Court in
Hulas Rai Baij Nath v. K.P. Bass & Co., AIR 1968 SC 111, was also
considered and distinguished by observing as under:-
"In that case the Court had to consider the right of a plaintiff to
withdraw the suit before a decree came into existence and not
after the decree had come into being. It was observed: "It is
unnecessary for us to express any opinion as to whether a Court is
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bound to allow withdrawal of the suit of a plaintiff after some
vested right may have accrued in the suit in favour of the
defendant. On the facts of this case, it is clear that the right of the
plaintiff to withdraw the suit was not at all affected by any vested
right existing in favour of the appellant and, consequently, the
order passed by the trial court was perfectly justified." In the
present case, however, a right has become vested in the
defendant after the decree in the suit had been passed."
17. Kedar Nath case was followed in Kanhaiya v. Dhaneshwari,
AIR 1973 Allahabad 212, in which it was again laid down that the
plaintiff does not have an unqualified or unfettered right under
Order 23 Rule 1(1) C.P.C. to withdraw the suit at the appellate
stage when rights have accrued to the respondents under the
decree.
18. Both these decisions, namely, the decision of the Allahabad
High Court in Kedar Nath case and Kanhaiya case were followed
by the Andhra Pradesh High Court in Thakur Balaram Singh v. K.
Achuta Rao, 1977 (2) A.P.L.J. 111, and it was held that though the
plaintiff has an absolute right to withdraw his suit before the
passing of a decree under Order 23 Rule 1(1) C.P.C. but
permission to withdraw the suit at the appellate stage would be
refused if it would have the effect of prejudicing or depriving any
right which became vested in the respondents or had accrued to
them by reason of the findings recorded by the trial court.
19. The Allahabad decisions, referred to above, were followed
by the Rajasthan High Court in Ram Dhan v. Jagat Prasad Sethi,
AIR 1982 Rajasthan 235, and Kasliwal, J.(as he then was) held that
if the withdrawal of the suit at the appellate stage would have the
effect of destroying the rights which had come to be vested in the
defendant-respondents, the suit would not be permitted to be
withdrawn. It was also held that though the plaintiff has an
unqualified right to withdraw the suit under Order 23 Rule 1(1)
C.P.C., he cannot be allowed to do so at the appellate stage. It
was observed that though it is right that the plaintiff would be
precluded from bringing a fresh suit on the same subject matter, it
could not be denied that the defendant would not be entitled to
use the findings given in such a suit as res judicata in subsequent
proceedings.
20. The same view was also expressed by the Punjab and
Haryana High Court in Sh. Guru Maharaj Anahdpur Ashram Trust
Guna v. Chander Parkash, 1986 (1) 89 Punjab Law Reporter 319.
The Court observed:-
"Once the decree is passed by the trial court, certain rights are
vested in the party in whose favour the suit is decided. Thus, the
plaintiff is not entitled to withdraw the suit as a matter of course
at any time after the decree is passed by the trial court. In these
circumstances, the lower appellate court has acted illegally by
allowing the plaintiffs to withdraw the suit after setting aside the
judgment and decree of the trial court dismissing the suit."
21. In another Allahabad decision in Jutha Ram v. Purni Devi, ILR
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1970 (1) Allahabad 472, the plaintiff compromised the suit with
certain defendants at the appellate stage and gave an application
to withdraw the suit against those defendant-respondents. The
Court refused permission to withdraw the suit as the withdrawal
would have the effect of depriving the other respondents of the
benefit of the lower courts' adjudication in their favour. This
decision, incidentally, applies squarely to the facts of the present
case as in this case also the plaintiff compromised with one of the
respondents and gave an application for withdrawal of suit.
Obviously, the intention was to deprive the appellants of the
benefit which had accrued to them on account of a declaratory
decree having been passed in favour of the plaintiff who
incidentally was their predecessor-in- interest.
22. In view of the above discussion, it comes out that where a
decree passed by the trial court is challenged in appeal, it would
not be open to the plaintiff, at that stage, to withdraw the suit so
as to destroy that decree. The rights which have come to be
vested in parties to the suit under the decree cannot be taken
away by withdrawal of suit at that stage unless very strong
reasons are shown that the withdrawal would not affect or
prejudice anybody's vested rights. The impugned judgment of the
High Court in which a contrary view has been expressed cannot
be sustained.
23. The High Court also committed an error in not considering
the impact of Rule 1-A which was inserted in Order 23 by the Code
of Civil Procedure (Amendment) Act, 1976 (104 of 1976). This Rule
provides as under:-
"1-A. When transposition of defendants as plaintiffs
may be permitted.- Where a suit is withdrawn or
abandoned by a plaintiff under Rule 1, and a
defendant applies to be transposed as a plaintiff
under Rule 10 of Order I, the Court shall, in
considering such application, have due regard to the
question whether the applicant has a substantial
question to be decided as against any of the other
defendants."
24. The appellants before us, no doubt, had not applied before
the High Court for being transposed as plaintiffs in place of the
original plaintiff who had made an application for withdrawal of
suit, but it cannot be overlooked that the plaintiff had transferred
the property in suit in favour of the appellants, and, that too, after
a declaration was given in his favour by the trial court that he was
the owner of that property. It was thereafter that the appellants
were impleaded as respondents in the appeal under Order 22 Rule
10 C.P.C. Once the property was transferred to the appellants and
the appellants were also impleaded as respondents in the appeal
before the High Court, they were virtually in the position of the
plaintiffs. Since they had purchased the property from the plaintiff
after a declaration was given in his favour that he was the owner,
a valuable right came to be vested in the appellants which could
not be taken away by the plaintiff by withdrawal of the suit
unconditionally as the withdrawal was positively to have the effect
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of destroying the decree already passed in favour of the plaintiff.
25. As a desperate bid to save the lost battle, learned counsel
for plaintiff-respondent No. 1 contended that since the appellants
had obtained the sale-deed by fraud, which would not have the
effect of conveying any title to them, they cannot, in the matter of
withdrawal of suit, intervene nor can they be heard to oppose
withdrawal. We are not entering into the legality of the sale-deed
as it is not the subject matter of the suit under appeal. Since
appellants had already been impleaded as respondents in the
appeal on the basis of that sale-deed, they have a right to be
heard in the matter of withdrawal of suit."
It has been held and observed that the withdrawal of the suit
at the appellate stage, if allowed, would have the effect of
destroying or nullifying the decree affecting thereby the rights of
the parties which came to be vested under the decree, and it cannot
be allowed as a matter of course but has to be allowed rarely, only
when a strong case is made out.
19. In another decision in the case of Executive Officer,
Arthanareswarar Temple vs. R. Sathyamoorthy (supra), the issue
was somewhat similar. The Apex Court, while allowing the appeal,
noted that the respondent sought to withdraw the original petition
as well as the revision petition, to which the objection was raised on
the ground that if the withdrawal is permitted, the department
would be put to great difficulties. The point for consideration before
the Apex court was, whether order of the High Court permitting
withdrawal of the revision petition and the original petition, was
liable to be interfered with. The Apex Court, while allowing the
appeal, in paragraph 14, has observed thus:-
"14. It is true that in a large number of cases decided by the
High Courts, it was held while dealing with applications under
Order 23, Rule 1, CPC, that if an appeal was preferred by an
unsuccessful plaintiff against the judgment of the trial Court
dismissing the suit and if the plaintiff appellant wanted to
withdraw not only the appeal but also the suit unconditionally,
then such a permission so far as the withdrawal of the suit was
concerned, can be granted if there was no question of any
adjudication on merits in favour of the defendants by the trial
being nullified by such withdrawal. On the other hand, if any such
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findings by the trial court in favour of the defendant would set
nullified, such permission for withdrawal of the suit should not be
granted. (See Thakur Singh v. A. Achuta Rao; Kedar Nath v.
Chandra Karan; V. Dube v. Harcharan; Charles Samuel v. Board of
Trustees; Lala Chetram v. Krishnamoni; Jubedan Begum v.
Sekhawat Ali Khan;Ram Dhan v. Jagat Prasad. In the present case,
the learned Judge felt that no such finding in favour of the
Commissioner was being nullified by the withdrawal of the OP at
the stage of revision and therefore the withdrawal of OP was
permissible."
20. Yet in another judgment in the case of Sneh Gupta vs. Devi
Sarup & Ors. (supra), the Apex Court in paragraph 20 has observed
thus:-
"20. It is not a case where the original plaintiff applied for
withdrawal of the suit similiciter. She did so relying on or on the
basis of a compromise entered into by and between the parties. If
a suit is to be decreed or dismissed on the basis of a compromise,
even permission to withdraw the suit pursuant thereto, in our
opinion, order XXIII Rule 1 of the Code may not have any
application. Even in such a case, a permission to withdraw the suit
could have been given only with notice to the respondents who
had become entitled to some interest in the property by reason of
a judgment and decree passed in the suit. The Court for the
purpose of allowing withdrawal of a suit after passing the decree,
viz., at the appellate stage, is required to consider this aspect of
the matter."
It has been held and observed that if the suit is to be decreed
or dismissed, that the Court for the purpose of allowing the
withdrawal of the suit, after passing the decree, namely, at the
appellate stage is required to issue notice to the defendants, who
had become entitled to some interest in the property by reason of a
judgment and decree.
21. Common thread running through all the judgments is that
while allowing withdrawal of the suit after passing of the decree and
at the appellate stage, the Court shall determine whether
withdrawal would have the effect of destroying or nullifying the
decree, thereby affecting the rights of the parties which came to be
vested. Pertinently, in the case on hand, the request of withdrawal
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of the suit, though simpliciter, is at the appellate stage. Besides, it is
not the case where the plaintiff has lost in the suit and in appeal, is
desirous of withdrawing, both the appeal and the suit, but is the
case where the plaintiff though has succeeded and the findings
recorded are in his favour, is desirous of withdrawing the suit. The
resultant effect would be that the judgment & decree would go and
documents and deeds would revive. The findings recorded are
against the defendants as to how they have illegally executed the
agreements, power of attorney so on and so forth. It is difficult to
fathom as to how these findings can be said to be in favour of
Harishchandrasinhji Jadeja and Kalpesh Patel or any right having
been vested. The findings surely are not in their favour.
22. Therefore, considering the above-referred principle, brief facts
derived from the record, are worth referring to, as it would be
necessary to examine whether there are any findings in the
impugned judgment and consequent vesting of the rights in favour
of the objectors, namely, Harishchandrasinhji Jadeja and Kalpesh
Atmaram Patel and withdrawal would nullify the same ?
23. Discernibly, in the year 2010, various documents were
executed between plaintiff - Kantilal Patel on one hand and Siddhi
Infrastructure and Nakulan S. Paniker on the other. On 29.04.2010,
agreement was executed for transfer of land in question for Rs.76
crore and all rights under the decree dated 07.02.2001 were
assigned. Partnership deed was executed by and between plaintiff -
Kantilal Patel and Vallabhji Nagada on 19.07.2010 whereby, both of
them became the partners of Sai Developers as per their respective
shares; followed was another agreement dated 31.07.2010 between
plaintiff - Kantilal Patel and Vallabhji Nagada wherein, assigning of
decretal rights in favour of Siddhi Infrastructure was also
recognized. Possession receipt dated 31.07.2010 was accordingly
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issued by plaintiff - Kantilal Patel, signed by the applicant - Dollyben
Patel as witness.
24. On 31.07.2010, registered power of attorney has been
executed in favour of Arvind Jani, i.e. defendant no.3 and Vallabhji
Nagada, i.e. defendant no.4 for carrying out duties and executing
contract in favour of Nakulan Paniker - defendant no.2. The
agreement which was executed between plaintiff - Kantilal Patel and
Siddhi Infrastructure through its partner dated 26.07.2010, was
registered. It was agreed that the agreement dated 29.04.2010
would be treated as part of that agreement. Consideration was also
agreed with certain modifications. Another agreement was executed
by Arvind Jani, the power of attorney holder of plaintiff - Kantilal
Patel in favour of Siddhi Infrastructure on 06.08.2010.
25. It appears that the understanding did not went through as
desired and hence, plaintiff - Kantilal Patel filed a Special Civil Suit
no.186 of 2010, raising the grievance that the agreements dated
29.04.2010, 02.08.2010, 06.08.2010 and other are voidable at the
instance of the plaintiff and are required to be set aside. Following
issues were formulated:
"(1) Whether the Plaintiff proves that the defendants have
committed breach of trust and agreement in complying with
the agreement dated 02.08.2010?
(1-A) Whether the Plaintiff proves that the Plaintiff no.2 is
entitled to file the suit by virtue of Power of Attorney given
by Plaintiff no.1?
(2) Whether the Plaintiff proves that he is the owner and in
possession of the suit property?
(3) Whether the Plaintiff proves that the defendants no.3,4
in collusion with defendant no.1, 2 have entered into
agreement dated 06.08.2010 without consent and
knowledge of the Plaintiff?
(4) Whether the Plaintiff proves that defendants no.3,4 in
collusion with defendants no.1.2 have cheated the Plaintiff?
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(5) Whether the Plaintiff proves that the defendants in
collusion have entered into agreement dated 02.08.2010
being well aware of the fact that the proceedings/formalities
relating to title-clearance would not be completed within
four months?
(6) Whether the Plaintiff proves that defendants have
committed breach of agreements dated 29.04.2010,
02.08.2010 and 06.08.2010?
(7) Whether the defendants prove that they have duly
complied with the terms of the agreement dated
02.08.2010?
(8) Whether the defendants no.1,2 prove that the Plaintiff
had consented for payment of cheques of balance amount of
consideration of Rs.66 crores to be paid to Power of
Attorney?
(9) Whether the defendants prove that the suit is barred
by O.II R2 of the Code of Civil Procedure?
(10) What order and decree?"
Bare perusal of the issues formulated in the suit in question
clearly suggests that the controversy was revolving around the
agreement, power of attorney and the deeds executed between the
plaintiff and the defendants therein. Harishchandrasinhji Jadeja and
for that matter Kalpesh Patel were nowhere in the picture. While
deciding the issue nos.1 to 6, pertaining to the agreement, the
learned Judge in paragraph nos.72 to 79 and 83 to 85, 87, 89 and 90
has observed thus:-
"72. Having heard the rival sabmissions of the parties and the
evidence placed on record,it appears that the defendants have
colluded and have failed to perform their part of the obligations
under the agreements dated 29.04.2010 and 02.08.2010. The
defendants have further commited breach of the previous two
agreements by entering into third agreement dated 06.08.2010
without the consent,connivance and knowledge of the Plaintiffs.
The pattern of construction of the covenants,deviation from
material terms and conditions than those agreed under the
previous agreements, its concealment from the Plaintiffs clearly
suggests that it was designed to gain undue benefits and take
away substantial portion from the amount payable to the Plaintiffs
thus adverse to the interest of the Plaintiffs and this act of the
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defendants amounts to fundamental breach of the previous two
agreements The defendants have admitted that they have not
paid 66 crores to the Plaintiffs. Under the agreement dated
02.08.2010 the payment of 66 crores was not mule conditional
upon removal of objections within four monhs the defendants
could not have indefinitely postponed the payment of 66 crores to
the Plaintiffs.The defendants failed to perform their part of the
contract under the agreement dated 02.08.2010 and no steps
were taken to settle the claims of third parties. There is also no
evidence to show that consideration under the agreements has
reached the Plaintiffs.The defendant no.3 entered into conspiracy
with defendants no.1,2 to deprive the Plaintiff of his valuable
rights under the previous agreements and thus the defendants in
collusion committed breach of terms of previous two agreements.
The defendant no.3 ought to and could have discharged his duties
as agent of Plaintiffs in a honest and bonafide manner.
Theagreement dated 06.08.2010 is signed by the defendant no.3
as power of attorney holder of the Plaintiffs and not by the
Plaimtiffs.On perusal of the document the power of attorney
granted to defendant no.3,4 does not specifically empower the
defendant no.3 to enter into such agreement ard the action of the
defendant no.3 is outside the scope of and authority assigned to
him under the power of attorney.
73. Under S.227 of the Contract Act,it is laid down that when an
agent does more than he is authorised to do, and when the part of
what he does which is within his authority can be seperated from
the part which is beyond his authority so much only of what he
does as is within his authority is binding as between him and his
principal. Under the transaction, the obligation of settling disputes
with heirs of Harishchandrasinh and third parties was cast upon
defendant no.3.The defendant no.3 was never authorised to
modify the agreements under the power of attorney given to
him.and his act of modifying the agreement and introducing new
terms and conditions completely deviating from the previous
agreement being outside the scope of and authority granted to
him under the power of attorney cannot be said to binding to the
Plaintiffs.S.228 of the Contract Act provides that when an agent
does more than he is authorised to do and what he does beyond
the scope of his authority cannot be seperated from what is within
ilthe principal is not bound to recognise the transaction In the
fuets of the case on hand, this aspeci tilts in favour of the case of
the Plaintiffs.in such a situation, the agreement dated 06.08.2010
signed by defendant no.3 as power of attorney holder of Plaintiff is
not binding to the Plaintiffs.
74. The defendants no.3,4 have not stepped into the witness box
and hence adverse inference can be drawn against them.S.215 of
the Contract Act provides that if an agent deals on his own
account in the business of the agency,without first obtaining the
consent of his principal and acquainting him with all material
circumstances which have come to hisown knowledge on the
subject,the principal may repudiate the transaction, if the case
shows that any material fact has been dishonestly concealed from
him by the agent or that the dealings of the agent have been
disadvantageous to him.As the agreement dated 06.08.2010 was
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tha result of dealings of defendant no.3 in collusion with
defendants no.1,2 completely deviating from the previous two
agreement and tentamounts to an act of fraud and misconduct on
the part of the defendants and the same was concealed from the
Plaintiffs by the defendants and this heing disadvantageous to the
interests of the Plaintiffs, in context of the said provision it is open
to the Plaintiff as principal to to repudiate the transaction as it was
made without the knowledge and consent of the Plaintiffs. The
defendants having thus committed breach of agreements dated
29.04.2010,02.08.20/0.06.08.2010, the agreements cre not
binding to the Plaintiffs and the Plaintiffs can be said to have been
discharged from their obligations under these agreements since
the latter part of the contract was made without the knowledge of
the Plaintiff and was detrimental to his interests in the suit land.
75. The Plaintiff no.2 herein is the power of attorney holder of
Plaintiff no.1 and has joined as a party to the suit in her capacity
as such and has sufficient interest to file the suit. Two power of
attorney deeds are granted in her favour on 28.07.2010 and
26.10.2010 respectively. and under these power of attorney's the
Plaintiff no.2 is entitled to take all legal steps to protect the
interest of Plaintiff no..Looking to the first Deed of Power of
attorney she is entitled to bring the suit under this power of
attorney. The Plaintiff no.2 is examined as a witness. The
defendants have also admitted that she was present when
different documents were executed and thus Plaintiff no.2 is the
natural witness.She has given evidence relating to the health of
Plaintiff no. to the extent that he was not capable of
understanding the agreements,or take a rational judgment about
it and had temporarily lost competence to understand such
complex transaction.The evidence given by her is supported by
the version of Dr.Jwalit Sheth and even by Dr. Kirti Patel who has
supported the version of neurosurgeon in assessing the
Impairment of mental faculties of Plaintiff no.I This evidence does
not have any impact on the action of filing of suit.
In the light of the above,l answer Issue no.1,1-A,2,3,4,5,6 in
the affirmative.
ISSUE NO.7,8:
76. In order to avoid repetition of facts and circumstances, Issue
no.7,8 are hereby decided together.
The defendants have set up a case that on parellel reading
of agreements dated 02.08.2010 and 29.04.2010 it is evident that
after getting title-clearance in respect of the suit land the
remaining amount was to be paid within one month by the
defendants. The dejendants were ready and willing to make this
payment and have handed over advance cheques with an
asurance that they would be definitely honoured and thus the
defendants have fulfilled their part of the obligation under the
contract and have complied with the agreements.lt is contended
that the defendant no.3 was introduced to defendants no.1,2 at
the instance of the Plaintiff as well as that he had consented for
his inclusion as partner The Plaintiffs were aware from the
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inception of the contract that defendant no.4 was the
representative of defendant no.1,2 and there is no question of any
collusion between the defendants.
77. The other contention raised by the defendants is that since
Kabja Pavti is seperately issued by Plaintiffs and the Plaintiffs have
admitted their signatures even if it is not admissible in evidence
can be read in evidence against the Plaintiff and that the Plaintiff
cannot challenge its legality.It is submitted that looking to the
conduct of the defendants they were ready and willing to comply
with all terms and conditions of the agreements. As stated in the
agreement dated 29.04.2010 it is specifically agreed upon that
the Plaintiff would assign power of attorney to representative of
defendant no..The Plaintiff was quite aware when the power of
attorney was assigned to defendants no.3,4 Under the
circumstances, the defendant no.3 was acceptable to all parties
and that the defendant no.3 does not intend to cheat or cause loss
or damage to the Plaintiffs. If the defendant intended to do so he
could have misused the power of attorney assigned in the year
2006. The defendant no.3 could have negotiated any terms and
conditions with defendanis no.1,2 and thereby the allegations
against defendant no.3 are false.lt is submitted that the defendant
no.4 introduced as a partner at the instance of defendant no. has
taken care of interest of the Plaintiff in the agreement dated
06.08.2010 to the extent that the defendant no.4 shall have no
share in the amount of 66 crores and thus the allegations against
defendant no.4 are baseless.It is contended that no new
conditions are incorporated in the agreement dated 06.08.2010
but are explanatory with respect to earlier agreements.
78. In lieu of agreement dated 02.08.2010, the defendant no.1
was to pay 66 crores within four months on completion of
settlements with heirs of Harishchandra and third party banakhat
holders.The obligation of bringing about settlements with third
parties was cast on defendant no.3.No evidence is placed on
record to show that understanding was arrived at between
defendant no.3 and third parties or that efforts were made by
defendant no.3 to have a dialogue with third parties. Instead the
defendants no.1,3 entered into altogether different agreement
dated 06.08.2010 deviating in material terms from the previous
two agreements. This agreement was made without the
consent,connivance and knowledge of the Plaintiffs and as evident
from the language and construction of the covenants it appears
that there was concealment with respect to the contents in the
agreement. This agreement is not signed by the Plaintifs. It is the
say of the defendant no. that he has delivered cheques of 66
crores to defendant no.3 and has thus performed his par of the
obligation under the contract. There is no evidence on record to
show that the defendant no.1,2 ever had any financial tie-ups or
linkages with any bank or financial institutions. The defendant no.I
has also not produced bank statement or books of accounts. He
has further stated in his deposition that he does not remember
how much moneys have been invested by him in the project.
Rajesh Nagda who has given evidence on behalf of defendant
no.1,2 as Chartered Accountant of defendant no.1,2 and as son of
defendant no.4 has stated in his version that he does not know
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who invested the moneys for the drafts of earnest money from
whose account the moneys were withdrawn. He does not know
from which account cheques for 66 crores have been drawn.He
does not know whether the defendant no.2 firm had any financial
tie-ups with banks or financial institutions. He does not whether
there was balance of 66 crores in the account of the firm Under
the circumstances the dejendants have failed to establish that
they had the capacity to pay 66 crores.Mere delivery of cheques
cannot be taken into account to consider readiness and
willingness' on the part of the defendants. The defendants have
admitted in their depositions that they have not paid the amount
of 66 crores to the Plaintiffs.The defendants no.3,4 have not
entered the witness box and hence adverse inference can be
drawn against them.
79. In the light of the above, as the defendants have failed to
establish that they complied with terms of agreement dated
02.08.2010 and have also failed to establish that the Plaintiff had
consented for payment of cheques to defendant no.3,1 answer
Issue no.7,8 in the negative.
83. Reliance is placed on the judgment in the case of Jemma
V.Raghu as reported in AIR 1977 Ori 12 wherein it is observed that
under S.34,41 of the Specific Relief Act, when Plaintiff is not in
possession, relief of injunction cannot be granted.
In the facts of the case therein it came to be observed that
as the Plaintiff was not in possession on the date of the suit was
therefore not entitled to relief of injunction without cliaming for
recovery of possession. In the facts of the case on hand, it is the
case of the Plaintiffs that they never agreed to deliver possession
of the suit property to the defendants. It is also expressly stated in
the agreements dated 29.04.2010 and 02.08.2010 that the
possession would remain with the Plaintiffs and that the same
would be delivered only at the time of execution of Sale-deed
when full payment is received. The registered agreement dated
02.08.2010 presented for registration before the Sub-registrar,a
statutory authority under the Registration Act indicates that
possession is not delivered to the defendants.The Kabja Pavti by
which the defendants claim to be in possession being unregistered
and not duly stamped as required under the legal mandate is not
admissible in evidence as proof of lawful possession on the part of
the defendants in the absence of any Deed of Conveyance.It is the
case of the Plaintiffs that the defendants have deliberately
sneaked into possession.This claim by way of Kabja Pavti is made
to support their another false claim that possession of the suit
property was handed over by the Plaintiffs and have created a
false show that they are in possession.In this context this citation
is not useful to the case of the defendants.
ISSUE NO.9:
84. The defendants have resisted the filing of the present suit on
the ground that the Plaintiffs had earlier filed Sp.C.S.no.295/2010
in respect of the same relief as mentioned Para 5(d) of the plaint
on 27.09.2010 while the present suit is filed on 29.09.2010 and
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that therefore the Plaintiff is not entitled to bring the present suit
and is not tenable-under OIl.R.2 of the code of Civil Procedure.A
perusal of the record indicates that the same has been withdrawn
on technical grounds relating to jurisdiction and no more survives.
The Plaintiffs have pleaded all reliefs claimed by them in the
present suit and hence the suit is not burred under OlI.R.2 of the
Code of Civil Procedure.
Accordingly, I answer Issue no.9 in the negative.
ISSUE NO.10:
85. It is the case of the Plaintiffs that the agreements dated
29.04.2010, 02.08.2010,06.08.2010 and other agreements made
between Plaintiffs and defendants are voidable at the instance of
the Plaintiffs and are required to be set aside.On comparison of
terms and conditions of the agreements dated 29.04.2010 and
02.08.2010 on one hand and the terms and conditions of the
agreement dated 06.08.2010 on the other hand, it appears that
the agreement dated 06.08.2010 contained terms and conditions
totally inconsistent with the terms and conditions of the previous
two agreements dated 29.04.2010 and 02.08.2010.The
agreement is on a quite different footing in respect of modalities
of terms of payment and there is complete deviation from the
previous two agreementsThe pattern of construction of the
covenants and the changes made in the terms and conditions
seems to have been made in the self-interest of the makers of the
agreement and detrimental to the interests of the Plaintiff and
suggests bad faith,breach of trust,malafides and fraudulent and
wrongful actions of the defendants.
86. The witness Dr.Jwalit Sheth examined on behalf of the
Plaintiffs has opined that during the period between March-
August,2010 the mental faculties of Plaintiff no. were impaired
and was not found to possess sufficient mental capacity to take
well informed decisions regarding the management of his affairs
on his own or to comprehend the nature of transactions and their
terms and conditions of his own and would not have been able to
read and fully understand such documents, appreciate or respond
to the same.
87. As per the agreement dated 02.08.2010, the amount of 66
crores was to be paid within four months on completion of
settlements with third parties. The task of bringing about
settlements with heirs of Harishchandrasinh Jadeja and third
party. banakhat holders was assigned to defendant no.3 as power
of attorney of Plaintiff no.1.Admittedly,the defendant no.3 Arvind
Jani has not entered the witness-box. No evidence is produced
which would go to show that the defendant no.3 had made any
efforts to enter into such understanding or whether he had any
dialogue with third parties.The witness Rajesh Nagda ,son of
defendant no.4 has given evidence in his capacity as Chartered
Accountant of defendant no.1,2 and son of defendant no.4. He has
also admitted that the defendants have not paid the sum of 66
crores to the Plaintiffs. There is no evidence on record io show
that defendant no.2 firm has any financial capacity to pay 66
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crores.No evidence is placed on record which would suggest that
the firm had any financial tie-up or had borrowed loan or working
capital from any banks or financial institutions for paying 66
crores or that the firm had any internal financial strength to make
such payment. No audited accounts are placed on record. The
defendant no.4 has admitted that there is no evidence that the
defendant firm possessed capacity to pay 66 crores Both witness
Rajesh Nagda and defendant no.l have admitted in their
depositions that they have not paid the sum of 66 crores to the
Plaintiffs but have merely handed over cheques to defendant
no.3.Mere issuance of cheques without any evidence regarding
financial tie-ups or arrangements for clerunace of such cheques
cannot be considered to be an act of readiness and willingness on
the part of the defendants to fulfill their obligations under the
contract and cannot be construed as actual performance under
the agreement dated 02.08.2010.The defendants have admitted
that they have not paid 66 crores to the Plaintiffs. Under the
agreement dated 02.08.2010 the payment of 66 crores was not
made conditional upon removal of objections within four months
the defendants could not have indefinitely postponed the payment
of 66 crores to the Plaintiffs This impliedly suggests that the
defendants did not perform their part of the contract. There is also
no evidence to show that consideration under the agreements has
reached the Plaintiffs. Under the circumstances, even if it is
construed that the Plaintiff no. was in a fit state of health the fact
remains that the balance amount of consideration under the
agreement has not reached the Plaintiffs.
89. The defendants no.3,4 have not stepped into the witness box
and hence adverse inference can be drawn against them.S.215 of
the Contract Act provides that if an agent deals on his own
account in the business of the agency, without first obtaining the
consent of his principal and acquainting him with all material
circumstances which have come to his own knowledge on the
subject, the principal may repudiate the transaction, if the case
shows that any material fact has been dishonestly concealed from
him by the agent or that the dealings of the agent have been
disadvantageous to him.As the agreement dated 06.08.2010 was
the result of dealings of defendant no.3 in collusion with
defendants no.1,2 completely deviating from the previous two
agreement and tentamounts to an act of fraud and misconduct on
the part of the defendants and the same was concealed from the
Plaintiff's by the defendants and this being disadvantageous to
the interests of the Plaintiffs in context of the said provision it is
open to the Plaintiff as principal to to repudiate the transaction as
it was made without the knowledge and consent of the
Plaintiffs.The defendants having thus committed breach of
agreements dated 29.04.2010,02.08.2010.06.08.2010 the
agreements are not binding to the Plaintiffs and the Plaintiffs can
be said to have been discharged from their obligations under
these agreements
90. The defendants claim that they are in possession of the suit
land by way of Receipt of Possession (Kabja Pavti) dated
31.07.2010.The defendants claim that they have availed
telephone and electricity connections on the site, entered into
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correspondence with security services and are in possession of
the suit land.it is the case of the Plaintiffs that they never agreed
to deliver possession of the suit property to the defendants.It is
also expressly stated in the agreements dated 29.04.2010 and
02.08.2010 that the possession would remain with the Plaintiffs
and that the same would be delivered only at the time of
execution of Sale-deed when full payment is received. The said
Kabja Pavti is not a registered document. It is well settled legal
preposition that full stamp duty and registration is required if
there is transfer of possession. Since the Kabja Pavti is not
registered and does not bear the stamp duty payable under the
transaction the same cannot be made admissible in evidence for
holding that defendants are in possession of the suit property. The
registered agreement dated 02.08.2010 presented for registration
before the Sub-registrar, a statutory authority under the
Registration Act indicates that possession is not delivered to the
defendants.This Kabja Pavti being unregistered and not duly
stamped as required under the legal mandate is not admissible in
evidence as proof of lawful possession on the part of the
defendants in the absence of any Deed of Conveyance Under the
circumstances, since one of the sole object of the suit is protection
by means of prohibitory order, if defendants are not restrained by
way of any prohibitory relief as sought for and the subject matter
of the dispute is not directed to be preserved or such order is
withheld it may practically result in the property being unlawfully
withheld by dejendants in the event of any unplesant actions as
complained of in the present suit and might even result in suit
property going away from the hands of the Plaintiffs. Hence
preserving the property by prohibitory order will serve the ends of
justice.
In view of the above discussion,considering the pleadings,
relevant submissions,evidence placed on record and the reasons
as mentioned hereinbefore, l pass the following order.
ORDER
The present suit is hereby allowed.
It is hereby declared that the Plaintiff is entitled to cancel the regd.agreement dated 02.08.2010 in respect of the suit property.
It is hereby declared that the Receipt of possession (Kabja Pavti) being unregistered and insufficiently stamped is null and void.
It is hereby declared that the Plaintiffs are in lawful possession of the disputed property by virtue of order in Sp.C.S.no.350/2000 and the defendants have no right, share in the suit land. The defendants are hereby ordered to be restrained by way of permanent injunction from entering upon the suit land.
The defendants are hereby ordered to be restrained by way of permanent injunction from either selling, transferring or alienating the suit land by misusing the agreement dated 02.08.2010 as well as Power of attorney, Deed of Partnership incidental to said agreement as well as from creating any rights of third. parties as Page 59 of 67 Uploaded by BINOY B PILLAI(HC00183) on Thu Nov 21 2024 Downloaded on : Sat Dec 14 00:02:33 IST 2024 NEUTRAL CITATION C/FA/2238/2012 IA JUDGMENT DATED: 18/11/2024 undefined well as from making any writings.
It is hereby declared that the agreement dated 06.08.2010 executed by defendants no.3,4 in favour of defendants no.1,2 is illegal, malafide fraudulent as well as ultravires and not binding to the Plaintiffs.
It is hereby declared that the Plaintiffs are discharged from their obligations under agreements dated 29.04.2010 and 02.08.2010 as well as from liabilities and writings incidental to these agreements on account of breach committed by defendants.
The defendants are hereby ordered to be restrained by way of permanent injunction from obstructing the Plaintiffs in any manner whatsoever in their possession of the suit land.
Decree be drawn accordingly.
Pronounced in open court or this 4" day of July, 2012."
26. Considering the submissions and evidence on record, issue nos.1 to 6 have been answered in affirmative. Issue nos.7 to 9 have been answered in negative. The learned Judge, has in great detail discussed issue no.1, 1A and 2 to 6, so also the agreements, the evidence and ultimately, as aforesaid, concluded that defendants have colluded and have failed to perform their part of the obligations under the agreements dated 29.04.2010 and 02.08.2010. Besides, they have committed breach of the provisions of two agreements by entering into third agreement dated 06.08.2010 without the consent, connivance and knowledge of the plaintiff. The learned Judge was of the opinion that the defendants have committed breach of the agreements dated 29.04.2010, 02.08.2010, 06.08.2010 and are not binding to the plaintiff. After in- depth discussion, the suit came to be allowed declaring that the plaintiff is entitled to cancel the registered agreement dated 02.08.2010. Moreover, the receipt of possession (Kabjapavti) being insufficiently stamped, was declared as null and void. Declaration was also ordered that the plaintiffs are in lawful possession of the disputed property by virtue of order in Civil Suit no.350 of 2000 and Page 60 of 67 Uploaded by BINOY B PILLAI(HC00183) on Thu Nov 21 2024 Downloaded on : Sat Dec 14 00:02:33 IST 2024 NEUTRAL CITATION C/FA/2238/2012 IA JUDGMENT DATED: 18/11/2024 undefined the defendants have no right and share in the suit land. Defendants have been permanently restrained from entering the land in question, so also from alienating, transferring it by misusing the agreement dated 02.08.2010 as well as power of attorney, deed of partnership etc. The agreement dated 06.08.2010 executed by the defendant nos.3 and 4 in favour of defendant nos.1 and 2 have also been declared as illegal and mala fide and not binding to the plaintiff. Reading of the impugned judgment suggests that no right has been vested either in favour of Harishchandrasinhji Jadeja and Kalpesh Patel. In none of the paragraphs, there is a whisper about any rights having been vested in Harishchandrasinhji Jadeja or for that matter Kalpesh Patel. Considering the issue involved in suit in question and the issues formulated and the finding recorded, it can hardly be said that if the withdrawal is permitted, Harishchandrasinji Jadeja and Kalpesh Patel would be affected.
27. Besides, Civil Suit no.350 of 2000 filed by plaintiff - Kantilal Patel against Harishchandrasinhji Jadeja through his power of attorney, was decreed vide judgment dated 07.02.2001, directing payment of Rs.12 lac in addition to the payment of Rs.12 lac already made and execution of the sale deed. It is not in dispute that the said judgment and decree dated 07.02.2001 is subject matter of challenge in Special Civil Suit no.53 of 2002 filed by Harishchandrasinhji Jadeja against plaintiff - Kantilal Patel and others. In the suit, certain amendments were prayed for, which have been allowed. Prayer, is sought for declaring the judgment and decree dated 07.02.2001 as ab initio void. Besides, in connection with the declaration that the land in question is in possession of the plaintiff, i.e. Harishchandrasinhji Jadeja, permanent injunction has been prayed for from implementing the judgment and decree dated 07.02.2001. Vide order dated 27.05.2011 below Exh.5, the decree has been stayed till the final disposal of the suit and the plaintiff Page 61 of 67 Uploaded by BINOY B PILLAI(HC00183) on Thu Nov 21 2024 Downloaded on : Sat Dec 14 00:02:33 IST 2024 NEUTRAL CITATION C/FA/2238/2012 IA JUDGMENT DATED: 18/11/2024 undefined Harishchandrasinhji Jadeja was directed not to deal with the land in question. The prayer in the Special Civil Suit no.53 of 2002, is challenge to the decree and so also seeking declaration of the possession qua the land in question.
28. Various issues have been formulated (Exh.27). One of the issues, is whether the plaintiff proves that the defendant nos.1 to 3 in collusion with each other by committing fraud, had obtained the decree dated 07.02.2001 in Civil Suit no.350 of 2000. Issue no.4 is whether the plaintiff proves that the possession of the disputed property is with the plaintiff. Therefore, Court below is seized of the issues, namely, legality and validity of the judgment and decree dated 07.02.2001 and the possession of the plaintiff of the land in question. Following issues in vernacular and free english translation would be thus:
"(1) Whether the plaintiff proves that the defendant nos.1 to 3 have obtained signature of the plaintiff in the agreement to sell dated 07.04.1993 without free consent, by coercion and misinterpretation?
(2) Whether the plaintiff proves that the defendant nos.1 to 3 in collusion with each other and fraudulently has obtained the judgment and decree dated 07.02.2001 in Civil Suit no.350 of 2000?
(3) Whether the plaintiff proves that the power of attorney of the plaintiff has by acceding its authority flowing from the power of attorney has entered into the settlement in the Special Civil Suit no.350 of 2000?
(4) Whether the plaintiff proves that he is in possession of the disputed property?
(5) Whether the defendants prove that the suit is barred by non-joinder of parties.
(6) Whether the defendant no.1 proves that after the judgment and decree in the Civil Suit no.350 of 2000, the plaintiff having accepted the consideration, is binding?
Hence, the Court below is seized of the grievance of Page 62 of 67 Uploaded by BINOY B PILLAI(HC00183) on Thu Nov 21 2024 Downloaded on : Sat Dec 14 00:02:33 IST 2024 NEUTRAL CITATION C/FA/2238/2012 IA JUDGMENT DATED: 18/11/2024 undefined Harischandrasinhji Jadeja and now the heirs. It is sought to be argued by Mr S.N. Soparkar, learned Senior Counsel that the decree dated 07.02.2001 has been obtained fraudulently and in collusion with the power of attorney of Harishchandrasinhji Jadeja; however, the issue of obtaining the decree dated 07.02.2001 fraudulently and in collusion, cannot be gone into as the same, is being examined in Special Civil Suit no.53 of 2002. It has been reported that the suit is at the stage of examining the witnesses and/or parties. The scrutiny in the captioned proceeding is restricted qua the prayer of withdrawal and not the peripheral issues and grievances which are pending determination before the Courts below. Perceptibly, no right can be said to have been vested, much less any findings in favour of Harishchandrasinhji Jadeja, which would get nullified by withdrawal of the suit and hence, the claim of the heirs of Harishchandrasinhji Jadeja about right being affected or nullified, does not deserve to be accepted and is rejected.
29. Adverting to the claim of Kalpesh Patel, undisputedly, the agreements or the understanding between Kalpesh Patel and the applicant - Dolly Patel is of the years 2018 and 2019, which are subsequent to the passing of the restraint order by this Court. Kalpesh Patel took the risk of executing agreements. Except stating that there are agreements in his favour and payment of huge sum towards consideration, has not pointed out anything as to how any right is vested by the judgment and would be affected by the withdrawal. Mere payment of huge consideration is not sufficient. One has to point out what right is vested flowing from the decree and how withdrawal would be prejudicial to him.
30. Notably, there cannot be any right vested or findings recorded in the impugned judgment inasmuch as, the suit is already decided in the year 2012 when Kalpesh Patel was not even in picture. The Page 63 of 67 Uploaded by BINOY B PILLAI(HC00183) on Thu Nov 21 2024 Downloaded on : Sat Dec 14 00:02:33 IST 2024 NEUTRAL CITATION C/FA/2238/2012 IA JUDGMENT DATED: 18/11/2024 undefined claim of Kalpesh Patel is based on the agreements executed in the years 2018 and 2019 which have been revoked and the said agreements, are under consideration in the Special Civil Suit no.41 of 2021 filed by him. It is only when the suit is decided and Kalpesh Patel were to succeed, the issue of his claim would arise. Since Kalpesh Patel has been unable to point out any right, much less any findings in his favour, other issues, namely, registration of the document, nature of agreements, payment made to the applicant - Dolly Patel and prejudice caused to him etc. are not gone into. Contention is also raised that Order XXII Rule 10 of the Code would come into picture and in view of the assignment, the suit may be allowed to be continued. The said contention is fallacious for, Order XXII Rule 10 speaks about the procedure for continuation of the suit by leave of the Court as a result of the assignment, creation etc. during the pendency of the suit. Also, there is no attempt put by Kalpesh Patel seeking leave as per the provisions of Order XXII Rule 10 of the Code. Therefore, the said contention, does not deserve to be accepted and is hereby rejected.
31. In the present case, if at all anybody is benefitted, it is the plaintiff - Kantilal Patel and the applicants, in whose favour the suit has been allowed. The defendants, i.e. the appellants are aggrieved and it cannot be said that by reason of a judgment and decree, any benefit has been enured in their favour. At the cost of repetition, it is required to be noted that Harishchandrasinhji Jadeja and Kalpesh Patel have failed to point out any right vested by way of the findings recorded in the judgment and decree under challenge. Thus, the Civil Applications deserve to be allowed and is accordingly, allowed.
32. While concluding, this Court, would like to place on record the concern about citing voluminous judgments. The issue is withdrawal of the suit at the appellate stage; however, some of the judgments Page 64 of 67 Uploaded by BINOY B PILLAI(HC00183) on Thu Nov 21 2024 Downloaded on : Sat Dec 14 00:02:33 IST 2024 NEUTRAL CITATION C/FA/2238/2012 IA JUDGMENT DATED: 18/11/2024 undefined cited do not deal with the withdrawal of the suit at the appellate stage, but at the stage of the suit itself or withdrawal of the appeal at the appellate stage. The present is the case of withdrawal of the suit at the appellate stage and the relevant judgments, would be only some of them and not all, which have been dealt with and discussed in the preceding paragraphs. It is well recognized principle that circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. Observations must be read in the context in which they appear. With the advent of technology, searching judgments is a click away and therefore, voluminous judgments are being cited by the parties, slightly off the issues or some resulting into duplication thereby, burdening the Court. While the Court is duty-bound to deal with the same, it is necessary that prudence is exercised while citing the judgments, bearing in mind the Court's time.
33. It is noteworthy, that the suit is of the year 2012 which now is sought to be withdrawn by the applicants. The Court below and this Court, have invested substantial time, which has resulted in wastage of public time, which is of considerable importance in the present day scenario. Hence, this Court permits the withdrawal; however, it deems it appropriate to impose cost of Rs.50,000/- each to be paid jointly by the applicants and the respondents to Gujarat State Legal Services Authority within a period of two weeks from today.
34. At this stage, it is required to be noted that this Court, on 25.06.2018 in First Appeal no.2238 of 2012, has passed the following order:
Page 65 of 67 Uploaded by BINOY B PILLAI(HC00183) on Thu Nov 21 2024 Downloaded on : Sat Dec 14 00:02:33 IST 2024NEUTRAL CITATION C/FA/2238/2012 IA JUDGMENT DATED: 18/11/2024 undefined "Heard the learned advocates for the respective parties This appeal together with Letters Patent Appeals No.2111/2009 with 2004/2009 with 2108/2009 shall be listed for final hearing on 19.07.2018.
Mr. Pratik Jasani, learned advocate states that he had intimated the respondent No.1.3 - Chhayaben Kantilal Patel that he is retiring from the matter for his personal reasons. A copy of the letter has been placed on record. Under the circumstances, the respondent No.1.3 - Chhayaben Kantilal Patel shall make necessary arrangements before the next date of hearing failing which, the matter(s) shall be proceeded further ex-parte."
35. Captioned appeals were directed to be heard with Letters Patent Appeals which are in connection with the land in question.
Proceedings under the provisions of the Gujarat Agricultural Lands Ceiling Act, 1960 were subject matter of consideration before this Court. By CAV judgment of even date, the Letters Patent Appeal nos.2004 of 2009 in Special Civil Application no.5174 of 1996 with Letters Patent Appeal no.2108 of 2009 in Special Civil Application no.10235 of 1996 with Letters Patent Appeal no.2111 of 2009 in Special Civil Application no.13065 of 1994, have been decided. Letters Patent Appeal no.2111 of 2009 in Special Civil Application no.13065 of 1994 filed by the State Government has been allowed, while Letters Patent Appeal no.2108 of 2009 in Special Civil Application no.10235 of 1996, has been dismissed, while Letters Patent Appeal no.2111 of 2009 in Special Civil Application no.10235 of 1996, has been disposed of accordingly.
36. For the foregoing reasons, the applicants are permitted to withdraw the Special Civil Suit no.186 of 2010. The suit in question, is disposed as withdrawn. Resultantly, the judgment and decree dated 04.07.2012, so also the captioned appeals, would not survive. First Appeals, are accordingly disposed of.
Page 66 of 67 Uploaded by BINOY B PILLAI(HC00183) on Thu Nov 21 2024 Downloaded on : Sat Dec 14 00:02:33 IST 2024NEUTRAL CITATION C/FA/2238/2012 IA JUDGMENT DATED: 18/11/2024 undefined FURTHER ORDER
37. Mr Salil M. Thakore, learned advocate appearing for Harishchandrasinji Jadeja requests for stay of operation and implementation of the common CAV judgment for a period of four weeks, so as to approach the Apex Court, which request is strongly opposed by Mr Mihir H. Joshi, Ms Trusha K. Patel and Mr Dhaval D. Vyas, learned Senior Counsel on the ground that Special Civil Suit no.53 of 2002 filed by Harishchandrasinhji Jadeja, challenging the decree dated 07.02.2001, has been dismissed and hence, Harischandrasinhji Jadeja, will now have no locus. To which, Mr Salil M. Thakore, learned advocate states the dismissal of the suit, has been kept in abeyance for the appeal period.
38. In view of the above discussion, the request of Mr Salil M. Thakore, learned advocate, is hereby rejected. However, it is clarified that the possession of the land in question, shall be continued with the Court Commissioner for a period of four weeks'.
(SANGEETA K. VISHEN,J) (NISHA M. THAKORE,J) BINOY B PILLAI Page 67 of 67 Uploaded by BINOY B PILLAI(HC00183) on Thu Nov 21 2024 Downloaded on : Sat Dec 14 00:02:33 IST 2024