1 caf482 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.482 OF 2007 IN FIRST APPEAL NO.586 OF 1991 Bhagwati Bhavarlal Jain ...Applicant vs. Madhav Bapurao Sakhare ...Respondent Mr.R.M.Pethe for the applicant Mr.S.G.Deshmukh for the respondent CORAM : A.S.OKA,J. DATE : AUGUST 11, 2011 P.C.: 1 The submissions of the learned counsel for the parties were heard on the earlier date. This is an application for restoration of the appeal which was dismissed for non prosecution. The applicant is the appellant-defendant and the respondent is the original plaintiff. 2 The respondent filed a suit for specific performance of an agreement for sale of the suit property. In the cause title of the suit, the respondent has described himself as the Chief Promoter of the Shri Brahmendraswami Grah Rachana Sanstha which is a proposed society. The case made out by the applicant in the suit is that he along with 15 members proposed to establish the said society by constructing houses for residential 2 caf482 purpose. It is alleged that the respondent was appointed as the Chief Promoter of the proposed society and after negotiations, the suit agreement was executed by the applicant. The Trial Court decreed the suit by passing the decree for specific performance. There was a counter claim made by the applicant. The counter claim was dismissed. 3 The appeal is of the year 1991 which was admitted for final hearing. On 30 th January 2006, the appeal was dismissed as none appeared for the applicant. The present civil application was filed for restoration of the Appeal by setting aside the order dated 30 th January 2006. The said application was allowed on 23 rd March 2007. Again on 22 nd August 2008, appeal came to be dismissed for default as none appeared for the appellant. On a civil application made by the applicant, the subsequent order of dismissal was set aside. On 23 rd August 2008, an application was filed by the respondent for recalling the orders passed on both the restoration applications on the ground the respondent was not served with the notice of the applications. By consent of the parties, orders passed on both the restoration applications were recalled. As a result, only the present application for setting aside the order of dismissal of the Appeal passed on 30 th January 2006 survives and the subsequent application no.2628 of 2008 will not survive. 4 The application is strongly opposed by the respondent by filing an affidavit in reply. The attention of the Court is invited to the interim 3 caf482 order passed by this Court in the appeal and it is submitted that in gross breach of the interim order, applicant has executed transfers. The contention is that this is a case where provisions of rule 11 of Order XXXIX of the Code of Civil Procedure,1908 will be applicable and the application will have to be dismissed in as much as a substantial part of the suit property has been transferred by the applicant in breach of interim order passed in the Appeal. 5 The submission of the learned counsel for the applicant is that the the suit was filed by the respondent in his capacity as the Chief Promoter of the proposed Housing Society. He pointed out that the applicant has settled the dispute with all other members of the proposed society who have expressly consented to the transactions made by the applicant in respect of the suit property. He submitted that the appeal was dismissed in default as the Advocate representing the applicant did not remain present. Civil Application no.2490 of 2011 has been filed by one Vijay Baburao Kanse praying for intervention on the ground that he has been elected as the Chief Promoter in place of the respondent. 6 The application has been strongly opposed by the respondent. It is pointed out that the applicant executed a sale deed dated 20 th October 2003 in respect of the part of the suit property in favour of a third party and has handed over possession of the part of the suit property to the third party. He relied upon another sale deed dated 8 th February 2006 executed by the applicant in respect of a part 4 caf482 of the suit property by way of supplementary sale deed. He pointed out that on 15 th June 2006, the applicant entered into a deed of rectification and again created third party rights. He pointed out that medical certificate on which reliance has been placed is not in the prescribed format. He relied upon the format prescribed by the Rules framed by the Medical Council. His submission is that as the Applicant has created third party rights in breach of the interim order passed by this Court, in fact, the appeal was liable to be dismissed in exercise of power under Rule 11 of Order XXXIX of the said Code. He submitted that in view of the said gross breach committed by the applicant, this Court should not exercise the power of restoration. His submission is that at the time of hearing of both the civil applications for restoration made by the applicant, false statements were made by the applicant that notice of restoration applications was served to the respondent and when the said stand was found to be factually incorrect, he consented for recall of the orders passed on applications for restoration and that is how the present application was restored. He submitted that apart from the fact that the applicant made a false statement on both the occasions, the applicant deliberately allowed the appeal to get dismissed. He submitted that the malafides on the part of the applicant are clear from the fact that a third party has filed Civil Application no.2490 of 2011 for intervention claiming that he is now appointed as the Chief Promoter of the said society. The learned counsel for the respondent has relied upon as many as 16 5 caf482 decisions of the Apex Court in support of his contention that considering the conduct of the Applicant, order of restoration should not be passed. He submitted that no case for restoration is made out. 7 I have carefully considered the submissions. The First Appeal of the year 1991 preferred by the applicant reached the final hearing in the year 2006 and on 30 th January 2006, the appeal was dismissed as none appeared for the applicant. From the Farad Sheet, it appears that the appeal was called out for final hearing on 10 th January 2006 when neither the applicant nor the respondent were present. When the appeal was dismissed on 30 th January 2006, both the applicant and the respondent and their respective Advocates were not present. Even the subsequent order of dismissal dated 22 nd April 2008 notes that both the parties and their Advocates were absent. 8 When the applicant had engaged services of an Advocate to represent him in the appeal, it was not necessary for the applicant to personally remain present when the appeal was fixed for hearing. It must be borne in mind that when the appeal was dismissed, the Advocate for the applicant was not present. The Appeal was dismissed on 30 th January 2006. The present application for restoration was filed in October 2006. The case made out in the application is that the Applicant was not aware of the dismissal of the Appeal. 6 caf482 9 To this application, a medical certificate has been annexed by the applicant recording that the applicant was advised to take rest from 15 th May 2006 to 25 th June 2006. The submission of the learned counsel for the respondent is that the certificate is not in the form prescribed by the Indian Medical Council (Professional conduct,Etiquette and Ethics) Regulations, 2002. The certificate cannot be doubted only on the ground that the medical Practitioner has not used the proper format. Ultimately, it is for the Medical Council of India to take action against the Medical Practitioner on the ground that the certificate is not in the format. The certificate can not become invalid on the said ground. Another submission is based on power under Rule 11 of Order XXXIX of the said Code. This Court has held that power under Rule 11 of Order XXXIX is discretionary. Merely because there is a breach, the Court is not obliged to exercise the said power. It is true that the applicant did execute the three sale documents during the pendency of the Appeal. The case made out in the rejoinder is that the sale deeds were executed with the consent of the other members of the proposed society except the respondent. To the said sale deed dated 20 th October 2003, other members of the society have been shown as confirming parties. Perusal of the impugned Judgment shows that the suit was filed by the respondent in his capacity as the Chief Promoter of the society. The respondent was seeking execution of sale deed on behalf of the society on the basis of the suit agreement for sale. It is not the case of the respondent that the sale deed was to be executed for 7 caf482 his individual benefit. In fact, the agreement for sale appears to have been executed by him in the capacity as a Chief Promoter of the society. Thus, the sale deed was to be executed for the benefit of the society. There is a material on record to show that except for the respondent, other members have consented to the transfer of the property by the applicant. Therefore, this is a case where power under Rule 11 of Order XXXIX of the said Code can not be invoked. 10 As noted above, even the respondent was not present when the appeal was dismissed on both the occasions. After the appeal was dismissed on both the occasions, civil applications were made absolute on the basis of the statement of the applicant that the respondent was served with the notice of the applications. However, the applicant had to agree for setting aside the orders of restoration as the respondent was in fact not served. There is delay in filing the application. There is a decree for specific performance suffered by the applicant. The appeal which was admitted and in which interim relief was granted was dismissed in default as the Advocate for the applicant did not remain present. Therefore, this is a case where the appeal will have to be restored. However, considering the fact that earlier this application and the other application were allowed on the basis of the statement of the applicant which appears to be untrue, the respondent will have to be compensated by ordering the applicant to pay substantial amount by way of costs. The amount of costs is quantified at Rs. 8 caf482 30,000/-. It is also made clear that though the appeal is being restored, interim relief granted in the appeal is not restored with liberty to the applicant to take out a separate application for interim relief. 11 Hence, I pass the following order : i) Civil application no.482 of 2007 is allowed in terms of prayer clauses (a) subject to condition of the applicant paying costs to the respondent in the sum of Rs.30,000/- within a period of four weeks from today. Payment of costs will be a condition precedent. ii)Civil application no.2628 of 2008 does not survive and is disposed of as the Appeal has been restored. iii)It is made clear that interim relief which was operating during the pendency of the appeal is not restored with liberty to the applicant to take out a separate application for interim relief. iv)Civil application no.2490 of 2011 shall be placed for hearing on 26 th September 2011. In the meanwhile, it will be open for the respondent in the appeal to file a reply to the said application. v) Prayer is made for stay of order of restoration. Prayer is rejected. JUDGE