SCA/810720/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8107 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SABBIRBHAI ABDULHUSSEN MODY & 1 - Petitioner(s) Versus INDRAJITSINH BHAGWATSINH RATHOD & 3 - Respondent(s) ========================================================= Appearance : MR MEHUL S SHAH for Petitioner(s) : 1 - 2.MR SURESH M SHAH for Petitioner(s) : 1 - 2. MR NIKHIL S KARIEL for Respondent(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 23/09/2008 ORAL JUDGMENT 1. RULE. Learned advocate Mr Nikhil Kariel for the respondents waives service of Rule. SCA/810720/2008 2/8 JUDGMENT 2. Petitioners are the original plaintiffs. They have instituted Special Civil Suit No. 69 of 2007 before the learned Principal Senior Civil Judge, Bhuj. Issue pertains to dispute between the parties with respect to certain immovable properties which we may refer to as the “suit property”. The petitioners–plaintiffs had agreed to purchase the said suit property from the respondents–original defendants. Apparently, before the Civil Court, the defendants contended that they always were and are ready and willing to perform their part of the contract, and if the plaintiffs' act according to the terms of the agreement, defendants have no hesitation in transferring the suit land in favour of the plaintiffs. 3. It appears that between the plaintiffs and the defendants, disputes arose with respect to procedure for executing the sale deed. As per the defendants, the plaintiffs had not been prepared to make full payment of the purchase price of the suit land and were, therefore, raising frivolous objections. Be that as it may, it appears that the defendants filed applications Exhs.136 and 137 before the Trial Court. In the application Exh.136 filed on 16.05.2008, the defendants contended that the plaintiffs have not acted as per the Court's order, therefore, the defendants be permitted to reclaim the original documents pertaining to the SCA/810720/2008 3/8 JUDGMENT suit land. In application Exh.137; also filed on 16.05.2008, the defendants stated that since the plaintiffs had not acted as per the direction of the Court, the original agreement to sale stands cancelled and the original documents be returned to the defendants. It is not in dispute that the learned Judge passed the impugned order dated 16.05.2008 commonly disposing of the applications Exhs.136 and 137 and held that the plaintiffs are not ready and willing to perform their part of the agreement and they, therefore, are not entitled to order of specific performance and the agreement to sale, therefore, stands cancelled. He, therefore, found that the original documents pertaining to the suit land be returned to the defendants. 4. On 10.06.2008, the learned Single Judge of this Court had passed the following order:- “Mr.Nikhil Kariel appears on behalf of the caveator. Mr.Shah for the petitioner submitted that the applications Exh.136 and 137 were tendered on 16th May, 2008 and the orders thereon came to be passed on the same day i.e. on 16th May, 2008 but without hearing the present petitioners. Mr.Kariel has opposed the submission that the orders were passed without hearing the present petitioners. In his submission, the petitioners' SCA/810720/2008 4/8 JUDGMENT representative, though present in the Court at earlier point of time, did not remain present at the time the application was taken up for hearing and the order was passed. Be that as it may, the facts remain that the applications were tendered on 16th May, 2008 and the order came to be passed on the same day. The petitioners herein could have been given an opportunity to file their objections and of being heard before passing the said order. However, unfortunately, the order seems to have been already acted upon inasmuch as the trial Court appears to have returned the documents pursuant to the order dated 16th May, 2008. Not only this but subsequently the respondent, as per the submissions made by Mr.Kariel today, has already parted with part of the suit land on 6th June, 2008 i.e. about 22 acres out of total 97 acres of suit land. In view of the facts and circumstances which now obtain on record of the present petition and particularly after the order dated 16th May, 2008, the records and proceedings of the Special Civil Suit No.66/2008 and particularly the record relating to Exhibits 131, 132, 136, 137, 139 and 140 be called for so as to reach this Court on or before 25th June, 2008. Notice returnable on 25th June, 2008. Mr.Kariel waives notice on behalf of the respondents. The respondents will not further alienate, in any manner i.e. by way of sale or otherwise, the balance suit land until 25th June, 2008.” SCA/810720/2008 5/8 JUDGMENT 5. Basic facts are not in dispute. It is not in dispute that applications Exhs.136 and 137 were filed by the defendants on 16.05.2008. It is also not in dispute that copies thereof were not served on the plaintiffs. It is also not in dispute that both these applications came to be granted by the learned Judge by the impugned common order dated 16.05.2008. Thus, admittedly and quite surprisingly, applications Exhs. 136 and 137 came to be filed on 16.05.2008, came to be entertained on the same day, came to be granted also on the same day, without even copies thereof being served on the plaintiffs. No special reasons are forthcoming in the impugned order why the applications should have been considered with such undue urgency. If the defendants were justified in contending before the Court that the plaintiffs by their conduct had demonstrated that they are not ready and willing to perform their part of the contract and had thereby rendered themselves ineligible to seek specific performance of the contract, it was always open for the learned Judge to come to such a conclusion after giving proper opportunity to both the sides. Such conclusions could not have been arrived at unilaterally without any opportunity to the plaintiffs and in any case, in such hot haste. Effectively by the said order dated 16.05.2008, the learned Judge rendered the suit of the plaintiffs infructuous. SCA/810720/2008 6/8 JUDGMENT The learned Judge concluded against the plaintiffs that they are not willing to perform their part of contract. The learned Judge, therefore, held that the plaintiffs are not entitled to seek specific performance of the contract. Whatever be the conduct of the plaintiffs, they were entitled to fair hearing before such conclusions could be drawn against them. From the order, it appears that the learned Judge waited through the day for the advocate of the plaintiffs or the plaintiffs themselves. Without any prior intimation or service of copies of the applications, it is difficult to understand how the learned Judge expected the plaintiffs or their advocate to appear and oppose the applications. In any case, what baffles me the most is that there was virtually no reason for the learned Judge to proceed on those applications peremptorily without even waiting for a day's time being granted to the plaintiffs and in fact without even copies of such applications being served on the plaintiffs. The entire procedure adopted lacks transparency. It is unfortunate that such conclusions of far reaching effect were arrived at without giving any opportunity whatsoever to the plaintiffs to oppose the prayers made in the applications. Curiously in the applications Exhs. 136 and 137, it was not even the prayers of the defendants that the Court should hold that the plaintiffs are not entitled to seek SCA/810720/2008 7/8 JUDGMENT specific performance of the contract. The learned Judge travelled beyond the prayers made in the applications Exhs. 136 and 137 and granted prayers which were not even made therein. 6. In view of the above discussion, submission of the counsel for the respondents that on account of their conduct, the petitioners are not entitled to any relief in the present proceedings cannot be accepted. If by their conduct, the plaintiffs had shown their unwillingness to perform their side of the contract, the learned Judge could have passed appropriate orders after hearing the plaintiffs but not before. 7. Under the circumstances, I have no hesitation in striking down the impugned order dated 16.05.2008. The same is, therefore, set aside. As recorded by the learned Single Judge of this Court in the order dated 10.06.2008, it is the case of the respondents herein – original defendants that in the meantime, they have entered into certain further transaction. It would be open for the petitioners to take redressal in this regard in accordance with law. 8. In the result, the petition is allowed with cost of Rs.10,000/- (Rupees ten thousand only). SCA/810720/2008 8/8 JUDGMENT Rule is made absolute accordingly. Writ of this order shall be sent promptly. (Akil Kureshi, J.) mrpandya*