1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION CIVIL REVISION APPLICATION NO.140 OF 2009 Shilkumar @ Shantinath B. Patil ...Applicant. v. Sau. Kamal A. Chowgule ...Respondent. Mr. Amit B. Borkar, adv. For the Applicant. Mr.Rahul Kulkarni, adv. For the Respondent. CORAM : J.H. BHATIA, J. DATED : APRIL 20, 2010 JUDGMENT: 1 With consent of the learned counsel for the parties, matter is taken up for final hearing and disposal immediately. 2 Respondent filed S.C. Suit No.701/97 for specific performance of a contract for sale of agricultural land for a consideration of Rs.1,50,000/-. According to her, agreement had taken place on 2.4.95 and she had also paid an amount of Rs.80,000/- as part of the consideration amount and she was also put in possession on the same day. Balance amount of Rs.70,000/- was to be paid at the time of registration of the sale deed within three months from the date of the agreement. According to her, defendant had failed to execute sale deed as per the terms of the contract, therefore, she sought decree for specific performance of the contract and in alternative, she claimed refund of the 2 amount of Rs.80,000/- which was paid as earnest money with interest thereon. Defendant appeared and filed written statement and raised objection about the admissibility of the agreement for sale on the ground that it was not sufficiently stamped in view of the provisions of Article 25 of the Bombay Stamps Act. After hearing the parties, the learned trial Court passed the order on 8.3.2000 to impound the agreement for sale and directing the plaintiff to pay deficit stamp duty with penalty amounting to Rs.48,950/- within 15 days. On 30.4.2001, the trial Court dismissed the suit on the ground that in spite of the order of 8th March, 2000, plaintiff had failed to make the payment of deficit stamp duty and penalty thereon in spite of having taken sufficient chances. Not only this after that order whenever the matter was on board, plaintiff and her counsel were absent. In such circumstances, suit came to be dismissed for want of prosecution as well as for want of compliance of the order passed on 8th March, 2000. 3 In September, 2004, plaintiff filed Miscellaneous Civil Application No.49 of 2005 for restoration of the suit under Order 9 Rule 9 of the C.P.C. Reply to that application was filed on 13.1.2006 by the defendant. He raised objections about the delay. He also pointed out that on 19.8.2004 he had already sold away the property to one Shivaji 3 Jalpure and others under the registered sale deed and he had also given possession of the land to the purchaser and, therefore, decree for specific performance of the contract could not be passed in favour of the plaintiff in the given circumstances. He also raised objections about the reasons for the delay. After hearing the parties, the learned trial Court passed the impugned order dated 3.10.2007 allowing the application and restoring the suit to the file. That order is challenged in the present revision application. 4 Record reveals that according to the plaintiff, she was aged about 62 years and her husband was not keeping good health and her sons were simpleton and, therefore, she could not contact her advocate and file the application for restoration earlier. The trial Court condoned the delay and observed that the suit was not fixed for hearing on 30.4.2001 and, therefore, it could not have been dismissed in default and further it could also not be dismissed for non payment of the stamp duty. 5 On perusal of the record, it becomes clear that the learned counsel for the respondent placed reliance upon V. Bhagat v. M/s. Usha Bhagat AIR 1987 Delhi 74 in support of his contention that the suit could not be dismissed and that there was no necessity to even hear the defendant on the point of restoration. On perusal of the judgment in 4 V.Bhagat (Supra) , it appears that the defendant had never appeared and was not contesting the suit in absence of the plaintiff, suit was dismissed in default and when he made an application for restoration, according to the Delhi High Court, it was not even necessary to issue notice to the defendant because he was not contesting party. In my considered opinion, the said authority is not at all applicable to the facts of the present case. In the present case, defendant was contesting the suit and had filed written statement. It was pointed out by the defendant that in view of the provisions of Article 25 of the Bombay Stamps Act, document of agreement for sale was not sufficiently stamped and, therefore, it could not be acted upon unless the necessary stamp duty with penalty was paid. Therefore, after hearing the parties , the Trial Court passed the order dated 8.3.2000 impounding the document and the Court also directed the plaintiff to deposit deficit stamp duty with penalty amounting to Rs.48,950/-. That amount was to be paid within 15 days. However, the record reveals that the amount was not paid. Order of the dismissal was passed on 30.4.2001, i.e., more than 13 months after the period to deposit stamp duty and penalty had expired. The said order reveals that the repeatedly thereafter adjournments were granted and chances were given to deposit the money but to no effect. Not only that 5 on number of dates thereafter neither the plaintiff nor her counsel appeared which shows that they were not interested in prosecuting the suit. If the defendant did not appear in the matter when it was fixed for hearing, the Court would be justified in dismissing the suit under Order 9 Rule 8 of the C.P.C. The trial Court observed in the impugned order that the matter was not fixed for hearing and, therefore, it could not have been dismissed. When the document was impounded, further proceeding in the matter could take place only after the necessary stamp duty and penalty were deposited. If the amount would have been deposited then the Court would consider the pleadings of the parties and the documents for the purpose of framing issues. Even before framing the issues, the Court could hear the parties and examine under Order 10 of the C.P.C. to ascertain whether allegations in the pleadings are admitted or denied. Besides that there could also be stage of admissions under Order 12 of the C.P.C. for the purpose of accepting documents on the basis of admissions. For this also there could be some kind of hearing. After that there would come stage of settlement of issues under Order 14. Hearing within the meaning of Order 9 Rule 8 does not mean only recording of evidence of the parties. After the issues are settled , it covers any type of hearing which is possible under the different provisions of the C.P.C. In 6 the present case as noted above, plaintiff not only failed to comply with the order dated 8.3.2000 but also remained absent on number of dates. Besides provisions of the Order 9 Rule 8, even Order 39 Rule 11 as amended by the Mumbai High Court could be invoked for dismissal of the suit. Order 39 deals with temporary injunction and other interlocutory orders. Order to deposit the stamp duty could come within the definition of interlocutory orders. Rule 11 provides that where the Court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding and such party commits any default in respect of or contravenes such order,, Court may dismiss suit or proceeding. Plaintiff had failed to comply with the order of the Court about depositing the stamp duty and penalty thereon. In view of this, plaintiff was not in a position to proceed with her claim for specific performance of the contract based on that document, which was impounded and in respect of which necessary stamp duty and penalty was not paid in spite of direction given by the Court. In such circumstances, the only consequence could be dismissal of the suit. In view of these circumstances, it appears that the trial Court was not correct in observing that the order dated 30.4.2001 dismissal of the suit was wrong. If the plaintiff was aggrieved by that order being wrong. 7 That order could be challenged by way of appeal . The successor of the trial Court Judge, who had dismissed the suit, could not say that the order passed by his predecessor was wrong. He could have dealt with the application for restoration only on the grounds given for the delay and the circumstances in which the plaintiff could not appear earlier. 6 In view of the facts of the case, it appears that no valid reasons for non-compliance of the order dated 8.3.2000 were given nor any valid reasons were given for delay of more than 3 and half years in filing the application for restoration. The trial Court also did not consider the fact that before the application for restoration was moved by the plaintiff, defendant had already sold away the suit property under registered sale deed dated 19.8.2004 and had also put the purchaser in possession of the same. When that transaction took place, no suit was pending in the Court and, therefore, purchaser was bonafide purchaser for consideration and in such circumstances, the trial Court could not have passed any decree for specific performance of the contract. Restoration of the suit itself would create lot of complications and would have unnecessarily dragged the bonafide purchaser into litigation without any fault on his part. Therefore, I find that trial Court was not justified in passing the impugned order for restoration of the suit. 8 Therefore, the impugned order appears to be illegal and liable to be set aside. It may be noted that the learned counsel for the revision applicant/defendant made a statement before the hearing of this revision application and makes a statement even at this stage that the defendant is willing to refund an amount of Rs.80,000/- with interest @ 10% p.a. However, the learned counsel for the plaintiff/respondent made a statement that he has instructions not to accept this offer. 7 For the aforesaid reasons, Revision Application allowed and the impugned order is hereby set aside. 8 The learned counsel for the respondent seeks stay to this order. As no order of any status-quo or injunction is in force at present, no purpose will be served by giving any stay to this order, therefore, the request stands rejected. (J.H. BHATIA,J.)