SA/188/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 188 of 2008 With CIVIL APPLICATION No. 9679 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 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 ? ========================================================= KAVASBHAI JAL WYKES - Appellant(s) Versus MUZAFFAR AHMED KAZI & 5 - Defendant(s) ========================================================= Appearance : MR NK MAJMUDAR for Appellant(s) : 1, None for Defendant(s) : 1 - 6. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 03/12/2008 ORAL JUDGMENT 1. The appellant original-defendant No.3 has filed Second Appeal under Section 100 of the Civil SA/188/2008 2/8 JUDGMENT Procedure Code challenging the judgment and order dated 8th April,2008 passed by the learned Presiding Officer,Fast Track Court No.8 at Vadodara in Regular Civil Appeal No.141 of 2005, by which the appeal preferred by the appellant has been dismissed and the judgment and decree dated 3rd October,1996 passed by the learned 4th Joint Civil Judge(SD),Vadodara in Special Civil Suit No.99 of 1988 has been confirmed. 2. Heard Mr.N.K.Majmudar,learned advocate appearing for the appellant and perused the orders and judgments passed by the Courts below. 3. Brief facts giving rise to the present appeal are that the present respondent No.1 filed the suit against the appellant and respondent Nos.2 to 6 for specific performance of the contract, which was decreed in favour of the respondent No.1/original- plaintiff. The appellant and the respondent Nos.2 to 6 are real brothers and sisters and the suit property was the joint ownership property of the appellant and respondent Nos.2 to 6. The appellant and the respondent Nos.2 to 6 had agreed to sell the suit property at Rs.90,000/- to the respondent No.1/original-plaintiff and, therefore, they had executed agreement for sale on 29.7.1983 in favour of SA/188/2008 3/8 JUDGMENT respondent No.1, which was also registered before the Sub-Registrar,Vadodara at Sr. No.4560. At the time of execution of the agreement for sale, respondent No.1 had paid Rs.14,000/- to all the defendants i.e. Rs.86,000/- as an earnest money and the remaining amount of Rs.4000/- was to be paid at the time of execution of registered sale deed. 4. The respondent No.2 to 6 have agreed to execute the sale deed in favour of the respondent No.1 and in fact they have also executed the sale deed. However, the present appellant did not agree to it and hence, the above-referred Special Civil Suit was filed before the trial Court. 5. The trial Court has decreed the suit in favour of respondent No.1 after scrutinizing the evidence on record and also giving sufficient opportunity of being heard to the other side. 6. Being aggrieved by the judgment and decree passed by the trial Court, the present appellant has filed an appeal before the First Appellate Court and the First Appellate Court has also not found any irregularities in the conclusions arrived at by the trial Court. The First Appellate Court was of the view that the trial Court has rightly decreed the SA/188/2008 4/8 JUDGMENT suit and no error was committed and hence, the judgment and decree passed by the trial Court was confirmed. 7. It is this order of the First Appellate Court which is under challenge in the present Second Appeal. 8. Mr.N.K.Majmudar, learned advocate appearing for the appellant has submitted that the suit filed by the respondent No.1/original-plaintiff was barred by law of limitation and, therefore, the suit ought to have been rejected only on the ground of limitation. He has further submitted that both the Courts below have failed to appreciate this aspect and passed the judgment and order in favour of the respondent No.1. He further submitted that the Banakhat dated 29th July, 1983 in respect of the suit property clearly shows that the possession of the second floor of the suit property was with one Gangaben and, therefore, it clearly transpires that no physical possession of the suit property was handed over to the present respondent No.1-original plaintiff. However, both the Courts below have failed to appreciate the aforesaid aspect and passed the orders in favour of the present respondent No.1. He has further submitted that SA/188/2008 5/8 JUDGMENT respondent No.1-original plaintiff was handed over the keys of the premises in question. He was a friend of the appellant and taking disadvantage of the good faith of appellant, changed the keys of the suit property and illegally rented out the suit for commercial purposes. He has further submitted that the appellant was not given any opportunity to cross- examine the respondent No.1 and without affording an opportunity of being heard to the appellant, the impugned judgment and decree was passed by the trial Court and the First Appellate Court has failed to appreciate this aspect while deciding the appeal. He has further submitted that original-defendant Nos.1,2 and 6 had not chosen to appear before the trial Court and the First Appellate Court has failed to appreciate this aspect while deciding the appeal. However, on the basis of Ekararnama (Declaration) below Exhs.32 and 33, the trial Court had jumped to the conclusion that they were agreeable for execution of the sale deed in favour of the present respondent No.1-original plaintiff. He, has, therefore, submitted that both the Courts below have erred in coming to the conclusion that the suit was not barred by limitation in as much as the so called agreement to sell was executed as far back in the year 1988 SA/188/2008 6/8 JUDGMENT i.e. after a lapse of limitation period. He,therefore,submitted that this appeal required an admission and following substantial questions of law arise out of the judgment and order of the First Appellate Court:- “1. Whether both the courts below have erred in coming to the conclusion that the suit was not barred by limitation? 2. Whether both the courts below have erred in coming to the conclusion that the present respondent No.1-original plaintiff was entitled to get the Sale Deed executed in his favour in respect of the suit property from present appellant-original defendant No.3 in the aforesaid peculiar facts and circumstances of the case? 3. Whether the Honourable First Appellate Court has erred in coming to the conclusion that present appellant-original defendant no.3 was given sufficient opportunity in the suit proceedings by the Honourable Trial Court?” 9. Having heard Mr.N.K.Majmudar, learned advocate appearing for the appellant and having gone through the judgments and orders passed by both the Courts below, the Court is of the view that both the Courts have taken concurrent view, after proper appreciation of evidence and documents produced before them and there is no irregularity,illegality or infirmity in SA/188/2008 7/8 JUDGMENT the orders and judgments passed by the Courts below and no question of law much less any substantial question of law arises out of the orders of the Courts below. The Trial Court as well as First Appellate Court have discussed both the issues regarding limitation as well as the right of the plaintiff/respondent No.1 to ask for decree for specific performance and came to the right conclusion. The order passed by the First Appellate Court while dealing with both these issues is very elaborate and all the aspects of the matters were threadbare discussed in the said order. Proper explanations are also given by the Courts below as to why the suit is not barred by limitation and also as to why there is no ground to challenge the order and decree. This Court is in complete agreement with the reasoning given by the the trial Court as well as the Appellate Court and no interference is required in the matter. 10. This Second Appeal is, therefore, summarily dismissed. Since the appeal is dismissed, Civil Application doe not survive and it is accordingly rejected. SA/188/2008 8/8 JUDGMENT (K.A.Puj, J.) sudhir