1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.692 OF 2007 WITH CIVIL APPLICATION NO.1254 OF 2007 Shri Bajirao Jayram Saste : Appellant versus Vyankat Hari Sapkal (deceased by his heirs) 1a. Shri Mansing Vyankat Sapkal & ors. : Respondents. Shri.Uday Warunjikar for the Appellant. Shri V.S.Talkute for Respondent Nos.1a to 1e. CORAM : R.M.SAVANT, J. DATED : September 23, 2008 P.C. 1. This Second Appeal take exception to the Judgment and Decree dated 03/07/2007 passed by the Principal District Judge, Satara by which the Judgment and Decree dated 01/04/1999 passed by the Civil Judge, Jr.Division, Koregaon came to be confirmed. 2 2. In so far as the decree as regards the rejection of the claim of the Plaintiff for specific performance is concerned, the jurisdiction of this Court under Section 100 of the Code of Civil Procedure is not warranted and no substantial question of law arises for consideration in respect of the said issue. 3. However, in respect of the decree for possession in favour of the Respondents is concerned, the substantial questions which arise are as under :- 1] Whether the Lower Appellate Court ought to have remanded the matter to the trial Court for the purpose of deciding the issues raised after amendment in the written statement filed by the Respondent, more particularly the issue of possession, instead of deciding the same by the Appellate Court ? and 3 2] Whether the Lower Appellate Court was justified in allowing the Application below Exhibit 64 praying amendment in the written statement at the appellate stage which was moved after a period of 18 years and consequently, whether in the light of the said irregularity interference of this Court under Section 100 of the CPC is required ? 4. Considering the substantial questions of law that have arisen, the Second Appeal is heard finally at the stage of admission by consent of the learned counsel for the parties. 5. The Appellant herein is the original Plaintiff who filed Regular Civil Suit No.235 of 1989 for specific performance of an agreement of sale dated 11/04/1980 executed by the deceased Defendant in favour of the Plaintiff and the subsequent denial on the part of the Defendants to execute the sale deed. The subject matter of the said agreement for sale is land bearing Gat No.330 which is more particularly described in the plaint. The said land was owned by 4 the deceased Defendant and it had come to him on account of the proceedings under Section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948. The present defendants are the legal heirs of the deceased Defendant. It is the case of the Plaintiffs that by an Agreement dated 11/04/1980 the Defendant had agreed to sell the said land in favour of the Plaintiff for legal necessity for a consideration of Rs.8,750/- out of which the Plaintiff had paid an amount of Rs.4,375/- and in part performance of the said Agreement, he was put in possession of the said land. One of the terms of the said Agreement was that the Defendant would obtain the required permission from the Collector to sell the said land within one month from the date of the said Agreement. It is the case of the Plaintiff that the Defendant did not take any steps to obtain the said permission though the Plaintiff was always ready and willing to perform his part of the Agreement. The Plaintiff was, therefore, constrained to issue a legal notice dated 29/11/1989 calling upon the Defendant to perform his part of the Agreement. The Plaintiff, receiving no response from the Defendant, had filed the said suit. In the mean time the Defendant 5 died and his heirs were brought on record. 6. It appears that initially no written statement was filed on behalf of the Defendants and in view thereof the suit came to be decreed exparte on 5/10/1990. 7. Aggrieved by the said decree, the Defendants filed Regular Civil Appeal no.470 of 1990 and thereafter the Defendants, by virtue of the orders passed in the said Appeal whereby the Lower Appellate Court remanded the said suit back to the trial Court, were permitted to file their written statement and, accordingly they filed their written statement. 8. On remand, the parties led their evidence. It came in the evidence that the Defendants had applied for seeking permission to sell the said land, but the Collector had rejected the same in the year 1985. Since the performance of the Agreement hinged upon the said permission, the trial Court, on the basis that there was no chance of 6 getting permission in future by virtue of the letter of the Collector Exhibit 68, dismissed the said suit in so far as grant of specific performance is concerned. However, the trial Court by its Judgment and Decree dated 01/04/1999 directed vacant possession of the suit land to be handed over to the Defendants on their depositing the amount of Rs.4,375/- paid by the Plaintiff and required court fees in the Court on or before 06/06/1999. 9. Aggrieved by the Judgment and Decree dated 01/04/1999, the Plaintiff filed Regular Civil Appeal No.113 of 1999 impugning the refusal of specific performance of Agreement to him as well as the direction to hand over the possession of the suit land to the Defendants by the trial Court. 10. In the said Appeal, an Application was moved by the Defendants for amendment of the written statement which Application came to be allowed by the Lower Appellate Court by its order dated 23/03/2007 passed on Exhibit 64 and, by virtue of the said order, the 7 Defendants carried out the amendment to the written statement and claimed possession of the suit land. The Defendants also paid the court fees. In view of the fact that the parties did not desire to lead oral evidence and filed purshis to the said effect, the Lower Appellate court considered the impugned Decree passed by the trial Court on merits and confirmed the decree in so far as refusal of the specific performance was concerned as also the decree for handing over the possession of the suit land to the Defendant. 11. The Lower Appellate court, therefore, confirmed the findings of the trial Court in respect of both the Issues. In so far as refusal of specific performance of the said Agreement is concerned, the Lower Appellate Court came to a conclusion that the Agreement is not enforceable on account of the refusal of the revenue authorities to grant permission to sell the suit land. The Lower Appellate court, however, in so far as the decree for possession of the suit land in favour of the Defendants is concerned, confirmed the finding of the trial Court and held that the Defendants would be entitled to get back 8 the possession of the suit land from the Plaintiff. 12. On behalf of the Appellant i.e. the original Plaintiff, the decree on both the aspects, i.e. as regards the specific performance and as regards the possession, is sought to be assailed. It is sought to be contended on behalf of the Appellant that the Lower Appellate Court without any justification had held that the Agreement was not enforceable. The learned counsel for the Appellant submitted that there are absolutely no findings recorded by the Lower Appellate Court while coming to the said conclusion. In so far as the decree for possession is concerned, it is submitted by the learned counsel for the Appellate that the said issue has been dealt with by both the Courts below in a very perfunctory manner. It is submitted that though there was no counter claim filed in the trial Court, the trial Court deemed it fit to grant the relief of possession to the Defendants and in so far as Lower Appellate Court is concerned, it is submitted by the learned counsel for the Appellant that, it has not dealt with the various issues raised by the Appellant/Plaintiff as regards the relief 9 claimed in the counter claim. 13. Per contra, it is contended on behalf of the Respondents/Defendants that so far as refusal of specific performance is concerned, since the revenue authorities refused to grant permission for selling the suit land, which is mandatory required by the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, the relief of specific performance of the said Agreement could not be granted. In so far as the decree for possession is concerned, it is submitted by the learned counsel that though there was no counter claim, there is specific averment in the written statement to the effect that since permission has not been granted for sale of the suit land, the possession of the said should be handed over back to the Defendants. It is further contended that pursuant to the amendment carried out to the written statement, a counter claim has been made in the said suit, and the court fees thereon have also been paid and, therefore, the defect which was in the trial Court has been rectified. The learned counsel for the Respondents, therefore, submitted that 10 no interference is called for even in the decree for possession passed by the both the Courts below. 14. Having considered the rival contentions and having considered the findings recorded by both the Courts below, in my view, the findings recorded by the Courts below as regards dis- entitlement of the Plaintiff for the decree of specific performance, for the reason that the Collector had refused to grant permission for sale of the suit land cannot be faulted with. Both the Courts below, after taking into account the fact that the revenue authorities had refused permission for the sale of the suit land and, since that was the condition on which the performance of the said agreement hinged, the decree in so far as the said aspect is concerned, in my view, calls for no interference. 15. Coming to the aspect of decree for possession granted in favour of the Defendants, it would be significant to note that though there was no counter claim filed by the Defendants in the trial Court, 11 the trial Court had passed a decree for possession in favour of the Defendants. The Defendants thereafter had filed the Application (Exhibit 64) for amendment of the written statement in the Regular Civil Appeal No.113 of 1999 filed by the Appellant herein. The said Application came to be allowed and thereby the Defendants were allowed to amend the written statement so as to incorporate the counter claim. In my view, the order dated 23/03/2007 allowing the Defendants to amend the written statement cannot be faulted with. Considering the well settled principles applicable whilst considering an application for amendment of pleadings, it is not as if the Plaintiff was taken by surprise or a new case was made out by the Defendants in the said Counter Claim, the averments in respect of claiming possession were there in the original written statement also. What was sought to be done was merely seeking a relief on the basis of the said averments as were in the original written statement. However, the fact remains that the Lower Appellate Court has very brusquely dealt with the issue of possession as contained in the written statement. A reading of the impugned order passed by the 12 Lower Appellate Court does not indicate that the various grounds urged by the Plaintiff in opposing the said counter claim have been considered. The ground of limitation, if taken by the Plaintiff, was a ground germane to the consideration of the reliefs sought by the Defendants. The Lower Appellate Court, in my view, ought to have remanded the matter back to the trial Court so that the said grounds raised by the Plaintiff would have been considered and then the trial Court could have determined whether the decree for possession in favour of the Defendants as prayed in the counter claim could have been granted. Since the said issue goes to the very root of the substantial questions of law raised in the above Second Appeal, in my view, it would be just and proper to remand the matter back to the trial Court only in so far as the said Issue of decree for possession claimed by the Defendants is concerned. 16. As indicated above, the decree in so far as refusal of specific performance to the Appellant as regards the said Agreement is concerned, calls for no interference and is confirmed. The trial 13 Court, on remand, to give proper opportunity to both the parties and thereafter to decide the said Issue of claim of possession within a period of four months from the date. The parties to appear before the trial Court on 13/10/2008. The above Second Appeal is accordingly allowed to the extent mentioned hereinabove. In view of disposal of the above Second Appeal, the Civil Application No.1254 of 2007 does not survive and the same is disposed of as such. [R.M.SAVANT, J]