AO 45-16J.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER NO.: 45 OF 2016
Purushottam Narayan Mahajan
Aged about 79 years, Occ.: Retired life
R/o Mahajan Wadi, Telhara
Tq. Telhara, District-Akola. ....... APPELLANT
...V E R S U S...
1] Sanjay Omprakash Bajoriya
Aged about 41 years, Occ.: Business
R/o Murtizapur Road, Akola
Tq. And Distt. Akola.
2] Viplove Gopikisanji Bajoriya
Aged about 31 years, Occ.: Business
R/o Murtizapur Road, Akola. ...... RESPONDENTS
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Shri. K. P. Mahalle, Advocate for Appellant.
Shri. M. G. Sarda, Advocate for Respondents
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CORAM : DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.
DATE : 28 th
JUNE, 2017.
ORAL JUDGMENT
The only issue raised for consideration in this appeal is whether the trial Court, having found that the order passed by it was not correct, can rectify the said error and set aside its own order?
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AO 45-16J.odt 2 2] In order to appreciate the rival submissions advanced by both the parties on this issue, it can be stated that this appeal is directed against the order dated 25.8.2015 passed by Civil Judge, Senior Division, Akola in M.J.C. No. 937/2014. The said application was filed by the plaintiff seeking restoration of the suit under Order-XXXIX Rule-11(2) of the Code of Civil Procedure. The said suit bearing No. 51/2014 was filed by appellant against the respondents for specific performance of the contract on the basis of an agreement to sale dated 22.11.2012. By the said agreement, the defendant had agreed to sell 36R portion of the agricultural land out of survey No.64-C, situated at village Gadegaon, Taluka and District Akola for consideration of Rs.1,05,00,000. As per the term and condition of said agreement of sale, the land was to be measured afresh by the respondent- defendant through Government measurer and the possession was to be handed over by executing sale-deed for total consideration of Rs.79,00,000/- on or before 21.10.2013. As per the agreement, the earnest amount of Rs.26,00,000/- was already paid. As the defendant did not get the land measured, the sale-deed could not be executed and hence, the plaintiff filed suit for specific performance of the contract showing his readiness and willingness ::: Uploaded on - 05/07/2017 ::: Downloaded on - 28/08/2017 08:17:23 ::: AO 45-16J.odt 3 to perform his part of the agreement.
3] The defendant appeared in the suit and filed application at Exh.13 showing his willingness to get the land measured afresh by the government measurer and to file a map within 15 days. He also showed his willingness to perform his part of contract i.e. to execute the sale-deed provided the plaintiff deposits the balance amount of consideration within 15 days after the measurement map was filed on record. The said application was decided by the trial Court by its order on 12.8.2014, thereby directing the defendant to measure the land afresh through Government measurer and file the map within 15 days. The plaintiff was directed to keep ready the outstanding amount for depositing in the Court on the day when defendant submits the map.
4] Accordingly, as per the defendant, he got the land measured and filed map in the Court. However, as plaintiff failed to deposit the outstanding amount of consideration in the Court, on the application of defendant filed under Order XXXIX Rule-11, of C.P.C., the trial Court vide its order dated 7.10.2014, dismissed ::: Uploaded on - 05/07/2017 ::: Downloaded on - 28/08/2017 08:17:23 ::: AO 45-16J.odt 4 the suit for default, in pursuance of the provision of Order-XXXIX Rule-11 of the Code of Civil Procedure by observing that the plaintiff could have challenged order below Exh.13 by filing appeal, if he had any grievance against the same or he could have applied for modification of the said order. The plaintiff had not done either of it. Hence, it was necessary to dismiss the suit for non-compliance of the order of the Court.
5] Subsequent thereto, this application came to be filed by the plaintiff, bearing M.J.C. No. 937/2014, seeking restoration of the suit under Order-XXXIX Rule-11(2) of the Code of Civil Procedure. This application came to be resisted by the defendant, contending inter-alia that unless the order of the Court was complied with, as required under Order-XXXIX Rule-11(2) of the Code of Civil Procedure, the application filed by the plaintiff for restoration cannot be entertained.
6] The trial Court, however, took note of the fact that though the land which was agreed to be sold was survey no. 64-C, the map of measurement which was filed on record by the defendant was pertaining to survey no. 64/A-3. Moreover, the ::: Uploaded on - 05/07/2017 ::: Downloaded on - 28/08/2017 08:17:23 ::: AO 45-16J.odt 5 said map showed that defendant was in possession of only 35R land whereas, he has agreed to sell to the plaintiff 36 R. land. The learned trial Court found that as these facts were not brought to its notice when it passed the order of dismissing the suit under Order-XXXIX Rule-11 of C.P.C. for non-compliance of the order. Learned trial Court held that the order of dismissing the suit was therefore an error which needs to be rectified and aggrieved party should not be dragged to file revision and appeal before the superior Court. Accordingly, vide its impugned order, learned trial Court restored the suit to its original stage, to be decided on merits, by imposing the same conditions which were imposed earlier, while passing the order below Exh.13. The restoration was allowed subject to costs of Rs.10,000/-.
7] This order of the trial Court is the subject matter of the appeal. According to learned counsel for the appellant- defendant, on the first day of appearance in the Court, the defendant has shown his readiness and willingness to perform his part of the contract. He also agreed to get the suit land measured through Government measurer. Accordingly, he filed the application at Exh.13, directing the plaintiff to deposit the balance ::: Uploaded on - 05/07/2017 ::: Downloaded on - 28/08/2017 08:17:23 ::: AO 45-16J.odt 6 amount of consideration and showing his willingness to execute the sale-deed within 15 days of deposit of balance consideration. Plaintiff vide his reply agreed to pay balance consideration amount within 15 days after filing of measurement sheet by the defendant. Accordingly, trial court passed order below Exh.13. However, though defendant got measured the suit land and filed measurement sheet, plaintiff failed to pay or deposit the balance amount of consideration. Hence, on the application of defendant, the trial Court dismissed the suit under Order-XXXIX Rule-11 of the Code of Civil Procedure.
8] According to learned counsel for appellant-defendant, therefore, trial Court has committed a grave error in setting aside the order of dismissal of the suit and restoring the suit, that too, without the plaintiff making any compliance with the order which was passed below Exh.13 directing the plaintiff to deposit the outstanding amount of consideration within 15 days from the measurement map produced in the case.
9] Per contra, learned counsel for respondent-plaintiff has supported the order of the trial Court by pointing out that ::: Uploaded on - 05/07/2017 ::: Downloaded on - 28/08/2017 08:17:23 ::: AO 45-16J.odt 7 there was no such order passed by the trial Court of directing the plaintiff to deposit the outstanding amount of consideration. As per the said order, plaintiff was only directed to keep ready outstanding amount for depositing in the Court. Further, it is submitted that it is the defendant who has not complied with the order. Defendant was to measure the land which was agreed to be sold. However, he has measured some different land and he is also not found to be in possession of the area which was agreed to be sold. Hence, according to learned counsel for respondent-plaintiff, as trial Court has rightly corrected its own order, no interference is warranted in the impugned order passed by the trial Court. 10] In the light of these rival submissions advanced by learned counsel for the parties, it becomes necessary to reproduce the provisions of Order-XXXIX Rule-11 of the Code of Civil Procedure (Bombay Amendment) which read as follows:
Rule-11:- where any party to a suit or proceeding gives any undertaking to the Court to do or to refrain from doing a thing during the pendency of the suit or proceeding, and such party commits any default in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, the Court may dismiss the suit or proceeding, if the default or contravenes or breach is committed by the plaintiff or the applicant, or strike ::: Uploaded on - 05/07/2017 ::: Downloaded on - 28/08/2017 08:17:23 ::: AO 45-16J.odt 8 out the defences, if the default or contravention or breach is committed by the defendant. (2):- If sufficient cause is shown and on such terms and conditions as it may deem fit to impose, restore the suit or proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Court.
11] In the instant case, the submission advanced by learned counsel for the defendant is two fold; in the first place, it is submitted that plaintiff has not deposited the balance amount of consideration within 15 days after the defendant has filed measurement map in the Court and thus committed the breach of the express order passed by the Court. Moreover, plaintiff has also committed the breach of the undertaking given to the Court on 29.10.2014 vide Exh.24. It is submitted that the learned counsel for plaintiff has filed an application at Exh.24 on 29.10.2014, stating therein that, as per the Court's order passed below Exh.13, the plaintiff has to deposit sale consideration amount. However, considering huge amount of lakhs rupees which has remained outstanding, plaintiff requires 15 days time for depositing the said amount. It was further stated in the said application that counsel for the plaintiff has contacted the plaintiff and informed him that ::: Uploaded on - 05/07/2017 ::: Downloaded on - 28/08/2017 08:17:23 ::: AO 45-16J.odt 9 today the undertaking was required to be submitted in the Court, in turn plaintiff informed his counsel that plaintiff was not available on that day and further instructed his counsel to submit undertaking under the signature of counsel. It was further stated that, accordingly the plaintiff through his counsel undertakes that the said amount would be deposited within 15 days from that day and the prayer was made to allow the 15 days time for deposit of the said amount. The order passed on this application shows that the time was accordingly granted.
12] The grievance of the learned counsel for the defendant is that the plaintiff has thus not only committed default in compliance of the order passed by the trial court below Exh.13 on 12.8.2014 but further he has also committed the breach of this undertaking given to the Court on 29.10.2014. Hence, the trial Court was well justified in dismissing the suit for default under Order-XXXIX Rule-11 of the Code of Civil Procedure. It is his submission that unless the plaintiff has made amends in the default or contravention or breach to the satisfaction of the Court in respect of the said order, the trial Court could not have restored the suit. In this case, it is urged that the plaintiff has till today not ::: Uploaded on - 05/07/2017 ::: Downloaded on - 28/08/2017 08:17:23 ::: AO 45-16J.odt 10 made any amends in the default. He has neither deposited the outstanding amount of consideration, either as per the order passed by this Court, nor even as per the undertaking given by his counsel. Hence, the impugned order passed by the trial Court restoring the suit already dismissed, needs to be quashed and set aside.
13] The second submission advanced is that; if the earlier order passed by the court on 12.8.2014 was not challenged by the plaintiff, then it was not proper on the part of trial Court to set side the said order, on the count that some error was found in the said order as certain facts were not brought to its notice. According to the learned counsel for the defendant, by setting aside its own order of dismissal of suit, that too without the condition laid down in Rule-11(2) Order XXXIX of the Code of Civil Procedure being complied with, the trial Court has acted illegally. Hence, the impugned order passed by the trial Court needs interference.
14] Now while considering the first submission, in order to understand whether by its order below Exh.13, the trial Court ::: Uploaded on - 05/07/2017 ::: Downloaded on - 28/08/2017 08:17:23 ::: AO 45-16J.odt 11 has given direction to the plaintiff to deposit the outstanding amount in the Court, it is necessary to quote the relevant order which reads as follows:
"Defendant do measure the property afresh through Government measurer and to file the map within 15 days and plaintiffs to keep ready outstanding amount for depositing in the Court on the date when defendant submits the map".
15] Bare perusal of this order makes it clear that there was no express direction to the plaintiff by this order to deposit the outstanding amount in the Court on the date when defendant submits map. The plaintiff was merely directed to keep ready outstanding amount and there was no order to the plaintiff to deposit the same in the Court on the date when defendant submits map. Therefore, there was no such express direction, of which the plaintiff can be said to have committed the default, which could have resulted into dismissal of suit under Order-XXXIX Rule-11 of the Code of Civil Procedure.
Secondly, if at all any undertaking was given by learned counsel for plaintiff, vide application at Exh.13 in pursuance of the said order, it has to be held that, if the said order itself was not directing the plaintiff to deposit the amount but only ::: Uploaded on - 05/07/2017 ::: Downloaded on - 28/08/2017 08:17:23 ::: AO 45-16J.odt 12 to keep it ready, that undertaking does not have much significance so that its breach should result in dismissal of the suit. 16] Significantly and most importantly, as per the order passed below Exh.13 on 12.8.2014, the defendant was to measure the suit property afresh through Government measurer. Now the property which was to be measured afresh was the property, which was agreed to be sold. Agreement to sale is clear to show that the property which was agreed to be sold was from the portion of the land bearing survey no. 64-C and it was extent to 36R. However, the measurement, map copy of which, was produced on record by the defendant, as observed by trial Court, was of survey no. 64/A-3. Therefore, it follows that it was not of the land which was agreed to be sold.
17] Moreover, as per the said map, the area found in possession of the defendant was only 35R whereas, as per the agreement, the portion of 36R was agreed to be sold by defendant to plaintiff. Therefore, strictly speaking, the map which was produced on record by the defendant was itself in dispute, as it cannot be categorically said to be of the property which was ::: Uploaded on - 05/07/2017 ::: Downloaded on - 28/08/2017 08:17:23 ::: AO 45-16J.odt 13 agreed to be sold. The order directing plaintiff to keep ready the outstanding amount was subject to condition that the defendant produces map of the measurement of the suit property afresh through Government measurer. If the map produced on record by the defendant was not of the property which was agreed to be sold, and it was also not disclosing that the entire land admeasuring 36R agreed to be sold by the defendant, was in his possession, then there was no sufficient justification for the plaintiff to seek modification of the order passed by the trial Court dismissing his suit for default under Order-III Rule-11 of C.P.C. and at least for the trial Court to reconsider the said order having regard to the facts, subsequently brought to his notice. 18] The trial Court has, therefore, in its impugned order rightly held that all these facts were not brought to its notice when it passed the order of dismissal of suit in default for non- compliance, under the provision of Order-XXXIX Rule-11 of the Code of Civil Procedure. Now once these errors which had crept into its order were brought to the notice of the trial Court, the trial Court was duty bound to correct its own order. As rightly observed by the trial Court, if some error is appearing in the ::: Uploaded on - 05/07/2017 ::: Downloaded on - 28/08/2017 08:17:23 ::: AO 45-16J.odt 14 record of the Court then it is for the Court to rectify the said error and give an opportunity to both the parties to agitate the controversy involved in the matter on merit. As a matter of fact, the trial Court found that the order which it has passed below Exh.13 of directing the plaintiff to deposit the outstanding amount of consideration, could not have been passed in view of judgment in this Court in the case of "Sanjay Agarwal Vs. Beekalane Fabrics (P) Ltd., 2007(6) Bom.C.R. 695(O.S.). 19] Therefore, the trial Court was satisfied not only on the factual position but also in view of the legal position after hearing learned counsel for the parties, that it was a fit case to correct its own error and once again give an opportunity to both the parties to agitate their case, instead of dismissing it in default on technical ground. Perusal of the impugned order passed by trial Court, shows that the trial Court has restored the suit on the same terms and conditions which were imposed while passing the order below Exh.13 and also by imposing the cost of Rs.10,000/-. 20] Having regard to the entire facts and evidence on record, it cannot be said that the impugned order passed by trial ::: Uploaded on - 05/07/2017 ::: Downloaded on - 28/08/2017 08:17:23 ::: AO 45-16J.odt 15 Court is manifestly illegal or perverse so as to warrant interference therein In view thereof, the appeal holds no merit and hence, stands dismissed.
JUDGE RGIngole ::: Uploaded on - 05/07/2017 ::: Downloaded on - 28/08/2017 08:17:23 :::