C/SCA/9908/2013 ORDER DATED: 23/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9908 of 2013
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 9908 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 9909 of 2013
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 9909 of 2013
==========================================================
SULOCHANABEN RAMESHBHAI PATEL & 1 other(s)
Versus
ALPA ISHWARBHAI PATEL & 3 other(s)
==========================================================
Appearance:
MS TRUSHA K PATEL(2434) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2
MR PA JADEJA(3726) for the Respondent(s) No. 4
MR PREMAL S RACHH(3297) for the Respondent(s) No. 3
MR VIRAT POPAT FOR MR TIRTH N BHATT(8487) for the Respondent(s)
No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 23/03/2023
COMMON ORAL ORDER
1. The issue for consideration in these petitions is about examining the issues which are suggested in the common application at Exh.372 in Special Civil Suit No.100 of 2001 and Special Civil Suit No.49 of 2003 pending before the learned Principal Senior Civil Judge, Kalol.
Page 1 of 6 Downloaded on : Fri Mar 24 20:46:06 IST 2023
C/SCA/9908/2013 ORDER DATED: 23/03/2023
2. Heard learned advocates for the parties.
3. At the outset, learned advocates for the parties have submitted that by passage of time, now the parties are keen to proceed with the suit proceedings and some consensus is also arrived at between the parties regarding the recasting of issues. As a part of the consensus, it is submitted that the parties have agreed for issue nos.9(A)(B)(H)(K)(O) of Exh.372 application which read as under:
"9(A) Whether it is proved by plaintiffs of both the suits that the sale deeds executed on 13/10/1999 for the suit land in favour of defendant no.1 are fraudulent, sham, bogus, nominal and without consideration?
(B) Does the plaintiffs of Special Civil Suit No.100/2001 prove that the release declaration got signed and executed by defendant no.3 of Special Civil Suit No.100/2001 and plaintiff of Special Civil Suit No.49/2003 is fraudulently got signed by Rohitbhai Ishwarbhai Patel?
(H) Does the plaintiffs of both the suits prove that they were ever in possession of the suit lands from the date of execution of the sale deeds by the original owners?Page 2 of 6 Downloaded on : Fri Mar 24 20:46:06 IST 2023
C/SCA/9908/2013 ORDER DATED: 23/03/2023 (K) Does the plaintiff of Sp.C.S.No.49/2003 prove that he had no knowledge of execution of sale deeds dated 13/10/1999 till he obtained copies of the Entries made in the Revenue Register?
(O) Does the plaintiffs of Special Civil Suit No.100/2001 and Special Civil Suit No.49/2003 prove that they have not colluded in filing such suits to extort money from defendant no.1?
Therefore, it is submitted that the same can be considered in the present petition.
4. However, learned advocate Ms.Patel for the petitioners submitted that she is also pressing that issue no.9(F) which is suggested in view of the various communications between the parties and the pleadings of the parties, more particularly, plaint and written statement where the averments are to the effect that the source of funds of the transaction is required to be examined by the trial Court and therefore she prays that no harm will be caused if the said issue is framed in a modified manner.
Page 3 of 6 Downloaded on : Fri Mar 24 20:46:06 IST 2023
C/SCA/9908/2013 ORDER DATED: 23/03/2023
5. Against this, learned advocates Mr.Popat and Mr.Rachh in respective petitions have opposed to this suggestion by drawing attention of this Court towards the judgment in the earlier round of litigation passed by this Court in SCA No.13066 of 2010 where in paragraph no.7.2 and 8.5, this Court has considered the framing of same issue as is now suggested by learned advocate Ms.Patel at 9(F). Therefore, the same may not considered in these petitions.
6. He has further submitted that the said order was confirmed by the Apex Court.
7. In view of the above, this petition is partly allowed.
8. The learned Principal Senior Civil Judge, Kalol shall frame the issues agreed upon by the learned advocates for the parties i.e. issue nos.9(A)(B)(H)(K)(O), referred to hereinabove in Special Civil Suit No.100 of 2001 and Special Civil Suit No.49 of 2003.
9. However, for the issue no.9(F) which is insisted Page 4 of 6 Downloaded on : Fri Mar 24 20:46:06 IST 2023 C/SCA/9908/2013 ORDER DATED: 23/03/2023 by learned advocate for the petitioners, I am of the opinion that it is not appropriate to frame the same considering the fact that this Court has dealt with the same and observed as under in the earlier round of litigation being SCA No.13066 of 2010. Paragraph 7.2 of the order dated 29.4.2011 passed in SCA No.13066 of 2010 reads as under:
"7.2 The Issue No.2(3) sought to be deleted in application Exhibit 176 reads as under:
"Whether the plaintiffs prove that they have purchased the property from their own funds or not." Paragraph 8.5 reads as under:
"8.5 In the present case there is no dispute that the property was purchased in the name of the respondents no.1 and 2 and therefore the issue whether or not consideration has been paid from the funds of respondent no.3 is not relevant and necessary for the decision of the suit. It is wholly irrelevant whether the respondent no.3 has paid the sale consideration from his own funds or not. If that issue is allowed to remain, it would obviously mean that the trial court is taking cognizance of defence not permitted under Page 5 of 6 Downloaded on : Fri Mar 24 20:46:06 IST 2023 C/SCA/9908/2013 ORDER DATED: 23/03/2023 section 4 of the Benami transactions (Prohibition) Act, 1986." The same has not been disturbed by the Apex Court. Hence, the issue no.9(F) is not permitted to be framed in the suits.
10. The suits are of the years 2001 and 2003 and earlier also, this Court has issued direction to complete the proceedings within one year, however, due to pendency of the petition and for various other reasons the suits could not be proceeded. Therefore, it is expected that after framing the issues as observed hereinabove, the learned trial Court shall proceed with the trial as expeditiously as possible and after giving reasonable opportunity to the parties to lead the evidence and thereafter decide in accordance with law preferably on or before 30.4.2024.
11. At the petitions are disposed of, no order is required to be passed in the civil applications and accordingly the same are also disposed of.
(SANDEEP N. BHATT,J) SRILATHA Page 6 of 6 Downloaded on : Fri Mar 24 20:46:06 IST 2023