Gujarat High Court
Aarifbhai Razakbhai Memon (L H Of Late ... vs Manjulaben Prabhudas Panchal on 13 November, 2025
NEUTRAL CITATION
C/FA/174/2025 JUDGMENT DATED: 13/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 174 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 174 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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AARIFBHAI RAZAKBHAI MEMON (L H OF LATE RAZAKBHAI HAJIBHAI
MEMON ) & ANR.
Versus
MANJULABEN PRABHUDAS PANCHAL & ORS.
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Appearance:
SENIOR ADVOCATE MR.DHAVAL VYAS for MR DA SANKHESARA(5955)
for the Appellant(s) No. 1,2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 13/11/2025
ORAL JUDGMENT
1. The present appeal is filed under section 96 of the Civil Procedure Code, 1908 challenging the judgment passed by the learned City Civil Court at Ahmedabad in Civil Suit No.334 of 2011 dated 21.09.2025 whereby, the suit filed for specific performance of the contract came to be Page 1 of 7 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 23:16:26 IST 2025 NEUTRAL CITATION C/FA/174/2025 JUDGMENT DATED: 13/11/2025 undefined dismissed.
2. It is the case of the present appellant who is the plaintiff that defendants are the owners of the suit property and they had decided to sell it to the plaintiff's predecessor i.e Late Shri Razakbhai Memon. On 11.08.1995 the agreement to sale came to be executed for the sale consideration of Rs.57,000/- out of which Rs.17,000/- was paid towards earnest money. The plaintiffs are in the possession of the suit property as they are claimed to be tenants in the said property. It is claimed that though repeated demands were made for executing the sale deed and despite various communications were addressed, the defendant had not executed the sale deed. It was replied by the defendant that because of the Civil Suit No. 509 of 1995 and the injunction order which is passed therefore, they are not able to execute the sale deed. Ultimately, on 15.04.2006 the defendants informed to the plaintiff that they are not ready to execute the sale deed and plaintiff was asked to handover the peaceful possession. Seeking specific performance of the agreement to sale the impugned suits came to be filed. The plaintiff has examined the Page 2 of 7 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 23:16:26 IST 2025 NEUTRAL CITATION C/FA/174/2025 JUDGMENT DATED: 13/11/2025 undefined Power of Attorney namely Hasmukhlal Modi on behalf of the plaintiff below Exh 36 in order to prove the case and has also place on record the documentary evidence in the nature of agreement to sale below Exh 39, letters written to the plaintiff's father below Exh.40, reply given by the defendants below Exh.41, notice issued by the defendants below Exh.42, reply given by the plaintiff below Exh.43 and original Power of Attorney below Exh.44 and in order to prove the defence, the defendant has examined himself below Exh.47 and has not led any documentary evidence. Learned court has framed eight issues and has dismissed the suit which is impugned before this Court.
3. Heard learned senior advocate Mr.Dhaval Vyas for the appellant-original plaintiff.
3.1. Learned senior advocate Mr.Dhaval Vyas submits that learned Court has committed an error in holding that suit is not maintainable as the agreement to sale which was executed in the name of Pankaj Corporation has not filed the suit. Learned senior advocate Mr.Dhaval Vyas has drawn the attention of this Court with regard to the agreement to sale which is part of the paper book which Page 3 of 7 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 23:16:26 IST 2025 NEUTRAL CITATION C/FA/174/2025 JUDGMENT DATED: 13/11/2025 undefined is supplied by learned advocate wherein, the agreement to sale was executed through Razakbhai Hajibhai Memon for M/s Pankaj Corporation and the suit is filed by son of Razakbhai Memon namely Arif Razakbhai Memon and Salimbhai Razakbhai Memon. Learned senior advocate Mr.Dhaval Vyas submits that without examining the above aspect, learned Court has dismissed the suit and therefore, the impugned judgment deserves to be set aside and the suit is required to be decreed in favour of the plaintiff. Learned senior advocate Mr.Dhaval Vyas further submits that learned Court has also committed error while answering the issued no.5 in affirmative manner and holding that the suit is barred by the limitation. Learned senior advocate Mr.Dhaval Vyas submits that the issue with regard to limitation were never raised before the learned trial court either during the examination in chief or through its written statement. The only issue framed before the Court was whether the plaintiff proves he was and ready to perform his part of the agreement and whether the defendant proves time was essence of the contract and plaintiff failed to perform his part of the Page 4 of 7 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 23:16:26 IST 2025 NEUTRAL CITATION C/FA/174/2025 JUDGMENT DATED: 13/11/2025 undefined agreement. Learned senior advocate Mr.Dhaval Vyas submits that in absence of any issue regarding limitation, it was not open for the learned court to rely on Article 54 of the Limitation Act and to hold that suit for specific performance was filed after a period of three years. On that ground as well, the suit is required to be decreed.
4. Having considered the arguments advanced by learned senior advocate Mr.Dhaval Vyas and on referring the reasons assigned by the learned trial court along with Paper Book which is supplied by learned advocate, it emerges that plaintiff namely Arifbhai Razakbhai Memon and Salimbhai Razakbhai Memon who are the heirs of Razakbhai Hajibhai Memon has filed the suit for specific performance on 10.02.2011 against the heirs of Late Shri Prabhudas Jivanlal Panchal. The suit is filed for specific performance of contract, alleging that after executing the agreement to sale on 11.08.1995, the defendant denied to executing the sale deed despite the plaintiff shows readiness and willingness to perform his part of the contract. On referring the agreement to sale which is produced below Exh.39, it emerges that Page 5 of 7 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 23:16:26 IST 2025 NEUTRAL CITATION C/FA/174/2025 JUDGMENT DATED: 13/11/2025 undefined agreement to sale was executed between M/s Pankaj Corporation through Razakbhai Hajibhai Memon and Shri Prabhudas Jivanlal Panchal and others. The said agreement to sale does not refer that on personal capacity of Razakbhai Memon, agreement to sale was executed and the Pankaj Corporation has not filed suit, whether M/s. Pankaj Corporation is proprietorship firm or partnership firm that was not clarified through the evidence by the plaintiff. It is settled position of law in the suits relating to specific performance of contract, it is the party with whom the agreement is made is necessary party. The Apex Court in the decision rendered in the case of Kasturi vs Iyyamperumal and Ors reported in 2005 (6) SCC 733 has held that for deciding the question who is necessary party in a suit for specific performance, the guiding principle is that presence of such party is necessary to adjudicate the controversies involved in the suit for specific performance of contract for sale. The question is decided keeping in mind the scope of the suit. The question that is to be decided in a suit for specific performance of the contract for sale is to the Page 6 of 7 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 23:16:26 IST 2025 NEUTRAL CITATION C/FA/174/2025 JUDGMENT DATED: 13/11/2025 undefined enforceability of the contract entered into between the parties to the contract and in whose absence no decree can be passed by the Court.
4.1. As noted above, the purchaser namely M/s. Pankaj Corporation has not filed suit and therefore, in the opinion of this Court, the plaintiff would not have any right to seek execution of the agreement to sale and suit itself is not maintainable on the ground of misjoinder of parties. In that background, no error has been committed by the learned Court in dismissing the suit as suit itself is not maintainable and hence, no further examination is required for the other issues which are framed by the learned trial court. Hence, this appeal deserves to be dismissed.
5. Resultantly, this appeal is dismissed. ORDER IN CIVIL APPLICATION In view of the judgment passed above, civil application is disposed of.
(M. K. THAKKER,J) ARCHANA S. PILLAI Page 7 of 7 Uploaded by MRS. ARCHANA SAJEEVKUMAR PILLAI(HC01899) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 23:16:26 IST 2025