Gujarat High Court
Harsad Zaverilal Budhbhatti vs Muktaben Laxmidas Budhbhatti on 15 October, 2025
NEUTRAL CITATION
C/SA/181/2025 CAV JUDGMENT DATED: 15/10/2025
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Reserved On : 16/09/2025
Pronounced On : 15/10/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 181 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 181 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
YES
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HARSAD ZAVERILAL BUDHBHATTI & ANR.
Versus
MUKTABEN LAXMIDAS BUDHBHATTI & ORS.
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Appearance:
HIREN J TRIVEDI(8808) for the Appellant(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. The present Second Appeal has been filed under section 100 of the Code of Civil Procedure, 1908 ('cpc', for short) challenging the judgement and decree, dated 31.12.2024, passed by 8th Additional District Judge, Bhuj-Kachchh, in Regular Civil Appeal No.14 of 2023, whereby, the said appeal is allowed and judgement and decree, dated 20.04.2019, passed in favour of the plaintiff, by the Principal Senior Civil Judge, Bhuj-Kachchh, in Special Civil Suit No.159 of 2012 has been quashed and set aside.
2. For the sake of the parties are referred to as per the their original Page 1 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:19 IST 2025 NEUTRAL CITATION C/SA/181/2025 CAV JUDGMENT DATED: 15/10/2025 undefined status as that of in the suit.
3.1 The brief facts arising in the present Second Appeal are that, the plaintiff filed suit for specific peformance that defendant no.1 to 6 are joint owners of the suit property and that defendant nos.1 to 6 had agreed to sell suit property to the plaintiff for an amount of Rs.35 Lakhs and an agreement to sale was executed on 01.07.2011 and that on the date of execution of the agreement to sale, the plaintiff paid amount of Rs.2/- Lakhs and the remaining amount was to be paid within three months on getting title of the suit property cleared.
3.2 It is the case of the plaintiff that as defendant nos.1 to 6 were in need of money and as per understanding, plaintiff paid further amount of Rs.1,50,000/- on 20.12.2011, to defendant nos.1 to 6 and, therefore, in all paid Rs.3,50,000/- and the plaintff had given public notice in the news- paper and defendant no.7 had objected being tenant in suit property, in view of the fact that defendant no.7 had decree in his favour in civil suit no.54 of 2004 and it was the case of the plaintiff that plaintiff was ready and willing to execute / perform his part of the contract and defendant nos.1 to 6 are not willing to execute agreement to sale and, therefore, plaintiff issued notice on 29.03.2012 and defendant nos.5 and 6 had given false and evasive reply and thereafter plaintiff filed suit for specific performance. The trial Court framed issues vide Exh.45, which reads as under:
" (1) Whether the Plaintiffs prove that the Defendant No.1 to 6 had entered into agreement to sell dated 01/07/2011 with the Plaintiffs for selling the suit property in Rs.35 Lacs ?Page 2 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:19 IST 2025
NEUTRAL CITATION C/SA/181/2025 CAV JUDGMENT DATED: 15/10/2025 undefined (2) Whether the Plaintiffs prove that the Plaintiffs were and are ready and willing to perform their part as per the agrement to sell ?
(3) Whether the Plaintiffs prove that the Plaintiffs have paid Rs.3,50,000/- to the Defendant No.1 to 6 for the suit property till now ?
(4) Whether the Plaintiffs prove that the Defendant No.1 to 6 have committed breach of conditions of agreement to sell ?
(5) Whether the Plaintiffs prove that they are entitled for performance of agreement to sell dated 01/07/2011 against the Defendant No.1 to 7 ?
(6) Whether the Plaintiffs prove that they are entitled to get the reliefs as prayed for, against the Defendant No.7 ?
(7) What's Order and Decree ?"
3.3 The plaintiff entered witness box and examined himself at Exh.45. Witnesses of the plaintiff were examined at Exh.81, 82 and 83. The suit qua defendant nos.1 to 6 had proceeded ex parte and thereafter said ex parte order qua defendant no.1 was set aside and thereafter on 07.04.2017, the defendant no.4 was ordered to be proceeded ex parte and based on oral and documentary evidence and after giving findings on all the issues, trial Court allowed the said suit and ordered plaintiff to deposit amount of Rs.31,50,000/- along with simple interest and on depositing the amount ordered defendant nos.1 to 6 to execute sale-deed in favour of plaintiff and directed defendant no.7 to handover peaceful possession of the suit property in favour of plaintiff.
3.3 Being aggrieved by the said judgment and decree, defendant nos.1 to 6 filed Regular Civil Appeal No.14 of 2023. The main contention that Page 3 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:19 IST 2025 NEUTRAL CITATION C/SA/181/2025 CAV JUDGMENT DATED: 15/10/2025 undefined was raised in the said appeal was that no opportunity was given to the defendant to cross-examine the plaintiff. Moreover, it was argued by learned advocate for the defendant that though the entire matter was exparte and that defendant did not file any written statement, but the fact remains that even from the documentary evidence and the oral evidence that was led by the plaintiff, the plaintiff could not prove the fact that, agreement to sale was executed by defendants i.e. defendant nos.1 to 6 and that plaintiff has not proved that, the plaintiff was ready and willing to perform his part of contract and, therefore, first appellate Court, after re-appreciating the evidence, has quashed and set aside judgment and decree passed by the trial Court. Hence, present Second Appeal.
4.1 Learned advocate for the plaintiff has mainly argued that the fact remains that neither there is no written statement filed by defendant nos.1 to 6, nor has defendant nos.1 to 6 produced any documentary evidence to support the case of defendant that the plaintiff was never ready and willing to perform his part of contract, that the agreement to sale was not executed by all defendants i.e. nos.1 to 6 and the fact that title was not clear on the date when agreement to sale was executed.
4.2 Learned advocate for the plaintiff has also argued that if the agreement to sale produced, vide Exh. 51, is taken into consideration, the said agreement to sale, though states that the plaintiff had to comply and settle all disputes pertaining to defendant no.7, but the fact remains that it was defendant nos.1 to 6 who had to assist the plaintiff in settling the said issue.
4.3 Moreover, if clause:7 of the memorandum of understanding produced vide Exh.51 is taken into consideration, the plaintiff had to Page 4 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:19 IST 2025 NEUTRAL CITATION C/SA/181/2025 CAV JUDGMENT DATED: 15/10/2025 undefined handle the dispute between defendant nos.1 to 6 and defendant no.7 after the completition of the sale-deed and, therefore, the same cannot be considered as ground of non-granting specific purpose to the plaintiff.
4.4 With respect to the fact that agreement to sale dated 01.07.2011, has been executed only by defendant nos.1, 5 and 6, the fact remains that defendant nos.2 and 3 had executed power of attorney, in favour of defendant no.1, on 14.12.2011, which is produced, vide Exh.56 and thereafter defendant no.4 also executed sale-deed in favour of defendant no.1, which is produced vide Exh.57 and power of attorney has been executed by defendant no.5, in favour of defendant no.1, which is produced vide Exh.58 and the additional payment of Rs.1,50,000/- was paid on December, 2017, the proof of which has been produced vide Exh.51, clearly shows that the same has been signed by power of attorney i.e. by defendant no.1 and no.6 and, therefore, the fact of execution of agreement to sale was known and agreed by defendant nos.1 to 6 and it cannot be said that just because agreement to sale produced vide Exh.51, has been signed initially defendant nos.1, 5 and 6, the same could not be executed, in view of fact that vide Exh.51, when additional amount has been paid, the same has been signed by defendant i.e. power of attorney holder of defendant nos.2 to 5 and defendant no.1.
4.5 It has also been argued that, vide Exh.75, the defendant no.7 had also settled all dispute and withdrew his objection and therefore also the plaintiff, had complied with terms and consideration of agreement, produced, vide Exh.51 and the same cannot be said to be a ground for rejection of relief for specific performance and, therefore, present Second Appeal is required to be admitted on the following substantial questionsof Page 5 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:19 IST 2025 NEUTRAL CITATION C/SA/181/2025 CAV JUDGMENT DATED: 15/10/2025 undefined law as suggested in memo of appeal.
" A. Whether the time was the essence of the agreement for sale in question and non-compliance of the terms of the suit agreement by the plaintiff would result in revocation of the agreement for sale by the defendants ?
Alternatively Whether the lower courts erred in law in holding that "time was of the essence" in a contract for the sale of immovable property, contrary to the settled principles of law under Section 55 of the Contract Act and precedents set by the Hon'ble Supreme Court?
B. Whether the judicial discretion exercised by the learned trial Court in allowing to decree the suit for specific performance could be interfered with by the lower Appellate Court ignoring the provisions of Section 10, 16 and 20 of the Specific Relief Act, 1963?
C. Whether the learned Appellate Court erred in holding that the plaintiff has failed to prove his readiness and willingness in terms of 16(c) of Specific Relief Act, 1963 overlooking the fact that learned Trial Court awarded the interest for the period 01.10.2011 to 13.09.2012 and the said amount was deposited in the trial court on 21.05.2019?
D. Whether the Appellate Court erred in not appreciating the fact that the time limit to deposit the Sale Consideration can be extended by the Trial Court as per Section 28 of the Specific Relief Act, 1963 ?
E. Whether the Appellate Courts failed to properly consider the conduct of the defendant and whether the defendants themself were responsible for the delay in performance?
F. Whether the Appellate Court failed to appreciate that specific performance should be denied only if there is substantial inequity or hardship and that denying Page 6 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:19 IST 2025 NEUTRAL CITATION C/SA/181/2025 CAV JUDGMENT DATED: 15/10/2025 undefined specific performance unjustly benefits the defendant, as they are trying to escape the contract ?
G. Whether the Appellate Courts below erred in law by not appreciating that mere delay in payment of consideration, in the absence of an express stipulation making time the essence, does not disentitle the plaintiff to specific performance ?
H. Whether the Appellate Court failed to appreciate that equity favors the enforcement of specific performance in cases where the plaintiff was willing to perform his obligations, but the defendnt wrongfully refused to comply ?
I. Whether the lower courts failed to appreciate that once the plaintiff was in possession under the agreement for sale by settling the tenancy dispute, the defendant was estopped from refusing to perform the contract and denying the plaintiff's rights?
J. Whether the lower courts committed an error in rejecting specific performance despite the fact that the plaintiff was put in possession under the agreement, thereby entitling him to relief under Section 53A of the Transfer of Proeprty Act?"
5.1 Having heard learned advocate for the plaintiff, the fact remains that the suit that has been filed by the plaintiff is for specific performance and though entire suit has been proceeded ex parte, there is nothing on record to show that when Examination-in-Chief filed by the plaintiff under the provisions of Order XVIII Rule 4, the same is served on the defendants. Order 18 Rule 4 reads as under:
"4. Recording of evidence by Commissioner.
(1) In every case, the evidence of a witness of his examination-in-chief shall be given by affidavit and copies Page 7 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:19 IST 2025 NEUTRAL CITATION C/SA/181/2025 CAV JUDGMENT DATED: 15/10/2025 undefined thereof shall be supplied to the opposite party by the party who calls him for evidence.
(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in- chief) by affidavit has been furnished to the court shall be taken orally by a Commissioner to be appointed by the court from amongst the panel of Commissioners prepared for this purpose on the same day:
Provided that, in the interest of justice and for reasons to be recorded in writing, the court may direct that the evidence of any witness shall be recorded by the court in the presence and under the personal direction and superintendence of the judge.
(3) The Commissioner shall be paid such sum for recording of evidence as may be prescribed by the High Court. (4) The amount payable to the Commissioner under sub-rule (3) shall be paid by the Court or by the parties summoning the witness as may be prescribed by the High Court."
5.2 The fact remains that even after the proceedings are ex parte, the defendants will not have right to lead the evidence, in view of the fact that written statement is not filed by the defendant, but the fact remains that defendant will always have a right to cross-examine the witness of the plaintiff and as per provisions of Order 18 Rule 4, it is mandatory for the parties to serve the copy of examination-in-chief to the either side and it has come on record that the defendants, have not been served with the copy of the examination-in-chief that is filed by the plaintiff and, therefore, question of cross-examining the plaintiff's witness and that entire evidence of plaintiff being unchallenged cannot be taken into consideration.
5.3 The other relevant facts which also require to be taken into consideration are that, if evidence that has been produced by the plaintiff Page 8 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:19 IST 2025 NEUTRAL CITATION C/SA/181/2025 CAV JUDGMENT DATED: 15/10/2025 undefined to show his readiness and willingness is taken into consideration, the plaintiff has relied upon the fact that the plaintiff has produced the documentary evidence of one M/s. Soni Shivji Pragji & Co. the question that arises is that neither the agreement was executed for the partnership firm nor partnership firm, has sought for specific performance of the agreement, therefore, financial capacity of the partnership firm would not be relevant to the facts of the present case.
5.4 It has also come on record that, vide Exh.67, defendant no.5, has terminated the Agreement to sale dated 01.07.2011, and the plaintiff having not challenged the said termination itself also is a ground on which the Court has rightly rejected the relief of specific performance. 5.5 One of the conditions for seeking specific performance of an agreement is that a valid agreement must exist in the eye of law. It is right law that unless and until there is an agreement which is valid in the eyes of law, there can be no specific performance of the same.
5.6 When, the Plaintiff was admittedly informed by the Defendant that the agreement was already cancelled, the same had become non-existent in the eye of law. An agreement that is cancelled, is a non-est agreement. Therefore, unless it was for seeking declaration that the said cancellation was bad in law, could specific performance of the said agreement be granted? The answer to the said question is in the strict negative.
5.7 It is pertinent to be noted at the juncture that this issue was not framed by the Ld. trial Court. However, since it is a plea, which goes to the root of the matter, the same can be considered at any stage as the issue in question is a legal one, and not factual. Moreover, there would be no Page 9 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:19 IST 2025 NEUTRAL CITATION C/SA/181/2025 CAV JUDGMENT DATED: 15/10/2025 undefined jurisdiction of a Court to grant specific performance of an Agreement, which was non-existent. Hence, the said issue will go to the root of the matter. This being a jurisdictional issue, it goes to the root of the matter, and the Court could not have assumed to specific performance, unless and until there was a valid agreement between the parties, or at least cancellation thereof was sought for.
5.8 In any case, even on other counts as noted above, specific performance of the Contract ought not be granted.
6. In view of the above, the present Second Appeal is required to be rejected and it is rejected.
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 10 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:19 IST 2025