Smt. Sudha Girishchandra Gupta ... vs Ajabrao S/O Wadguji Patil
2017 Latest Caselaw 4735 Bom

9-J-WP-162-17                                                                                1/6


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.

                          WRIT PETITION NO.162 OF 2017


1.  Sudha Girishchandra Gupta,
     Aged about 59 years,  Occ. Service. 

2.  Geetika d/o Girishchandra Gupta,
     Aged about 33 years, Occ. Housewife, 

    Both R/o 53-A, NIT Layout, Trimurti Nagar, 
    Nagpur.                                                     ... Petitioners. 
 
-vs-

Ajabrao s/o Wadguji Patil, 
Proprietor, M/s Harshu Constructions, 
Contractor, Builder & Developer, 
R/o 55-C NIT Layout, Trimurti Nagar, 
Nagpur.                                                         ... Respondent. 


Shri A. A. Naik, Advocate for petitioners. 
Shri C. F. Bhagwani, Advocate for respondent. 


                CORAM  :  P. N. DESHMUKH, J. 

DATE : JULY 19, 2017

Oral Judgment :

Rule. Rule made returnable forthwith. Heard finally by consent

of learned counsel for both the parties.

In this petition challenge is to the impugned order passed below

Exhibit-96 by learned 7th Jt. Civil Judge, Sr. Dn. Nagpur in Spl.C.S.

No.631/2008 rejecting the application filed by the petitioners/original

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defendants for appointment of Court Commissioner.

2. This Court while issuing notice had granted ad interim relief

thereby staying proceedings of the said suit until further orders.

3. Heard learned counsel for both the parties. Perused documents

filed in support of the petition, consisting of copy of plaint, written

statement, impugned order and agreement entered between the parties with

regard to construction work carried out by the respondent. Para 2 of said

development agreement is reproduced as under :

2. That the development out of the above said plot admeasuring

270.711 sq. mtr. (2914 sq. ft), will be carried out by the Builder as

per sanctioned plan by N.M.C. dt. 16/09/2006 and that the owner

hereby agrees to entrust the development of the said property

covering an area of 270.711 sq. mtr. more particularly described in

Schedule "A" hereunder written."

4. Citing contents of agreement as aforesaid, it is thus contended

that respondent who is original plaintiff, in utter disregard to the above said

contents of the agreement had carried out construction of the building which

is contrary to the sanctioned plan and for brining this fact on record, the

petitioner for that purpose filed application for appointment of Court

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Commissioner under Order XXVI of Code of Civil Procedure, particularly with

regard to the quality of construction and to satisfy that the same is not

carried out according to sanctioned plan or the construction is in deviation

from the sanctioned plan issued by N.M.C. Thus in brief the case of the

petitioners is that since the terms of development agreement are deviated

from the sanctioned plan, it is necessary to bring said fact on record and for

that purpose application for appointment of Commissioner should have been

allowed.

5. Learned counsel by referring to provisions of Section 16 of

Specific Relief Act, contended that it is the trial Court who under these

provisions was infact duty bound to get itself satisfied. However, the Court

below without considering above stated provisions, held that petitioners had

not raised any such point in their written statement and has rejected the

application and has thus contended that petition be allowed and direction be

issued to the trial Court to appoint suitable Court Commissioner.

6. Learned counsel for the respondent by filing submissions has

opposed the case of the petitioner. First three paras of submissions are with

regard to the events which took place before the trial Court. The ground put

forth opposing present petition is that since according to petitioner's own

case, after inspection was carried out by authorities of N.M.C since the

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respondent was found to have closed the parking area, petitioner in that

event should have at that time itself, applied for permission and could have

examined the said authorities from N.M.C. to bring on record the fact with

regard to the quality of construction or deviation in the construction, if any,

caused by the respondent against the sanctioned plan. Learned counsel for

the respondent has thus contended that petition is liable to be dismissed as

even otherwise application is moved before the trial Court at belated stage.

7. Perusal of plaint as well as written statement and the agreement

in fact supports the case of the petitioner about respondents not carrying out

construction work as per the plan duly sanctioned by N.M.C. on 15/09/2006

etc., while in the written statement petitioner has specifically denied the

case of respondent. In any event, admittedly, as it is contented that even the

parking area of the building was not appropriate and as such respondent

himself had closed it, after the inspection of the building was carried out by

the concerned authorities of N.M.C, though petitioner had not examined such

authority to bring on record, fact of deviation in construction, if any, carried

out by respondent, petitioner on this ground itself cannot be precluded from

bringing such evidence on record by examining the material witnesses.

8. Even otherwise considering the provisions of Section 16 of the

Specific Relief Act, 1966, specific performance of contract cannot be enforced

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in favour of a person who has become incapable of performing, or violates

any essential term of the contract, that on his part remains to be performed,

or acts in fraud of the contract, or willfully acts at variance with, or in

subversion of, the relation intended to be established by the contract.

9. In view of paragraph 2 of the agreement referred to aforesaid,

respondent agreed to carry out construction as per the sanctioned plan.

However, as pointed out, the authorities of the N.M.C. on inspecting the

construction work has found that same is in deviation of sanctioned plan. In

that view of the matter, petition is liable to be allowed as the learned trial

Court appears to have given much weight to the fact that no pleadings are in

the written statement and that for the first time such issue is raised by filing

application at belated stage of the trial without considering the provisions of

Section 16 of the Specific Relief Act.

10. Even otherwise by allowing the petition, no prejudice can said to

be caused to the respondent-plaintiff as he would get the opportunity to raise

objection to Commissioner's Report and can even cross-examine the Courtn

Commissioner if examined by the trial Court. In the circumstances, the

following order is passed.

(i)           Petition is allowed. 

(ii)          Interim orders below Exhibits-96 and 103 in Spl. C.S.No.631 of




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2008 are quashed and set aside. Exhibit-96 application for

appointment of Commissioner is allowed. Learned trial Court to

pass order appointing Court Commissioner in consultation with

learned counsels for both the parties.

JUDGE

Asmita