Bombay High Court
Rajkumar Singh S/O Ramlakhan ... vs Madhukar S/O Akhaduji Barwad And ... on 25 July, 2017
Bench: Dr. Shalini Phansalkar-Joshi
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION NO. 78 OF 2016
Rajkumar Singh s/o Ramlakhan Singh
Aged about 57 years, Occ.: Service
R/o Hawamahal, Kamptee,
Tahsil Kamptee, District-Nagpur. ....... APPELLANT.
...V E R S U S...
1] Madhukar s/o Akhaduji Barwad
Aged about 50 years, Occ.: Cultivation
R/o Dhapewada (K), Tah. Kalmeshwar
District-Nagpur.
2] Gunderao s/o Daulatrao Wankhede
Aged about 51 years, Occ.: Cultivation
R/o Dhapewada (K), Tahsil-Kalmeshwar
District-Nagpur. .......RESPONDENTS.
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Shri G. M. Shitut, Advocate for Appellant.
Shri M. B. Agasti, Advocate for Respondent no. 1.
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CORAM: DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.
DATE : 25 th
JULY, 2017.
ORAL JUDGMENT
This Revision is preferred, challenging the order
dated 30.8.2016 passed by the District Judge-13, Nagpur, below
Exh.32 filed in Miscellaneous Civil Application No. 281/12,
whereby the learned District Judge has rejected the said
application which was filed for dismissal the Miscellaneous Civil
Application No. 281/12.
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2] Brief facts of the Revision can be stated as follows:-
Respondent no.2 was the owner of the land bearing survey
no.26, area 1.94 H.R., situated at Mouza Hardoli, Tah.
Kalmeshwar, District-Nagpur. By virtue of an agreement of sale
executed on 20.7.1998, respondent no.2 has agreed to sell the
said land to the applicant. However, subsequently respondent
no.2 avoided to execute the sale-deed. Hence, the applicant had
filed Spl.Civil Suit No. 376/2000 on 26.5.2000 against respondent
no.2 for specific performance of agreement of sale and for
possession of the land.
3] Respondent no.2 appeared in the said suit and filed
his written statement, admitting the execution of the agreement of
sale but contending that it was executed as security for the hand-
loan obtained from the applicant.
4] On the basis of the rival contentions raised by both
the parties, the trial Court has framed issues at Exh.24. The
parties, applicant and respondent no.2 examined themselves and
also adduced the evidence of the witnesses. The suit was
accordingly fully contested and decided on merits by the judgment
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and order dated 31.7.2007. By the said judgment, the decree for
specific performance of agreement was granted in favour of the
applicant. Respondent no.2 has not challenged the said judgment
and decree till the date and thus, it has attained finality.
5] However, as respondent no.2 failed to comply with
the said judgment and decree, applicant was constrained to file
Special Darkhast No. 251/2008. In the said execution proceeding,
respondent no.2 failed to remain present though duly served with
notice. Hence, the sale-deed came to be executed through Court
on 24.6.2010 thereby the applicant has become absolute owner of
the said land. The possession of the said land was also delivered
to the applicant through Bailiff on 20.4.2012. As per the case of
the applicant, since then he is in actual and lawful possession of
the suit land in his capacity as owner.
6] However, subsequent thereto, on 24.4.2012
respondent no.1 appeared in execution proceeding and raised an
objection, claiming himself to a bona fide purchaser of the suit
land, having purchased it, vide sale-deed dated 21.3.2001 from
respondent no.2 As per the applicant, as the said sale-deed was
executed by respondent no.2 in favour of respondent no.1 during
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the pendency of the suit, it was hit by the principle of lis pendens.
Along with raising objection in the execution proceedings,
respondent no.1 also preferred an appeal on 26.4.2012 in the
District Court challenging the judgment and decree passed in
Spl.Civil Suit No. 376/2000, claiming that he has purchased the
property during the pendency of the suit and as original defendant
has not challenged the said judgment, by filing appeal, he was
entitled to prefer such appeal. However, as there was delay of
about four years and eight months, in preferring the appeal,
respondent no.1 had filed an application bearing Misc.Civil
Application No. 281 of 2012 for condonation of delay under
Section 5 of the Limitation Act. Along with the application for
condonation of delay, he has also filed an application for grant of
leave to file the appeal. The learned District Judge allowed both
the applications by common order dated 17.7.2012.
7] Against the said order of condonation of delay, the
present applicant preferred C.R.A. No. 73 of 2012 in this Court.
After hearing both the parties, the said revision application was
allowed and the order of the District Court passed on 17.7.2012
allowing condonation of delay came to be set aside. The matter
was remanded to the District Court with a direction to grant an
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opportunity to both the parties to lead evidence in support of their
contentions.
8] Applicant has, also in the meantime by filing a
separate Writ Petition No. 5395/12 challenged the remaining part
of the common order passed by the District Court of granting
leave to respondent no.1 to file the appeal. However, the said writ
petition came to be dismissed by this Court, vide order dated
20.3.2013, holding that, as no appeal was preferred by the
original defendant i.e. respondent no.2 and as interests of
respondent no.1 were prejudicially affected by the judgment and
decree passed in Special Civil Suit No. 376 of 2000, respondent
no.1 can file appeal against the judgment and decree in that suit.
9] In the meantime, respondent no.1 has also filed
Reg.Civil Suit No. 160 of 2012 on 30.4.2012 before Civil Judge,
Jr. Division, Kalmeshwar against the present applicant and
respondent no.2 for declaration of ownership and permanent
injunction in respect of the suit land. That suit came to be
dismissed by the trial Court and against that decision, no appeal is
preferred.
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10] In this backdrop of these facts, as the present
applicant came to know that respondent no.1 has sold the suit
property to some third person vide sale-deed dated 27.3.2014, the
applicant filed, therefore, an application at Exh.32 before the
District Court pointing out that as respondent no.1 was allowed to
file an appeal, on the pretext that he has purchased the suit
property from respondent no.2 and he was in actual possession of
the same, now in view of the sale-deed of the said property
executed by respondent no.1 in favour of some third person, he is
no more the owner of the suit property, nor he is in actual
possession of the said property; therefore, his cause of action to
file the appeal against the judgment and decree in Spl.Civil Suit
376/2000 has come to an end.
11] Respondent no.1 resisted this application vide his
reply dated 30.4.2016 whereas respondent no.2 chose not to file
any reply to this application.
12] During pendency of hearing on this application, the
applicant served notice to respondent no.1 to admit the sale-deed
dated 27.3.2014 which he has executed in favour of some third
person. Respondent no.1 admitted the said sale-deed, thus,
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leaving no manner of doubt that he has sold the suit property to
some third person.
13] In view of these admitted facts on record, the
grievance of the applicant is that respondent no.1 was no more
entitled to file the appeal against the judgment passed in Spl.Civil
Suit No. 376/2000. However, the learned District Court was after
hearing the counsel for both the parties, pleased to reject his
application and hence, applicant is constrained to prefer this
Revision challenging the said order.
14] According to learned counsel for applicant, the very
right or entitlement on the basis of which the respondent no.1 was
granted leave to file the appeal was, he being the purchaser of the
suit land and claiming to be in possession thereof, on the basis of
sale-deed executed during the pendency of the suit. However, as
now he no more remains to be the other owner or in possession of
the suit land, in view of the sale-deed executed by him on
27.3.2014 in favour of some third person, he has no right to file
the appeal and hence, on this very ground itself, the application
filed by him for condonation of delay and for leave to appeal
should have been dismissed. Allowing respondent no.1 to
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continue the said proceeding will not only cause prejuduice to the
applicant but it is as good as granting permium on illegal act of
respondent no.1. It is submitted by learned counsel for the
applicant that, learned District Judge has rejected his application
only on the count that this Court has remanded the mater to the
said court for deciding the same afresh and therefore, it would not
be proper on his part to dismiss the said proceeding. It is urged
that this order of learned District Judge, therefore, is not
considering the actual controversy and hence it needs to be
quashed and set aside.
15] Per contra, learned counsel for respondent no.1 has
supported the said order by submitting that during pendency of
Spl.Civil Suit No. 376/2000 or even thereafter during the
pendency of the Misc.Civil Application No. 281 of 2012, no stay
order was operative restraining respondent no.1 from creating
third party interest in the suit property. Therefore, if he has
created such interest, it cannot be said that he has committed any
illegality. Therefore, his right to appeal cannot be forfeited which
is already granted by this Court. Thus, according to learned
counsel for respondent no.1, the learned District Judge has rightly
rejected the application for dismissal of the proceedings in
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Misc.Civil Application No. 281 of 2012 and no interference is
warranted in the said order, within the limited scope of revisional
jurisdiction of this Court.
16] I have given my thoughtful consideration to the
submissions advanced by learned counsel for both the parties and
on the basis of the same having regard to the conspectus of facts,
elaborated above, in my considerred opinion, it has to be held that
respondent no.1 has lost his right or the cause of action to seek
leave to file appeal. It is pertinent to note that the very cause for
giving him the leave to file appeal as per the order passed by this
court in W.P. No. 5395 of 2012 was respondent no.1 claiming to
be a bona fide purchaser of the suit land during the pendency of
the suit and respondent no.2 having not preferred any appeal
against the decree for specific performance passed in Spl.Civil Suit
376 of 2000. Another reason was that respondent no.1 claimed
himself to be in possession of the suit property.
17] However, now by executing the sale-deed dated
27.3.2014 in favour of the some third party and admitting the said
fact on record, it is clear that respondent no.1 is no more the
owner of the suit property and as can be seen from the recitals in
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the sale-deed, he is also no more in possession of the suit property
as he has delivered the possession to third party on 27.3.2014.
Thus, he has lost whatever interest he has in the suit property by
executing the sale-deed and disposing of the suit property during
the pendency of the proceedings which were initiated by him, for
seeking leave to file appeal and for that purpose filing of
application for condonation of delay in seeking such leave.
18] Thus, whatever right respondent no.1 has in the suit
property, having been voluntarily given up by him, in favour of
some third person, there remains no more cause of action for him
to file the appeal. He was considered as interested party, only
because he was having sale-deed of the suit property in his favour
and as he was claiming to be in possession of the suit property.
Now he has already sold out the suit property and also parted
with the possession of the suit property. Hence, the very basic
foundation for him for seeking leave to file appeal no more
remains and therefore, his application, either for condonation of
delay or for seeking leave to appeal should have been dismissed
by District Court.
19] As regards the contention of the learned counsel for
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respondent no.1, that there was no stay order passed by any of
the Courts restraining him from creating third party interest and
therefore, he cannot lose his interest merely on account of such
sale-deed executed in favour of third party and hence his right to
appeal cannot be forfeited on that count, needless to state that
this submission cannot be accepted for the simple reason that it is
as good as granting premium to respondent no. 1 for his
inequitable act. Even if it is accepted that there was no stay order
or inunction granted against respondent no.1 restraining him from
creating third party interest, the fact remains the sale-deed
executed by him in favour of third person is hit by the principle of
lis pendens. This act on his part is against the principle of equity
and justness. A person who seeks the discretion of the Court for
leave to appeal against the decree, though he was not a party to
the suit, must come before the Court with clean hands. He cannot
take the benefit of absence of injunction or stay order to contend
that though he has transferred the property in favour of the some
third person, he still enjoys the right to challenge decree, which is
passed in favour of the applicant and which is already executed
through the Court. Such conduct on the part of respondent no.1
cannot be approved by the Court, by permitting him to continue
with his challenge to the said decree.
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20] Otherwise also, respondent no.1 has lost interest in
the suit property and therefore, he can no more be said to be
having any cause of action for filing the application for
condonation of delay in filing the application for leave to file
appeal against the judgment and decree in Spl.Civil Suit No.
376/2000. It appears that learned District Court has rejected the
application of applicant for dismissal of the proceeding only on
the count that this Court has remanded the matter for deciding
the application for condonation of delay after recording evidence
of the parties. However, it does not mean that the learned District
Judge, could not have exercised its discretion in the light of the
facts brought to his notice that application for leave to file appeal
itself is not maintainable as respondent no.1 has lost his interest,
right, title and possession in the suit property by his own act of
transferring the suit property in favour of third person.
21] The impugned order therefore passed by District
Court needs to be quashed and set aside. Accordingly the revision
is allowed.
The impugned order passed by District Court on
application Exh.32, filed by applicant in Miscellaneous Civil
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Appicaton No. 281/2012 is hereby set aside.
As a consequence, the application at Exh.32 filed in
Miscellaneous Civil Appicaton No. 281/2012 is allowed. The said
Miscellaneous Civil Appicaton No. 281/2012 stands dismissed as
respondent no.1 is having no more cause of action to file the said
proceeding.
Revision application is thus disposed of.
JUDGE
RGIngole
