Purushottam Narayan Mahajan vs Sanjay Omprakash Bajoriya And ...
2017 Latest Caselaw 3700 Bom

                                                                                                             AO 45-16J.odt
                                                            1


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

                     APPEAL AGAINST ORDER NO.: 45 OF 2016

             Purushottam Narayan Mahajan
             Aged about 79 years, Occ.: Retired life
             R/o Mahajan Wadi, Telhara
             Tq. Telhara, District-Akola.          ....... APPELLANT

                        ...V E R S U S...

 1]          Sanjay Omprakash Bajoriya
             Aged about 41 years, Occ.: Business
             R/o Murtizapur Road, Akola
             Tq. And Distt. Akola.

 2]          Viplove Gopikisanji Bajoriya
             Aged about 31 years, Occ.: Business
             R/o Murtizapur Road, Akola.         ......                                    RESPONDENTS

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          Shri. K. P. Mahalle, Advocate for Appellant.
          Shri. M. G. Sarda, Advocate for Respondents 
 -------------------------------------------------------------------------------------------

             CORAM :  DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J. 

             DATE    :  28 th
                              JUNE, 2017.

 ORAL JUDGMENT

The only issue raised for consideration in this appeal

is whether the trial Court, having found that the order passed by it

was not correct, can rectify the said error and set aside its own

order?

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2] In order to appreciate the rival submissions advanced

by both the parties on this issue, it can be stated that this appeal is

directed against the order dated 25.8.2015 passed by Civil Judge,

Senior Division, Akola in M.J.C. No. 937/2014. The said

application was filed by the plaintiff seeking restoration of the suit

under Order-XXXIX Rule-11(2) of the Code of Civil Procedure.

The said suit bearing No. 51/2014 was filed by appellant against

the respondents for specific performance of the contract on the

basis of an agreement to sale dated 22.11.2012. By the said

agreement, the defendant had agreed to sell 36R portion of the

agricultural land out of survey No.64-C, situated at village

Gadegaon, Taluka and District Akola for consideration of

Rs.1,05,00,000. As per the term and condition of said agreement

of sale, the land was to be measured afresh by the respondent-

defendant through Government measurer and the possession was

to be handed over by executing sale-deed for total consideration

of Rs.79,00,000/- on or before 21.10.2013. As per the agreement,

the earnest amount of Rs.26,00,000/- was already paid. As the

defendant did not get the land measured, the sale-deed could not

be executed and hence, the plaintiff filed suit for specific

performance of the contract showing his readiness and willingness

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to perform his part of the agreement.

3] The defendant appeared in the suit and filed

application at Exh.13 showing his willingness to get the land

measured afresh by the government measurer and to file a map

within 15 days. He also showed his willingness to perform his part

of contract i.e. to execute the sale-deed provided the plaintiff

deposits the balance amount of consideration within 15 days after

the measurement map was filed on record. The said application

was decided by the trial Court by its order on 12.8.2014, thereby

directing the defendant to measure the land afresh through

Government measurer and file the map within 15 days. The

plaintiff was directed to keep ready the outstanding amount for

depositing in the Court on the day when defendant submits the

map.

4] Accordingly, as per the defendant, he got the land

measured and filed map in the Court. However, as plaintiff failed

to deposit the outstanding amount of consideration in the Court,

on the application of defendant filed under Order XXXIX Rule-11,

of C.P.C., the trial Court vide its order dated 7.10.2014, dismissed

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the suit for default, in pursuance of the provision of Order-XXXIX

Rule-11 of the Code of Civil Procedure by observing that the

plaintiff could have challenged order below Exh.13 by filing

appeal, if he had any grievance against the same or he could have

applied for modification of the said order. The plaintiff had not

done either of it. Hence, it was necessary to dismiss the suit for

non-compliance of the order of the Court.

5] Subsequent thereto, this application came to be filed

by the plaintiff, bearing M.J.C. No. 937/2014, seeking restoration

of the suit under Order-XXXIX Rule-11(2) of the Code of Civil

Procedure. This application came to be resisted by the defendant,

contending inter-alia that unless the order of the Court was

complied with, as required under Order-XXXIX Rule-11(2) of the

Code of Civil Procedure, the application filed by the plaintiff for

restoration cannot be entertained.

6] The trial Court, however, took note of the fact that

though the land which was agreed to be sold was survey no. 64-C,

the map of measurement which was filed on record by the

defendant was pertaining to survey no. 64/A-3. Moreover, the

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said map showed that defendant was in possession of only 35R

land whereas, he has agreed to sell to the plaintiff 36 R. land. The

learned trial Court found that as these facts were not brought to

its notice when it passed the order of dismissing the suit under

Order-XXXIX Rule-11 of C.P.C. for non-compliance of the order.

Learned trial Court held that the order of dismissing the suit was

therefore an error which needs to be rectified and aggrieved party

should not be dragged to file revision and appeal before the

superior Court. Accordingly, vide its impugned order, learned trial

Court restored the suit to its original stage, to be decided on

merits, by imposing the same conditions which were imposed

earlier, while passing the order below Exh.13. The restoration was

allowed subject to costs of Rs.10,000/-.

7] This order of the trial Court is the subject matter of

the appeal. According to learned counsel for the appellant-

defendant, on the first day of appearance in the Court, the

defendant has shown his readiness and willingness to perform his

part of the contract. He also agreed to get the suit land measured

through Government measurer. Accordingly, he filed the

application at Exh.13, directing the plaintiff to deposit the balance

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amount of consideration and showing his willingness to execute

the sale-deed within 15 days of deposit of balance consideration.

Plaintiff vide his reply agreed to pay balance consideration

amount within 15 days after filing of measurement sheet by the

defendant. Accordingly, trial court passed order below Exh.13.

However, though defendant got measured the suit land and filed

measurement sheet, plaintiff failed to pay or deposit the balance

amount of consideration. Hence, on the application of defendant,

the trial Court dismissed the suit under Order-XXXIX Rule-11 of

the Code of Civil Procedure.

8] According to learned counsel for appellant-defendant,

therefore, trial Court has committed a grave error in setting aside

the order of dismissal of the suit and restoring the suit, that too,

without the plaintiff making any compliance with the order which

was passed below Exh.13 directing the plaintiff to deposit the

outstanding amount of consideration within 15 days from the

measurement map produced in the case.

9] Per contra, learned counsel for respondent-plaintiff

has supported the order of the trial Court by pointing out that

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there was no such order passed by the trial Court of directing the

plaintiff to deposit the outstanding amount of consideration. As

per the said order, plaintiff was only directed to keep ready

outstanding amount for depositing in the Court. Further, it is

submitted that it is the defendant who has not complied with the

order. Defendant was to measure the land which was agreed to be

sold. However, he has measured some different land and he is also

not found to be in possession of the area which was agreed to be

sold. Hence, according to learned counsel for respondent-plaintiff,

as trial Court has rightly corrected its own order, no interference

is warranted in the impugned order passed by the trial Court.

10] In the light of these rival submissions advanced by

learned counsel for the parties, it becomes necessary to reproduce

the provisions of Order-XXXIX Rule-11 of the Code of Civil

Procedure (Bombay Amendment) which read as follows:

Rule-11:- where any party to a suit or proceeding gives any undertaking to the Court to do or to refrain from doing a thing during the pendency of the suit or proceeding, and such party commits any default in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, the Court may dismiss the suit or proceeding, if the default or contravenes or breach is committed by the plaintiff or the applicant, or strike

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out the defences, if the default or contravention or breach is committed by the defendant. (2):- If sufficient cause is shown and on such terms and conditions as it may deem fit to impose, restore the suit or proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Court.

11] In the instant case, the submission advanced by

learned counsel for the defendant is two fold; in the first place, it

is submitted that plaintiff has not deposited the balance amount of

consideration within 15 days after the defendant has filed

measurement map in the Court and thus committed the breach of

the express order passed by the Court. Moreover, plaintiff has also

committed the breach of the undertaking given to the Court on

29.10.2014 vide Exh.24. It is submitted that the learned counsel

for plaintiff has filed an application at Exh.24 on 29.10.2014,

stating therein that, as per the Court's order passed below Exh.13,

the plaintiff has to deposit sale consideration amount. However,

considering huge amount of lakhs rupees which has remained

outstanding, plaintiff requires 15 days time for depositing the said

amount. It was further stated in the said application that counsel

for the plaintiff has contacted the plaintiff and informed him that

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today the undertaking was required to be submitted in the Court,

in turn plaintiff informed his counsel that plaintiff was not

available on that day and further instructed his counsel to submit

undertaking under the signature of counsel. It was further stated

that, accordingly the plaintiff through his counsel undertakes that

the said amount would be deposited within 15 days from that day

and the prayer was made to allow the 15 days time for deposit of

the said amount. The order passed on this application shows that

the time was accordingly granted.

12] The grievance of the learned counsel for the

defendant is that the plaintiff has thus not only committed default

in compliance of the order passed by the trial court below Exh.13

on 12.8.2014 but further he has also committed the breach of this

undertaking given to the Court on 29.10.2014. Hence, the trial

Court was well justified in dismissing the suit for default under

Order-XXXIX Rule-11 of the Code of Civil Procedure. It is his

submission that unless the plaintiff has made amends in the

default or contravention or breach to the satisfaction of the Court

in respect of the said order, the trial Court could not have restored

the suit. In this case, it is urged that the plaintiff has till today not

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made any amends in the default. He has neither deposited the

outstanding amount of consideration, either as per the order

passed by this Court, nor even as per the undertaking given by his

counsel. Hence, the impugned order passed by the trial Court

restoring the suit already dismissed, needs to be quashed and set

aside.

13] The second submission advanced is that; if the earlier

order passed by the court on 12.8.2014 was not challenged by the

plaintiff, then it was not proper on the part of trial Court to set

side the said order, on the count that some error was found in the

said order as certain facts were not brought to its notice.

According to the learned counsel for the defendant, by setting

aside its own order of dismissal of suit, that too without the

condition laid down in Rule-11(2) Order XXXIX of the Code of

Civil Procedure being complied with, the trial Court has acted

illegally. Hence, the impugned order passed by the trial Court

needs interference.

14] Now while considering the first submission, in order

to understand whether by its order below Exh.13, the trial Court

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has given direction to the plaintiff to deposit the outstanding

amount in the Court, it is necessary to quote the relevant order

which reads as follows:

"Defendant do measure the property afresh through Government measurer and to file the map within 15 days and plaintiffs to keep ready outstanding amount for depositing in the Court on the date when defendant submits the map".

15] Bare perusal of this order makes it clear that there

was no express direction to the plaintiff by this order to deposit

the outstanding amount in the Court on the date when defendant

submits map. The plaintiff was merely directed to keep ready

outstanding amount and there was no order to the plaintiff to

deposit the same in the Court on the date when defendant submits

map. Therefore, there was no such express direction, of which the

plaintiff can be said to have committed the default, which could

have resulted into dismissal of suit under Order-XXXIX Rule-11 of

the Code of Civil Procedure.

Secondly, if at all any undertaking was given by

learned counsel for plaintiff, vide application at Exh.13 in

pursuance of the said order, it has to be held that, if the said order

itself was not directing the plaintiff to deposit the amount but only

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to keep it ready, that undertaking does not have much significance

so that its breach should result in dismissal of the suit.

16] Significantly and most importantly, as per the order

passed below Exh.13 on 12.8.2014, the defendant was to measure

the suit property afresh through Government measurer. Now the

property which was to be measured afresh was the property,

which was agreed to be sold. Agreement to sale is clear to show

that the property which was agreed to be sold was from the

portion of the land bearing survey no. 64-C and it was extent to

36R. However, the measurement, map copy of which, was

produced on record by the defendant, as observed by trial Court,

was of survey no. 64/A-3. Therefore, it follows that it was not of

the land which was agreed to be sold.

17] Moreover, as per the said map, the area found in

possession of the defendant was only 35R whereas, as per the

agreement, the portion of 36R was agreed to be sold by defendant

to plaintiff. Therefore, strictly speaking, the map which was

produced on record by the defendant was itself in dispute, as it

cannot be categorically said to be of the property which was

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agreed to be sold. The order directing plaintiff to keep ready the

outstanding amount was subject to condition that the defendant

produces map of the measurement of the suit property afresh

through Government measurer. If the map produced on record by

the defendant was not of the property which was agreed to be

sold, and it was also not disclosing that the entire land

admeasuring 36R agreed to be sold by the defendant, was in his

possession, then there was no sufficient justification for the

plaintiff to seek modification of the order passed by the trial Court

dismissing his suit for default under Order-III Rule-11 of C.P.C.

and at least for the trial Court to reconsider the said order having

regard to the facts, subsequently brought to his notice.

18] The trial Court has, therefore, in its impugned order

rightly held that all these facts were not brought to its notice

when it passed the order of dismissal of suit in default for non-

compliance, under the provision of Order-XXXIX Rule-11 of the

Code of Civil Procedure. Now once these errors which had crept

into its order were brought to the notice of the trial Court, the

trial Court was duty bound to correct its own order. As rightly

observed by the trial Court, if some error is appearing in the

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record of the Court then it is for the Court to rectify the said error

and give an opportunity to both the parties to agitate the

controversy involved in the matter on merit. As a matter of fact,

the trial Court found that the order which it has passed below

Exh.13 of directing the plaintiff to deposit the outstanding amount

of consideration, could not have been passed in view of judgment

in this Court in the case of "Sanjay Agarwal Vs. Beekalane

Fabrics (P) Ltd., 2007(6) Bom.C.R. 695(O.S.).

19] Therefore, the trial Court was satisfied not only on

the factual position but also in view of the legal position after

hearing learned counsel for the parties, that it was a fit case to

correct its own error and once again give an opportunity to both

the parties to agitate their case, instead of dismissing it in default

on technical ground. Perusal of the impugned order passed by

trial Court, shows that the trial Court has restored the suit on the

same terms and conditions which were imposed while passing the

order below Exh.13 and also by imposing the cost of Rs.10,000/-.

20] Having regard to the entire facts and evidence on

record, it cannot be said that the impugned order passed by trial

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Court is manifestly illegal or perverse so as to warrant interference

therein

In view thereof, the appeal holds no merit and hence,

stands dismissed.

JUDGE

RGIngole