Bombay High Court
Smt.Vimladevi Purshottam ... vs Smt.Shirin Taherali on 28 January, 2021
Bench: P. K. Chavan
FA-20-2021.doc
Uday S. Jagtap
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 20 OF 2021
WITH
CIVIL APPLICATION NO. 2752 OF 2018
IN
FIRST APPEAL NO. 20 OF 2021
Vimladevi Purshottam Sarwagi .. Appellant
Vs.
Shirin Taherali .. Respondent
.....
Mr. Venkatesh Dhond, Senior Counsel a/w Mr. Nishant Sasidharan,
Mr. Darshan Mehta and Ms. Shrusti Dalal i/b Dhruve Liladhar & Co.
for the appellant
None for the respondent
CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 15 th JANUARY, 2021
PRONOUNCED ON : 28th JANUARY, 2021
P. C.
1. Heard the learned Counsel for the appellant - original
plaintiff for some time.
2. A suit for specific performance of Agreement of Sale was
filed by the appellant against the respondent - defendant in
respect of open plot, being plot no.34, admeasuring 344.44 sq.
meters i.e. 50 x 72 sq.fts., bearing survey No.149(part), plot
no.1(part) and plot no.2 (part) and Sheet No.77 (part) of Malad
(hereinafter referred to as "suit plot" for short). The plot is
situated partly in village Pahadi and partly in village Malad.
3. The facts in short are summarized as follows.
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4. The appellant and the respondent had entered into an
Agreement of Sale in respect of suit plot in the year 1976 for a
consideration of Rs.48,000/-. The appellant had paid a sum of
Rs.5,000/- as earnest money.
5. On 18th January, 1977, the appellant's advocate requested
the advocate for the defendant to send the title deeds of the suit
plot to enable him to investigate the respondent's title. On 28 th
January, 1977, the respondent had forwarded the title deeds of the
suit plot as asked for. The appellant thereafter published a public
notice of the suit plot in daily newspapers "Free Press Journal" and
"Janmabhoomi". After some negotiations between the parties,
brother-in-law of the respondent namely, Mr. Bootwala by his
communication dated 24th September, 1977 agreed to execute
indemnity bond in favour of the appellant. Subsequently, by
communication dated 11th March, 1978 and 3rd July, 1978,
advocate for the appellant repeatedly requested and reminded the
respondent's advocate to approve the draft conveyance.
Thereafter, despite request, the respondent failed to obtain No
Objection Certificate from the competent Authority under the
Urban Land (Ceiling and Regulation) Act. After negotiation
between the parties, the appellant's advocate by communication
dated 3rd November, 1979 forwarded the draft of indemnity, power
of attorney, declaration and letter of possession to the respondent's
advocate for their approval. On 2 nd April, 1980, the plaintiff's /
appellant's advocate went to call upon the respondent's advocate
to have the draft duly approved so that the same could be
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executed against the payment of the compliance of the purchase
price in respect of the suit plot. The respondent did not comply
with the same. On 16th May, 1980, advocate for the appellant had
requested the respondent's advocate to expedite the matter for
completion of Sale, however, the respondent neglected to comply
and, therefore, the present suit has been filed.
6. In the written statement, the defendant has taken a plea of
limitation as well as the jurisdiction. It is also the contention of
the defendant that there was no cause of action to file a suit and
even the claim of damages is not maintainable. The respondent
has specifically denied all the averments as regards negotiations in
the month of October and November, 1979. The respondent has
also denied that the appellant was always ready and willing to
perform her part of agreement.
7. The learned trial Court framed the following issues and
recorded his findings, which read as under :-
Sr. ISSUES FINDINGS
No.
1. Whether the agreement for sale dated Does not survive
December, 1976 (Ex.B to the plaint) is
valid, subsisting and binding upon the
plaintiff and defendant ?
2. Whether the plaintiff duly performed her Does not survive
obligation under the said agreement ?
3. Whether the plaintiff is and has always Does not survive
been ready and willing to perform her part
of obligation under the said agreement?
4. Whether the plaintiff, pursuant to the said In the affirmative
agreement, has already paid the earnest
money of Rs.5,001/- to the defendant?
5. Whether the plaintiff has already paid In the negative
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Rs.8,000/- to the unauthorised occupant
on the suit property and is entitled to claim
the same from the defendant ?
6. Whether the defendant failed and In the affirmative
neglected to perform her obligation under
the agreement and convey the property to
the plaintiff ?
7. Whether the plaintiff is entitled for specific In the negative
performance of the said agreement for sale
being Ex.B to the plaint?
8. In case the plaintiff is not entitled for In the negative
specific performance of the agreement,
whether the plaintiff proves that she is
entitled for the damages.
9. What relief and what order ? Suit stands
dismissed.
8. This can be said to be a judgment which is quite perverse as
neither the trial Court has properly discussed the legal issues on
jurisdiction and limitation nor the findings are supported with any
discussion on evidence. However, the learned trial Court has
dismissed the suit. The reasons assigned by the trial Court are not
only perverse but illegal and, therefore, need to be set aside.
9. Needless to say that the matter needs to be remanded to the
trial Court in view of Order 41 Rule 23 of the Civil Procedure
Code.
10. As such the following order is expedient :-
ORDER
(a) The impugned judgment and decree, dated 27 th
September, 2017 passed in Suit No. 7436 of 1980 by the City
Civil Judge, Greater Mumbai is quashed and set aside.
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(b) The suit shall be re-admitted under its original number in
the register of civil suits.
(c) The case is remanded to the trial Court with the
directions that the trial Court shall give its findings on each of
the issues of facts and law after giving due opportunity to the
respective parties.
(d) The evidence recorded by the trial Court during the
original trial shall subject to all just exceptions, be evidence
during the trial after remand.
(e) The trial Court is directed to expedite the hearing of the
suit and shall endeavor to decide and dispose of the same
within a period of six months from the first date of the
appearance of the parties.
(f) The trial Court shall not grant unnecessary adjournment
to the parties.
(g) The parties shall co-operate in expeditious disposal of the
suit.
(h) The parties shall appear before the trial Court on 15 th
February, 2021 at 11.00 a.m.
11. The appeal is disposed of in the aforesaid terms.
12. In view of the disposal of the appeal, pending civil
application does not survive and the same is disposed of.
(PRITHVIRAJ K. CHAVAN, J.)
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After pronouncement of the order, Mr. Darshan Mehta,
learned Counsel for the appellant has drawn my attention to an
order passed by this Court in Notice of Motion No. 1375 of 1980 in
Suit No.1353 of 1980 (Exh. B, page 39) passed by Justice Lentin,
(as he was then) on 14th April, 1981, which reads thus :-
"Through her learned Counsel, the defendant gives an
undertaking to the Court in terms of prayer (b) of the
motion with the exclusion of the words bracketed in red
pencil, namely "dealing with" and "or allow any one else to
use the same in any manner whatsoever" and with the
addition of the words "or induct any third party in the suit
property or any part thereof". On the above undertaking
being given, Mr. Subramaniam does not press the motion.
No order on the motion save and except that the costs of
the motion be costs in the cause".
The said order shall continue to operate till the
decision of the suit on merits.
(PRITHVIRAJ K. CHAVAN, J.)
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