Smt. Chhaybai Wd/O. Tulsiram ... vs Deorao S/O. Sitaram Vaidya
2021 Latest Caselaw 13230 Bom

                                                                                   WP5503.15.odt
                                                   1

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

                               WRIT PETITION NO. 5503 OF 2015


     PETITIONERS: 1 Smt. Chhayabai wd/o Tulsiram Fandi,
     Org.Applicants Aged about 70 years, Occ. Household

                               2. Sanjay s/o Tulsiram Fandi,
                                  aged about 31 years, Occ. Agriculturist,

                               3. Ratnamala d/o Tulsiram Fandi,
                                  Aged about 29 years, Occ. Household,

                               4. Hemraj s/o Tulsiram Fandi,
                                  aged about 28 years, Occ. Agriculturist,

                               5. Yogita d/o Tulsiram Fandi,,
                                  aged about 26 years, Occ. Household,

                               6. Uttam s/o Lataruji Fandi,
                                  Aged about 60 years, Occ. Agriculturist,

                                 All petitioner Nos. 1 to 6 are
                                 R/o. Sharda Chauk, Mouda, Tah. Mouda,
                                 Dist. Nagpur.

                                             ...VERSUS...

    RESPONDENT:                Deorao s/o Sitaram Vaidya
  Org.Non-applicant            aged about 73, Occ. Business & Agriculturist,
                               R/o. Near Jai Stambh, Mouda, Tah. Mouda
                               Nagpur.
     ----------------------------------------------------------------------------------------------
                       Smt. R.S.Sirpurkar, Advocate for petitioners.
                       Shri A.M.Ghare, Advocate for respondent.
     ----------------------------------------------------------------------------------------------
                                            CORAM : AVINASH G. GHAROTE, J.

                                            DATE          : 16/09/2021.



                                                                          WP5503.15.odt


     (Oral Judgment)


     1]                 Heard Mrs. Sirpurakar, learned counsel for petitioners

and Mr. Ghare, learned counsel for the respondent. The petition

challenges the order dated 30.07.2015 passed by the learned Civil

Judge, Junior Division, Mouda, whereby the application under

Section 28 of the Specific Relief Act, 1963, ("the SR Act" for short),

as filed by the Original Plaintiff/Tulsiram, in Special Civil Suit

No.1063/97, decided on 4.1.2006, for rescission of the contract on

account of non-compliance of the direction to deposit the

consideration as contained in the decree, dated 4.2.2006, has been

rejected and the application at Exh.12 filed by Deorao/Original

Defendant for rejection of the application under Section 28 of the SR

Act, has been allowed.

2] The facts in nutshell are as under -

An agreement of sale came to be executed by Tulsiram/

Original Plaintiff and his brother Uttam/Plaintiff No.2 in favour of

Deorao/Original Defendant on 20.02.1984. As the proposed

purchaser did not pay the consideration, a suit for specific

performance came to be filed by the original vendors, namely

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Tulsiram and Uttam, against Deorao, which came to be registered as

Special Civil Suit No. 1063/1997, in which a decree came to be

passed on 4.1.2006 in the following terms.

"i) The suit is partly decreed with proportionate costs.

ii) The defendant shall do pay an amount of Rs.2,00,000/- to the plaintiffs alongwith interest @ 12% per annum from the date of suit i.e. 09/10/1997 till its realization, upto 30/04/2006. If the defendant fails to make the payment within given time, the plaintiffs may recover the same by executing the decree through the court.

iii) The defendant may get the sale deed executed from the plaintiff in respect of the suit property on his own expenses, after making the payment of the above said amount and may transfer the license of Saw Mill on his name by taking an appropriate action, before the concerned Authority.

iv) A decree shall be drawn up, accordingly"

3] It is the contention of the learned counsel for the

petitioner that Deorao - the Original Defendant did not make the

deposit as directed under the decree, dated 4.1.2006, as a result of

which default, the provisoins of Section 28 of the SR Act became

attracted. The original plaintiff No.2 and the L.Rs of

Tulsiram/Original Plaintiff No.1, therefore, filed an application

under Section 28 of the SR Act, seeking rescission of the contract

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which came to be registered as MJC No. 8/2012. It was contended

that since the mandate of the decree dated 4.1.2006 was not

satisfied by depositing the amount as directed within the time given,

which was upto 30.4.2006, it was necessary to rescind the contract

by exercise of the power under Section 28 of the SR Act. In this MJC,

an application came to be filed by the Original Defendant/Deorao

for dismissal of the application under Section 28 of the SR Act.

4] Mrs. Sirpurkar, learned counsel for the petitioner

submits that the impugned order dated 30.7.2015, clearly suffers

from non consideration of the application below Exh.1 altogether for

the reason that the application below Exh.1 has not been decided on

its own merits, but has been dismissed merely upon observations

made in W.P. No. 2871/2012, and W.P No. 929/2012, which were

not germane for the purpose of deciding the application under

Section 28 of the SR Act. It is her contention that the application

under Section 28 of the SR Act has to be decided on its own merits,

uninfluenced by anything, muchless by the observations in the above

two writ petitions. By inviting my attention to the impugned order,

she submits that there is not even a whisper regarding the

consideration of the merits of the application Exh.1 based upon the

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requirements of law upon which application under Section 28 of the

SR Act has to be decided. She therefore submits that on this ground

alone the impugned order has to be quashed and set aside and the

matter needs to be remanded back to the learned court below for the

purpose of deciding the application under Section 28 of the SR Act

on its own merits.

5] Mr. Ghare learned counsel for the respondent/original

Defendant - Deorao fairly submits that except for the reliance upon

the judgments in W.P.No. 929/2012 and W.P.No. 2871/2012, the

impugned order does not dilate upon the averments made in the

application under Section 28 of the SR Act. He however faintly tries

to impress the Court by contending that the judgments in the

aforesaid writ petitions narrate the entire position in the instant

matter.

6] A perusal of the judgment in W.P.No. 929/2012 would

indicate that a challenge therein was raised to the order passed by

the Deputy Conservator of Forest, dated 7.1.2012 and the action of

putting seal on the Saw Mill which was standing upon the portion

of the suit property. In W.P.No. 2871/2012, the challenge was to the

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order dated 23.9.2009 passed by the Joint Civil Judge, Senior

Division, in MANRJE No. 48/2009, which was an application filed by

Deorao seeking permission to deposit the amount as per the decree

dated 4.1.2006. It is therefore apparent that any observations made

in the judgments in W.P.No.929/2012 and W.P.No. 2871/2012 would

have no relevance or bearing upon the issue of deciding the

application under Section 28 of the SR Act, in view of which, since

the impugned order does not dwell on the issue altogether, the same

cannot be sustained and is accordingly quashed and set aside. The

matter is remanded back to the Civil Judge, Junior Division, Mouda

for considering and deciding the application under Section 28 of SR

Act, as filed by the present petitioner, on its own merits.

7] The parties agree to appear before the learned Civil

Judge, Junior Division, Mouda on 24.9.2021, who shall thereupon

proceed to hear and decide the application under Section 28 of the

SR Act, in the manner and mode and on the parameters as

permissible in law.

8] It is made clear that MJC No. 8/2012 shall

be endevoured to be decided by the learned Court below

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within a period of one year from the date of receipt of the

order of this Court.

9] The petition is therefore, accordingly allowed in the

above terms. In the circumstances, there shall be no order as to costs.

JUDGE

Rvjalit