Shivaji Fakira Bhambare vs Dashrath Baburao Naik
2022 Latest Caselaw 1081 Bom

Rane                  1/16                          APPEAL-71-2022.odt
                                                Monday, 31 st January, 2022




     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            CIVIL APPELLATE JURISDICTION

              APPEAL FROM ORDER NO.71 OF 2022
                           WITH
              INTERIM APPLICATION 290 OF 2022

SHIVAJI FAKIRA BHAMBARE                    } APPELLANT

       V/S.

DASHRATH BABURAO NAIK                       } RESPONDENT

                             ****

Mr. Girish Godoble i/by. Ms. Shruti Tulpule, Advocate for
     the appellant.

Mr. S.M. Sabrad, Advocate for the respondent.


                        CORAM : SANDEEP K. SHINDE J.
                                (through Video Conference)


                      RESERVED ON : JANUARY 24th, 2022.

                      PRONOUNCED ON: JANUARY 31st, 2022.



JUDGMENT :

1. This Appeal under Order XLIII, Rule 1(r) (Bombay

Amendment) of the Code of Civil Procedure, 1908 ('CPC' for

short) challenges, the order dated 10th December, 2021, by Rane 2/16 APPEAL-71-2022.odt Monday, 31 st January, 2022

which the learned District Judge-1, Niphad, District: Nashik,

refused to restore the Regular Civil Appeal No.78 of 2012,

which was dismissed for committing breach of the

Undertaking to the Court, noted in the, order dated 27th April,

2011 passed in the First Appeal No.1638 of 2006.

2 In brief, facts of the case are as under;

Appellant was a defendant in Special Civil Suit No.41

of 2004, instituted by the respondent/plaintiff, seeking decree

of specifc performance of the contract dated 23rd April, 2004

qua land admeasuring 1H 83R (hereinafter called 'Suit Land').

Suit was decreed on 1st April, 2006. Whereafter, appellant fled

First Appeal No.1638 of 2006 before this Court. It was

admitted. Pending appeal, respondent/plaintiff, moved Civil

Application No.836 of 2011 seeking, order of injunction to

restrain the appellant, from creating third party rights in the

suit property. On 27th April, 2011, this Court passed the

following order:

" Heard learned counsel for the parties. Learned counsel appearing for the respondents on instructions of the respondents states that the respondents do not intend to create third party rights in respect of the suit property till disposal of the Appeal. He further Rane 3/16 APPEAL-71-2022.odt Monday, 31 st January, 2022

submits that permission may be granted to create a charge on the suit property for the purpose of obtaining loan. Such a blanket permission cannot be granted as of today and as and when occasion arises, it will be open for the respondents to apply to the Court for seeking permission to create a charge on the suit property. If such an application is made, it will be considered on its own merits. The statement made by learned counsel for the respondent is accepted. In view of this statement, it is not necessary to grant any relief in this application.

Subject to what is observed above, application is disposed of."

(emphasis supplied)

Later, due to enhancement in the pecuniary jurisdiction of the

District Court, the First Appeal No.1638 of 2006 was

transferred and re-numbered as Regular Civil Appeal No.78 of

2012 in District Court at Niphad.

3. Inspite of Undertaking to the Court, appellant frstly

in January, 2015 got mutated his wife's name, Mrs.

Yamunabai Shivaji Bhambare as a co-owner in the revenue

records of the suit property vide Mutation Entry No.3488.

Whereafter, in breach of Undertaking, appellant permitted

Dhanlaxmi Urban Co-operative Credit Society to create a

charge on the suit property against the loan of Rs.50,000/-

availed by him without permission of the Court. Thus, taking Rane 4/16 APPEAL-71-2022.odt Monday, 31 st January, 2022

note of breach of Undertaking dated 27th April, 2021 (as

reproduced hereinabove), respondent-plaintiff, moved an

application, below Exhibit-48, under Order 39 Rule 11(1) of the

CPC, seeking dismissal of Regular Civil Appeal No.78 of 2012.

The learned District Judge, Niphad vide order dated 30th

January, 2019, allowed the application, below Exhibit-48, and

as a consequence, dismissed the Regular Civil Appeal No.78 of

2012.

4. The Order dated 30th January, 2019 was challenged

by the appellant-plaintiff, simultaneously in two proceedings;

(i) Appeal from Order (St.) No.14411/2019 and another (ii)

Second Appeal (St.) No.1862/2019. On 26 th November, 2019,

following order was passed :

"1. Heard learned counsel for the respective parties.

2. Admit.

3. No interim relief.

4. The appellant is at liberty to adopt procedure as contemplated under Sub-Rule 11 of Order 39 of Code of Civil Procedure."

. So far as proceedings in the Appeal from Order are Rane 5/16 APPEAL-71-2022.odt Monday, 31 st January, 2022

concerned, appellant was granted liberty to adopt proceedings

contemplated under Sub-Rule (2) Rule 11 of Order 39 of CPC.

Pursuant to the said liberty, appellant moved a Miscellaneous

Civil Application No.75/2019 under Order 39 Rule 11(2) of the

CPC, seeking restoration of Regular Civil Appeal No.78/2012.

5. Learned District Judge vide impugned order dated

10th December, 2021, rejected the Miscellaneous Civil

Application, whereby he declined to restore Regular Civil

Appeal. Hence, aggrieved plaintiff, has fled this Appeal from

Order.

6. Heard Mr. Godbole, learned Senior Counsel for the

appellant and Mr. Sabrad, learned Senior counsel for the

respondents.

7. To appreciate the arguments of the respective

Counsel, it would be appropriate to re-produce provisions of the

Order 43, Rule 11(1) and (2) of the CPC:

"11. Procedure on parties defying orders of Court and committing breach of under-taking to the Court-

Rane 6/16 APPEAL-71-2022.odt Monday, 31 st January, 2022

(1) Where the Court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding, or 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 a 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, if the default or contravention or breach is committed by the plaintiff or the applicant, or strike out the defences, if the default or contravention or breach is committed by the defendant or the opponent.

(2) The Court may, on suffcient cause being shown and on such terms and conditions as it may deem ft to impose, restore the suit or proceeding or may hear the party in defence, contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Court.

Provided that before passing any order under this sub rule notice shall be given to the parties likely to be affected by the order to be passed."

8. Rule 11 of Order 39, as introduced by the Bombay

Amendment, provides for procedure on parties defying orders

of the Court and/or committing any breach of the Undertaking

to the Court. Mr. Godoble, learned Counsel for the appellant

submitted that, sub-rule (2) of Rule 11 of Order 39 of the CPC,

empowers the Court to restore the suit or proceedings, if the

party that has been responsible for contravention of breach of

Undertaking, makes amend for the contravention or breach, to

the satisfaction of the Court. Thus, submitted that, if the suit is Rane 7/16 APPEAL-71-2022.odt Monday, 31 st January, 2022

dismissed for committing the breach of the Undertaking, yet, if

the party responsible, remedied the breach or corrects the

mistake, Court is empowered to restore the Suit on such terms

and conditions, as it may deem ft to impose. Mr. Godbole,

submitted that the appellant has remedied the breach and set

right the position and therefore, there was no impediment, to

restore the Appeal. In support of these submissions, Mr.

Godbole would rely on the registered gift-deed, dated 13 th

December, 2019 executed by Yamunabai Shivaji Bhambare

(wife of the appellant), in favour of appellant, by which she

gifted, her interest in the suit property acquired or accrued

upon entering her name in the record of rights. Mr. Godbole,

therefore submitted, in this manner, mistake has been set right

and at the present time, appellant is sole owner of the suit

property. Therefore, contention is that, character of the suit

property has been restored, as that was, prior to alteration of

records of right and in this way suit property has been

preserved. In the alternative, Mr. Godbole submitted that,

even otherwise suit property being self-acquired property of

the appellant, mere revenue entry in the name of his wife as a Rane 8/16 APPEAL-71-2022.odt Monday, 31 st January, 2022

co-owner, neither creates nor extinguishes his title to the suit

property and therefore appellant has not created third party

rights. Mr. Godoble, would also submit that the loan amount of

Dhanalaxmi Urban Co-operative Credit Society has been repaid

and the charge on the suit property has been deleted.

Submission is that, the learned District Judge, while exercising

jurisdiction under sub-rule (2) Rule 11 of Order 39 of the CPC,

has fully ignored that the appellant has remedied the breach of

Undertaking. Nextly, he submitted that, First Appeal being

substantive statutory right of the appellant, in consideration of

the facts of the case and in the interest of justice, order dated

10th December, 2021 passed in exercise of jurisdiction under

sub-rule 2 Rule 11 of Order 39 of CPC be quashed and set aside

and Regular Civil Appeal No.78/2012, be restored to fle on

such terms and conditions, the Court may deem it proper.

9. Mr. Sabrad, learned Counsel for the respondent,

justifed the impugned order and would submit, that inspite of

the Undertaking to this Court, the appellant created rights in

his wife's favour deliberately and that too in breach of order Rane 9/16 APPEAL-71-2022.odt Monday, 31 st January, 2022

dated 27th April, 2011 passed by this Court. Mr. Sabrad, nextly

submitted that, after recording wife's name as a co-owner,

charge of Dhanlaxmi Credit Co-operative Society, was

permitted to be created on the suit property without court's

permission. It was another breach. Mr. Sabrad, therefore

submitted, acts and/or omissions of the appellant were willful

and in complete disregard to order of and/or Undertaking to

the Court. Mr. Sabrad, contended, besides, creating third party

rights, the appellant, through his son and daughter, sought

their impleadment as party respondents in Regular Civil

Appeal No.78/2012. Mr. Sabrad, submitted that, all possible

efforts were made by the appellant to frustrate the Decree by

one way or another and has not approached the Court with,

clean hands and as such the order impugned cannot be faulted

with and no interference is called for in the said order.

10. I have carefully considered the submissions of the

learned Counsel for the parties and perused the material and

the orders passed in various proceedings between the parties

at different stages. The fact cannot be ignored that the Rane 10/16 APPEAL-71-2022.odt Monday, 31 st January, 2022

possession decree in suit for specifc performance of contract,

has been passed in favour of respondent-plaintiff in 2006.

Whereafter, in First Appeal, order dated 27 th April 2011,

recorded appellant's Undertaking that, he would neither create

third party interest in the property till the disposal of Appeal

nor would create, charge on it, without the permission of the

Court. Inspite of this Undertaking, appellant caused to enter

his wife's name in the record of rights, as a co-owner.

Application, fled by the appellant in the offce of Tahsildar for

recording mutation entry, does not disclose his Undertaking to

this Court, nor Affdavit fled in support of the application,

refers to pending First Appeal proceedings. Although, the

entry in the revenue record does not confer title, on whose

name appears in the records of rights, yet, act and/or

omissions, on the part of the appellant, were in clear breach of

Undertaking to this Court, the obvious purpose of which was to

frustrate the Decree. Going one step ahead, leave aside breach

of Undertaking, it may be noted that, appellant's son and

daughter also sought their impleadment in Appeal as

necessary parties, claiming undivided share in the suit Rane 11/16 APPEAL-71-2022.odt Monday, 31 st January, 2022

property, although evidence shows, it was a self-acquired

property of the appellant. The impleadment request was

rejected even by this Court in Writ Petitions No.1202/2016 and

1204/2016 fled by appellant's married daughter and son.

After which, appellant's son and daughter, sought review of

orders passed in the Writ Petitions through the same Advocate

who now, represents the appellant. These facts, if taken

together, reinforces the conclusion that, appellant's

acts/omissions, were not bonafde but willful, deliberate and

the plain purpose was to frustrate the Decree.

11. Here the question, falls for consideration, is Whether,

(1)appellant has shown suffcient cause for restoring

the appeal, AND

(2) Gift-Deed dated 13th December 2019, amends or

set-right the breach.

Thus, to be understood, that, party that has been responsible to

breach has to show, that breach was not deliberate or willful

and the circumstances, in which he was compelled to commit

breach. Therefore, if the facts of the case indicate that, breach Rane 12/16 APPEAL-71-2022.odt Monday, 31 st January, 2022

of Undertaking has been committed, not in compelling

circumstances or in the circumstances beyond the reach and

although the party responsible for breach, amends the breach,

by and that itself, he cannot seek restoration of the suit/

proceedings dismissed for committing breach. In essence, the

expression "suffcient cause" used in Rule-2 is to be read and

understood in the context of the circumstances, in which a

breach has been committed. Therefore, if a party commits

willful default of the Undertaking, he cannot be permitted to

take advantage of his own wrong or else it would frustrate the

object of the Rule 11 of Order 39 of Civil Procedure Code.

12. Indisputably, respondent-plaintiff, moved an

application below Exhibit-48 under Rule 11(1) of Order 39 on

29th January 2018, seeking dismissal of Appeal for breach of

Undertaking. Appellant fled a reply to it, in February, 2018.

However, by then, in 2015, appellant had permitted Co-

operative Credit Society to create a charge on the suit property,

without court permission, as well, had entered his wife's name

as a co-owner in record of rights of the suit land. Be it noted Rane 13/16 APPEAL-71-2022.odt Monday, 31 st January, 2022

that, paragraph-3 of the reply, appellant denied the

'Undertaking' and also denied statement made by his

Advocate, that appellant would not create third party interest

in the suit land. Factually speaking, contents of para-3 of reply,

were nothing less then contemptuous, to read as under :

(emphasized)

. Thus, it could be seen from reply that, appellant

justifed his acts by ignoring and contending that, contents of

Undertaking were not true and his Advocate did not gave

Undertaking as recorded in order. If that be so, now the

appellant cannot argue that, entry in record of rights does not

confer title on person whose name has been recorded and

further appellant has set-right the mistake. This fact, refects Rane 14/16 APPEAL-71-2022.odt Monday, 31 st January, 2022

on the conduct of the appellant. Additionally, it may stated

that, it is only after 29th November, 2019, when this Court

declined to stay the execution of the Decree, appellant mend

his ways and got executed gift-deed in his favour on 12 th

December, 2019, followed by an application fled on 19 th

December, 2019 under sub-rule (2) Rule 11 of Order 39 of CPC,

in view of the liberty availed/granted by this Court.

13. The facts aforestated therefore show, the appellant

mended his way to remedy the breach of Undertaking, as a last

resort, when this Court declined to stay the execution of

Decree and refused to restore the Civil Appeal. Therefore,

acts/omissions and conduct of the appellant, was, 'relevant

fact', under Section 8 of the Evidence Act, as it has infuenced

'fact-in-issue' i.e. whether appellant has shown, suffcient cause

for restoring the Appeal, that was dismissed for committing

breach of Undertaking.

14. The Hon'ble Apex Court in the case of Babbar Sewing

Machine Company Versus. Trilok Nath Mahajan, AIR 1978 SC Rane 15/16 APPEAL-71-2022.odt Monday, 31 st January, 2022

1436 has held that;

". An order striking out the defence under Order 11 Rule 21 of the

Code, should therefore not be made unless there has been

obstinacy or contumacy on the part of the defendant or willful

attempt to disregard the order of the Court and Rule must be

worked with caution and may be made use of as last resort.""

15. The facts born out of the record, unerringly point

to, willful 'breach of Undertaking by the appellant'. His

reply to application (reproduced in para-12) shows,

appellant did not intend at all, to mend the

breach/mistake. It is clearly evident from the, gift-deed

(dated 13th December, 2019) which has been executed, only

after this Court, declined to stay the execution of the

decree. It was afterthought. Thus, to be held, the breach

was "willful" and not committed in compelling

circumstances. Obviously, facts of the case do not show

'suffcient cause' to restore the Appeal. Therefore, order

impugned requires no interference. In the result, Appeal Rane 16/16 APPEAL-71-2022.odt Monday, 31 st January, 2022

from Order is dismissed.

16. With disposal of the Appeal from Order,

Interim Application No.290/2022 becomes infructuous

and does not survive. The same is accordingly disposed of.

17. At the request of the appellant, execution of

possession warrant issued in Special Darkhast

No.23/2007, pending on the fle of Joint Civil Judge Senior

Division, Niphad, is stayed for a period of two weeks i.e.

uptil 14th February, 2022.

         Digitally
         signed by
         NEETA
NEETA    SHAILESH
SHAILESH SAWANT
SAWANT Date:
         2022.01.31
         16:27:26                                         (SANDEEP K. SHINDE, J.)
         +0530