Bharatkumar Mohanlal Khanpara vs Mayurbhai Prabhudas Gondalia
2021 Latest Caselaw 2999 Guj

        C/SCA/17540/2019                                       JUDGMENT




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 17540 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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1    Whether Reporters of Local Papers may be allowed                    No
     to see the judgment ?

2    To be referred to the Reporter or not ?                             No

3    Whether their Lordships wish to see the fair copy                   No
     of the judgment ?

4    Whether this case involves a substantial question                   No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                   BHARATKUMAR MOHANLAL KHANPARA
                                Versus
                    MAYURBHAI PRABHUDAS GONDALIA
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Appearance:
MR BHAVESH P TRIVEDI(2731) for the Petitioner(s) No. 1
MR RR TRIVEDI(941) for the Petitioner(s) No. 1
VMP LEGAL(7210) for the Respondent(s) No. 1,2,3,4
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 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                               Date : 22/02/2021

                               ORAL JUDGMENT

1. The Petitioner - Bharatkumar Mohanlal Khanpara / Original Opponent has filed this Petition under Article 226 and 227 of the Constitution of India, for the following prayers as under:

"(a) Present petition may kindly be allowed. This Hon'ble Court may

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be kind enough to issue appropriate writ order or direction in nature of certiorari or mandamus quashing and setting aside impugned order Dt. 13-8-2019 passed by Ld. Principal Senior Civil Judge, Jetpur in Misc. Civil Application No. 19 of 2018 imposing cost upon the present petitioner.

(b) Pending admission and final disposal of present petition implementation, operation or execution of the impugned order Dt. 13- 8.2019 passed by Ld. Principal Senior Civil Judge, Jetpur in misc. civil application No. 19 of 2018 imposing cost may kindly be stayed.

(c) Any other and further relief which this Hon'ble Court deems fit may kindly be granted in the interest of justice."

2. The facts in nutshell are that the present Respondent No.1 - Mayurbhai Prabhudas Gondalia has preferred Miscellaneous Civil Application No. 25 of 2017, under the provisions of the Contempt of Court's Act, before the Learned Principal Senior Civil Judge, Gondal for initiating contempt proceedings against the present Petitioner. The said Misc. Civil Application was transferred at Jetpur and renumbered as Misc. Civil Application No. 19 of 2018.

2.1 The case of the Respondent No.1 / Original Applicant before the learned Trial Court was that Respondent No.2 - Prabhudasbhai Mohanbhai Gondalia is holding agriculture land bearing Survey No.42 paiki A 7 and 26 Gunthas and Survey No. 41/1 paiki A 3 and 32 Gunthas at village Vadasada Taluka Jetpur, District Rajkot. It is further stated in the petition that the said Prabhudasbhai Mohanbhai Gondalia transferred the said land in favour of his son Birjeshbhai Prabhudasbhai Gondalia (Respondent No.4 herein) vide Revenue Entry No.3040 and the said entry was mutated by the learned Mamlatdar, Jetpur in the year 2000.

2.2 It is further stated in the petition that being aggrieved and dissatisfied by the aforesaid mutation entry, Respondent No.1 herein - Mayurbhai Prabhudas Gondalia (Original Applicant No.1) and Respondent No.3 herein - Shantaben Prabhudas Gondalia (Original Opponent No.2) have preferred Appeal before the learned Deputy Collector, Gondal under Rule 108(5) of Bombay Land

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Revenue Rules being Land Appeal Appeal No. 179/12-13 and thereafter pursuant to the order passed by the learned Deputy Collector, Gondal dated 17.7.2013, the said appeal came to be dismissed. It is therefore submitted that in the present circumstances, there is now no land in the name of Respondent No.1 - Mayurbhai Prabhudas Gondalia.

2.3 It is further submitted by the learned Advocate for the Petitioner that the said order passed by the Deputy Collector, Gondal was not carried further and it had become final. Thereafter Respondent No.1 - Mayurbhai Prabhudas Gondalia preferred Special Civil Suit No.18 of 2017 and in the said Suit the Petitioner herein was not made party.

2.4 Learned Advocate for the Petitioner has further submitted that in the very suit, which was instituted on 21.1.2017, all the parties submitted a compromise purshis vide Exh.9 and prayed to allot share in the suit property. The learned Principal Senior Civil Judge, Gondal accepted the compromise and disposed of the suit on 8.4.2017. Thereafter the Respondent No.1 herein - Mayurbhai Prabhudasbhai Gondalia has submitted an application to the present Petitioner i.e. the Deputy Mamlatdar, Jetpur for mutation of entries as per the order passed in compromise in Special Civil Suit No. 18 of 2017 and the entry was registered as Entry No. 5129. It is submitted that the Petitioner has rejected the registration of the Entry vide order dated 29.8.2017. It is submitted that since earlier Entry No. 3040 was already mutated in the name of Brirjeshbhai Prabhudasbhai - Respondent No.4 herein and the Appeal challenging the said entry was also dismissed by the Deputy Collector, Gondal, and therefore in the date of the order the land in question belonged to only one person i.e. Birjeshbhai Prabhudas Gondalia and thus Entry No. 5129 came to be rejected. It is submitted that no appeal against the said order is preferred but straightway Misc. Civil Application for contempt is preferred. It is submitted by the learned Advocate for the Petitioner that after service of Notice of Misc. Civil Application, the Petitioner herein has submitted objection to the contempt

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application.

2.5 Learned Advocate for the Petitioner has further submitted that the learned Principal Senior Civil Judge, Jetpur vide impugned order dated 13.8.2019 has not only rejected Misc. Civil Application but has further observed that the Petitioner has deliberately refused to disobey the order of the Civil Court and has thus imposed cost of Rs.2000/- upon the petitioner for taking false defence. The present petition is therefore filed for the prayers as mentioned in paragraph 1 above.

3. Learned Advocate for the Applicant has submitted that the learned Trial Court has committed serious error in passing the impugned order. The learned Trial Court has failed to appreciate that the application for initiating proceedings under the Contempt of Court's Act is not maintainable. Learned Advocate for the Petitioner has submitted that the learned Trial Court has committed serious illegality of law and facts in not appreciating that the application moved by the Respondent No.1 herein - Mayurbhai Prabhudas Gondalia is for initiating the contempt proceedings. It is submitted that the said provisions are applicable in case if any order is passed by the High Court or the Hon'ble Apex Court. However in the present case, no such order or direction is issued either by the High Court or by the Hon'ble Apex Court. Not only this, there is no order or direction issued by the Civil Court also. Therefore, the dispute in the Misc. Civil Application lies in a very narrow compass i.e. whether any direction is issued by any court which is disobeyed. Admittedly no such direction is issued against the present petitioner. Therefore, there was no question of disobeying the directions. But unfortunately the learned Trial Court has tried to enlarge the scope of Misc. Civil application and dismissed the Application and imposing heavy cost upon the present Petitioner for taking defence. It is further submitted that the learned Trial Court has committed serious error of law in not considering that the Respondent No.2 herein - Prabhudasbhai Mohanbhai Gondalia himself is not an agriculturist, and

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therefore, he could not transfer the land, which fact was not brought to the notice of the court while recording the compromise purshis. It is therefore submitted that the compromise was hit by Section 54 of Saurashtra Gharkhed and Tenancy Act. Learned Advocate for the Petitioner has submitted that the contempt application on the face of it is not at all maintainable in the eye of law. It is further contended that the impugned order deserves to be quashed and set aside only on the ground that the decision of the Petitioner is upheld by the superior authorities.

3.1 Learned Advocate for the Petitioner has further submitted that the learned Trial Court is not correct in observing that if the implementation of the order of the court was not possible, then the present petitioner ought to have informed to the Civil Court about the facts and situation. It is submitted that the Misc. Civil Application is with regard to initiation of contempt proceedings for non-compliance of the order and no order was passed by the learned Trial Court against the present petitioner for direction or implementation of its order. Secondly in the case of execution of the order, had the petitioner been joined as party, then he ought to have informed the learned Trial Court about this aspect which is not the situation in the present case. Therefore there was no occasion for the Petitioner for informing the learned Trial Court with respect to this aspect. Therefore without appreciating the factual aspects and with pre- determined mind the learned Trial Court has passed the order which is based upon total non application of mind and therefore the impugned order is required to be quashed and set aside and the present petition deserves to be allowed.

3.1 Learned Advocate Mr. Bhavesh P. Trivedi for the Petitioner has further argued that the concerned Court has not examined the issue in true sense since everybody has right to take defence. So when the defence was taken, the Court has passed the order of cost of Rs.2000/- and also made some observations,

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which may affect the career of the the present Petitioner which is not just and proper.

4. Per contra, learned Advocate Mr. Vimal M. Patel for the Respondent has heavily opposed the arguments advanced by the learned Advocate for the Petitioner and prayed that the petition may not be entertained and may be dismissed.

5. Having heard the arguments advanced by both the sides, and with the consent of both the sides, without going into the detailed merits of the case, it appears that the revenue entry is not required to be disturbed. Further, ex facie how the contempt is made upon Petitioner is not thoroughly justified, the way in which events for Petitioner is concerned, since it is for the first time, notice to the Deputy Mamlatdar, this court is of the view that it appears that the observation and cost so imposed by the learned Trial Judge is not proper. On that basis, considering the totality of facts and circumstances of the case, the present petition succeeds and accordingly stands allowed. The order passed by the learned Principal Senior Civil Judge, Jetpur, in Misc. Civil Miscellaneous Application No. 19 of 2018 (Old No. 25 of 2017) dated 13.8.2019 is hereby quashed and set aside.

Rules is made absolute.

(A. C. JOSHI,J) J.N.W