Gujarat High Court
Vijaybhai Shambhubhai Patel vs Sushilaben Dayalbhai on 21 June, 2021
Bench: J.B.Pardiwala
C/FA/1556/2021 JUDGMENT DATED: 21/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1556 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/FIRST APPEAL NO. 1556 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VIJAYBHAI SHAMBHUBHAI PATEL
Versus
SUSHILABEN DAYALBHAI
==========================================================
Appearance:
MR AB MUNSHI(1238) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3,4,5,6,6.1,6.2,6.3
MR RUTUL P DESAI(6498) for the Defendant(s) No. 7
==========================================================
CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 21/06/2021
Page 1 of 17
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C/FA/1556/2021 JUDGMENT DATED: 21/06/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. This First Appeal under Section - 96 of the Code of Civil Procedure is
at the instance of the original plaintiffs and is directed against the judgment and
decree below Exh.31 dated 24.03.2021 passed by the 2 nd Additional Senior
Civil Judge, Surat in the Special Civil Suit No.274 of 2019, by which, the
Court rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure.
2. The appellant instituted the suit seeking for specific performance of the
contract based on an agreement to sell dated 30.09.2003. At the time of the
execution of the agreement to sell, the subject land was a new tenure land. In
other words, the subject land was hit by Section-43 of the Bombay Tenancy
And Agricultural Lands Act, 1948. In such circumstances, an understanding
was arrived at as stipulated in the agreement to sell that the sellers i.e. the
original defendants nos.1 to 6 shall take all necessary steps to get the land
converted from new tenure to old tenure and such steps shall be taken by the
seller within a period of one year from the date of execution of the agreement
to sell. After the said agreement came to be executed in 2003, no action was
taken by the parties till 2019.
3. It appears that thereafter, the land came to be converted to old tenure
vide order dated 29.05.2019. On the very next day, i.e. on 30.05.2019, the
original owners i.e. the defendants nos.1 to 6 executed a registered sale-deed of
the subject land in favour of the defendant no.7.
4. In such circumstances referred to above, the appellant herein instituted a
suit for specific performance of contract based on the agreement to sell dated
30.09.2003. The respondent no.7 herein [purchaser of the property] preferred
an application under Order 7 Rule 11(D) of the Code of Civil Procedure and
prayed for rejection of the plaint on the ground that the suit itself was not
maintainable as a decree of specific performance cannot be granted on the basis
C/FA/1556/2021 JUDGMENT DATED: 21/06/2021
of a invalid or void agreement to sell hit by Section-43 of the Bombay Tenancy
And Agricultural Lands Act. The rejection of plaint was also prayed for on the
ground that the suit is time barred.
5. The Trial Court allowed the application below Exh-31 filed by the
respondent no.7 herein and rejected the plaint.
6. Being dissatisfied with the judgment and decree passed by the Court
below rejecting the plaint, the original plaintiff is here before this Court with
the present appeal.
7. The original plaintiff instituted Special Civil Suit No.274 of 2019
praying for the following reliefs :-
"(A) Your Honour may be pleased to pass the order in favour
of I-the Plaintiff directing the Defendants or their heirs, guardian, agent
to specifically perform the agreement to sell executed in favour of I-the
Plaintiff on 30/09/2002 and to receive the outstanding amount of
consideration from I-the Plaintiff and to hand over the peaceful and
direct possession of the suit land after executing the sale deed in the
name of I-the Plaintiff or in the name of any other person as per my wish
by appearing in Surat Sub-Registrar Office in respect of the land
registered vide R.S.No.49/1, block No.62 admeasuring to 2630 sq.mt. in
moje Parvat village, Ta-Udhana, Dist: Surat. If the Defendant refuses to
execute the sale deed, your honour may be pleased to pass the order
appointing the competent court commissioner and to direct the court
commissioner to be present in the Sub-Registrar Office and execute the
Registered sale deed in favour of I-the Plaintiff or in the name of any
other person as per my wish and to get the peaceful and direct possession
of the suit land from the Defendants and hand over the same to I-the
Plaintiff.
At the Alternative
C/FA/1556/2021 JUDGMENT DATED: 21/06/2021
If Hon'ble court does not deem it fit to grant the above prayer, Your
Honour may be pleased to pass an order in favour of I-the Plaintiff and
against the Defendants directing them to pay Rs.1,66,172/- of the earnest
money deed and Rs.1,50,00,000/- towards compensation for damages to
me after selling or mortgaging all the immovable properties of the
Defendants.
Amended as per the Order of Exhibit-15, Date: 18/11/19
(A/A) Kindly declare that the so called sale deed executed in
favour of the respondent no.7 by the respondent no.1 to 6 and registered
with the Sub-Registrar Office, Surat on 30/05/2019 under Sr. No.6237
(Index dated 31/07/2019) for the land admeasuring 1840 Sq. Mts. of
Final Plot No.43 of T.P. Scheme No.19 (Parvat-Magob) allotted in lieu of
land admeasuring 2630 Sq. Mts. of Block No.62, Revenue Survey No.49/1
of Moje Village: Parvat of Taluka: Udhana, District: Surat, is bogus,
fake, ultra-vires, fabricated, without consideration, nullity and void and it
is not binding to the plaintiff and pass an order to cancel it.
(A/A/A) Kindly declare that the respondent no.1 to 6 are not
entitled to do any unlawful act, which frustrates the rights of agreement
for sale of the plaintiff for the land admeasuring 1840 Sq. Mts. of Final
Plot No.43 of T.P. Scheme No.19 (Parvat-Magob) allotted in lieu of land
admeasuring 2630 Sq. Mts. of Block No.62, Revenue Survey No.49/1 of
Moje Village: Parvat of Taluka: Udhana, District: Surat, and that the
respondent no.7 does not get any ownership or possession rights by virtue
of Sale Deed registered with the Sub-Registrar Office, Surat on
30/05/2019 under Sr. No.6237 (Index dated 31/07/2019).
(B) Kindly declare that the respondents* Respondent
nos .1 to 7, by taking disadvantage of their names reflecting in the village
form no.7 x 12 of the land admeasuring 2630 Sq. Mts. of Block No.62,
Revenue Survey No.49/1 of Moje Village: Parvat of Taluka: Udhana,
District: Surat, themselves or through their legal heirs, agents, servants,
C/FA/1556/2021 JUDGMENT DATED: 21/06/2021
are not entitled to execute documents relating to any kind of transfer or
possession in favour of any third party or institute to create any kind of
encumbrance of government / semi government or to do any kind of act
containing transfer of nature of the land in the suit.
* Amended as per the Order of Exhibit-15, Date:18/11/19
(C) It is prayed that a permanent injunction order be passed
against the respondents in the interest of the plaintiff that, taking the
undue benefit of the names of Respondents No - 1 to 7 existing in the
Village Form No - 7x12 of land with Revenue Survey No - 49/1, moje
village Parvat, Taluka - Udhna, District - Surat whose Block No - 62
and the total area is 2630 square meter, they shall not enter into any
transaction of transfer by sale, rent, gift etc. or execute any document in
this regard with a third party or person by themselves or through their
heirs, servants or agent and they shall not create or cause to create
encumbrance in government or semi-government office and they shall not
transfer or cause to transfer the possession of the land in suit and they
shall not make or cause to make any construction on it which may change
its identity.
(D) It is prayed that all the possible relief with respect
to the suit be granted.
(E) It is prayed that all the cost of the suit be granted to the
plaintiff from the respondents."
8. Heard Mr. A. B. Munshi, the learned counsel appearing for the appellant
and Mr. Amit Thakkar learned counsel appearing for Mr. Rutul P. Desai, the
learned counsel for the respondent No.7.
9. Mr. A. B. Munshi, the learned counsel appearing for the appellant
contended that since the responsibility of converting the suit land from new
tenure to old tenure was on the defendants No.1 to 6, the defendants No.1 to 6
C/FA/1556/2021 JUDGMENT DATED: 21/06/2021
did not undertake the exercise of converting the suit land to old tenure land.
The appellant contended that the trial Court ought to have appreciated that even
as per the say of the defendant No.7 the order of conversion from new tenure to
old tenure passed by the Collector was dated 29.5.2019 and the registered sale
deed in favour of the defendant No.7 was 30.5.2019 i.e. on the very next day of
the conversion. The suit was preferred by the appellant-plaintiff on 5.9.2019
and at that point of time the suit land was already converted to new tenure to
old tenure and there was registered sale deed in favour of the defendant No.7.
The trial Court has erred in not considering this aspect while deciding the
application filed by the defendant No.7 below Ex.31. The plaintiff's suit could
not have been rejected solely on the ground that the agreement to sale being hit
by Section 43 of the Act is not enforceable in law.
9.1 It is submitted that the suit property was agreed to be sold after
converting it from new tenure to old tenure land and it was the responsibility of
the original owners to convert the tenure of the land. He relied on the
conditions No.3 and 4 of the agreement to sell. He further raised the issue that
limitation period of agreement was upto the execution of the registered sale
deed and the defendants did not act to take permission of conversion of land to
old tenure till the year 2019 and as and when the land was converted the
plaintiff instituted the present suit. It was submitted by the learned advocate
for the appellant that on the day of filing of the suit there was no restriction
under Section 43 of the Tenancy Act. It is also submitted that as the Appeal
From Order filed in this Court against the order passed below Ex.5 is pending,
the application under Order 7 Rule 11 should not have been decided.
9.2 The learned counsel appearing for the appellant submitted that the
Special Civil Suit instituted by the appellant (original plaintiff) was not just for
specific performance but also for claiming damages to the tune of
Rs.1,50,00,000/- and also for setting aside the registered sale deed executed by
the defendants No.1 to 6 in favour of defendant No.7 dated 30.5.2019. He
placed reliance on the condition No.(3) of the agreement at page 28 of the
paper-book :-
C/FA/1556/2021 JUDGMENT DATED: 21/06/2021
"(3) As the said land is of New Tenure, entire procedure to
transfer the same in Old Tenure shall be carried out by us - the second
Party. We - the second Party will bare the entire expenses regarding
such procedure and amount of Premium. We - the second Party will
have to complete the said procedure within one year from the date of
this Agreement to Sale."
10. The defendants No.1 to 6 though served have not appeared.
11. Mr. Amit Thakkar, the learned counsel assisted by Mr. Ritul Desai, the
learned advocate appearing for the defendant No.7 submitted that short point
for the consideration of the Court below while adjudicating the application
filed by the defendant No.7 for rejection of plaint was whether an agreement to
sell which is hit by Section 43 of the Bombay Tenancy Act can be enforced in a
Court of law for the purpose of seeking specific performance of contract. Mr.
Thakkar would submit that law in this regard is well settled. According to Mr.
Thakkar the issue is no longer res integra in view of the following two
decisions;
(1) Ganpatlal Manjibhai Khatri vs. Manguben Babaji Thakor, reported in
2019 JX (Guj.) 1122 and
(2) Hasvantbhai Chhanubhai Dalal vs. Adesinh Mansinh Raval, reported
in 2019(2) GLH 357.
He would submit that an agreement to sell with respect to a new tenure
land hit by the restriction of Section 43 of the Bombay Tenancy Act is not
enforceable in law and therefore, a suit for specific performance based on such
an invalid agreement is not maintainable in law.
11.1. He has further submitted that the alleged agreement was of the year
2003 and the suit came to be instituted in the year 2019, hence the suit is barred
by the law of limitation and plaint is required to be rejected on that ground as
well.
C/FA/1556/2021 JUDGMENT DATED: 21/06/2021
12. The trial Court while rejecting the plaint has arrived at following
findings at paragraphs 6 to 13 which are reproduced hereinbelow :-
"6. On perusal of the fact of the plain with the documents filed, the
averments of plain if performance of an agreement which was executed
for the new tenure land. At the time of execution of the agreement, no
previous sanction was received from the collected.
7. On perusal of the fact of the case it is cleared that suit property
was restricted from the transfer without the permission of the Collector.
Recently in the decision of Narayanamma vs. Govindappa decided on
Dtd.26/9/2019, same question was considered by Hon'ble Apex Court.
The findings are necessary to note here.
The question considered by the Apex Court in Narayanamma vs.
Govindappa was in whose favour the balance of justice would
tilt In a situation both the parties are common
participator in the illegality ?
Referring to Immani Appa Rao and Ors. vs. Gollapalli
Ramalingamurthi (1962) 3 SCR 739 , the bench comprising Justice
Arun Mishra, Justice MR Shah and Justice BR Gavai observed:
As held in Immani Appa Rao (supra), if the decree is granted in
favour of the plaintiff on the basis of an illegal
agreement which is hit by a statute, it will be rendering an active
assistance of the court in enforcing an agreement which is contrary
to law. As against this, if the balance is tilted towards the
defendants, no doubt that they would stand benefited even in spite
of their predecessor-in-title committing an illegality. However,
what the court would be doing is only rendering an assistance
which is purely of a passive character. As held by Gajendragadkar,
J. in Immani Appa Rao (supra), the first course would be clearly
and patently inconsistent with the public interest whereas, the
latter course is lesser injurious to public interest than the former.
The bench referred to Apex Court judgments dealing with the
question of application of the maxims ex turpi causa non oritur
actio and ex dolo malo non oritur action. It noted these points:
This Court held that, which principle is to be applied in the facts of
the case would depend upon the question, as to which principle is
more consistent with public interest. The Court finds that,
when both the parties before the Court are confederates in
the fraud, the Court will have to find out which
C/FA/1556/2021 JUDGMENT DATED: 21/06/2021
approach would be less injurious to public interest. The Court
observed that, whichever approach is adopted, one party would
succeed and the other would fail and, therefore, it is necessary to
enquire as to which party's success would be less injurious to
public interest. The Court in the facts of the said case finds that if
the decree was to be passed in favour of respondent No. 1 (who
was the plaintiff), it would be actively assisting respondent
No. 1 to give effect to the fraud to which he was a party and it has
been held that in that sense the Court would be allowed to be used
as an instrument of fraud and that is clearly and patently
inconsistent with public interest.
It has further been held, that if both the parties are equally guilty
and the fraud intended by them had been carried out, the position
would be that, the party raising the defence is not asking the
Court's assistance in any active manner. It has been held, that all
the defence suggested is that a confederate in fraud shall not be
permitted to obtain a decree from the Court because the
documents of title, on which the claim is based really
conveys no title at all. In the facts of the said case, it was held, that
though the result thereof would be assisting the defence therein to
retain their possession, for such an assistance would be purely of
passive character and all that the Court would do in effect is
that on the facts proved, it proposes to allow possession
to rest where it lies. It has been held that, latter course appears to
be less injurious to public interest than the former one.
It could thus be seen that, although illegality is not pleaded by the
defendant nor is relied upon by him by way of defence, yet the
court itself, upon the illegality appearing upon the evidence, will
take notice of it, and will dismiss the action ex turpi causa non
oritur actio. It has been held, that no polluted hand shall touch the
pure fountain of justice. It has further been held, that where
parties are concerned in illegal agreements or other
transactions, courts of equity following the rule of law as to
participators in common crime will not interpose to grant any
relief, acting upon the maxim in pari delicto potior est conditio
defendetis et possidentis.
8. In the case of V. Narasimharaju (AIR 1963 SC 107) [supra], the Apex
Court held with regard to unlawful consideration that the agreement
would be treated as invalid for the reason that such consideration is
opposed to public policy and in case on hand particularly when
previous sanction of the Collector was a mandatory and, admittedly,
such previous sanction was not obtained by the parties and the
agreement to sell an agricultural land is invalid and even Section 53A
C/FA/1556/2021 JUDGMENT DATED: 21/06/2021
of the Transfer of Property Act, 1882 would also not safeguard such
agreement.
9. The above aspect is also dealt with by the Bombay High Court in the
case of Himatrao Ukha Mali vs. Popat Devram Patil, AIR 1999 Bombay
10, [supra], wherein it is held that Section 43 imposes a total
prohibition or legal bar on alienation of the lands vested in favour of
the tenants under the provisions of the Tenancy Act. If an agreement of
sale or any instrument in respect of the subject land is executed without
taking previous sanction of the Collector under section 43(1) of the
Tenancy Act, the said agreement shall be invalid as per Section 43(2) of
the said Act. Suffice it to say that Section 43(1) of the Tenancy Act bars
even entering into agreement or alienating the land and usage of term
'shall' twice in the section including in the penultimate part of the
section reveals mandatory character of the language contained therein
and to be interpreted as such and, particularly when the agreement/
transaction was barred by subsection (1) of Section 43 of the Tenancy
Act and subsection (2) of Section 43 of the said Act clearly refers such
agreement or transfer shall be invalid.
10. In the decision of Hon'ble Supreme Court, in case of Raghwendra
Sharan Singh vs. Ram Prasanna Singh in Civil Appeal No.2960/2019
decided on 13/3/2019, in which observation made that a plaint can be
rejected under Order 7 Rule 11(d) of the Code of Civil Procedure, if by
considering the averments, it is found that the suit is clearly barred by
law of limitation.
11. Hon'ble Supreme Court in CASE: K. AKBAR ALI vs. K. UMAR
KHAN [SLP 31844 OF 2018] CORAM: Justices Indira Banerjee and
Hemant Gupta COUNSEL: Sr. Adv R. Balasubramanian, Sr. Adv R.
Basant, Adv Raghenth Basant CITATION: LL 2021 SC 114 decided on
25/2/2021 held that "In any case, an application under Order VII Rule
11 of the CPC for rejection of the plaint requires a meaningful reading
of the plaint as a whole. As held by this Court in ITC v. Debts Recovery
Appellate Tribunal reported in AIR 1998 SC 634, clever drafting
creating illusions of cause of action are not permitted in law and a clear
right to sue should be shown in the plaint. Similarly the Court must see
that the bar in law of the suit is not camouflaged by devious and clever
drafting of the plaint. Moreover, the provisions of Order VII Rue 11 are
not exhaustive and the Court has the inherent power to see that
frivolous or vexatious litigations are not allowed to consume the time of
the Court. 8. In this case, a meaningful reading of the plaint as a whole
makes it abundantly clear that the relief claimed in the suit is barred in
view of the restricted scope of the Power of Attorney given by the first
Defendant to Mr. Zahir Ali."
C/FA/1556/2021 JUDGMENT DATED: 21/06/2021
12. Hon'ble Supreme Court in Case name: DAHIBEN vs. ARVINDBHAI
KALYANJI BHANUSALI (GAJRA)(D) THR LRS Case no.: CIVIL
APPEAL NO. 9519 OF 2019 Coram: Justices L. Nageswara Rao and
Indu Malhotra decided on 9-7-202 The Court made the following
observations:
1. The power conferred on the court to terminate a civil action is,
however, a drastic one, and the conditions enumerated in Order VII
Rule 11 are required to be strictly adhered to.
2. Under Order VII Rule 11, a duty is cast on the Court to determine
whether the plaint discloses a cause of action by scrutinizing the
averments in the plaint, read in conjunction with the documents relied
upon, or whether the suit is barred by any law.
3. The documents filed alongwith the plaint, are required to be taken
into consideration for deciding the application under Order VII Rule 11
(a). When a document referred to in the plaint, forms the basis of the
plaint, it should be treated as a part of the plaint.
4. In exercise of power under this provision, the Court would determine
if the assertions made in the plaint are contrary to statutory law, or
judicial dicta, for deciding whether a case for rejecting the plaint at the
threshold is made out.
5. At this stage, the pleas taken by the defendant in the written statement
and application for rejection of the plaint on the merits, would be
irrelevant, and cannot be adverted to, or taken into consideration.
6. The test for exercising the power under Order VII Rule 11 is that if
the averments made in the plaint are taken in entirety, in conjunction
with the documents relied upon, would the same result in a decree being
passed. This test was laid down in Liverpool & London S.P. & I Assn.
Ltd. v. M.V.Sea Success I & Anr., (2004) 9 SCC 512.
7. It is not permissible to cull out a sentence or a passage, and to read it
in isolation. It is the substance, and not merely the form, which has to
be looked into. The plaint has to be construed as it stands, without
addition or subtraction of words. If the allegations in the plaint prima
facie show a cause of action, the court cannot embark upon an enquiry
whether the allegations are true in fact. Hardesh Ores (P.) Ltd. v. Hede
& Co. (2007) 5 SCC 614.
8. If on a meaningful reading of the plaint, it is found that the suit is
manifestly vexatious and without any merit, and does not disclose a
right to sue, the court would be justified in exercising the power under
Order VII Rule 11 CPC.
9. The power under Order VII Rule 11 CPC may be exercised by the
Court at any stage of the suit, either before registering the plaint, or
after issuing summons to the defendant, or before conclusion of the
C/FA/1556/2021 JUDGMENT DATED: 21/06/2021
trial. Saleem Bhai v. State of Maharashtra 7 (2003) 1 SCC 557.
10."Cause of action" means every fact which would be necessary for the
plaintiff to prove, if traversed, in order to support his right to judgment.
It consists of a bundle of material facts, which are necessary for the
plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
11. While considering an application under Order VII Rule 11 CPC
what is required to be decided is whether the plaint discloses a real
cause of action, or something purely illusory.
12. Law cannot permit clever drafting which creates illusions of a cause
of action. What is required is that a clear right must be made out in the
plaint. I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, (1998) 2 SCC
170.
13. If, however, by clever drafting of the plaint, it has created the
illusion of a cause of action, it should be nipped in the bud, so that
bogus litigation will end at the earliest stage. Madanuri Sri
Ramachandra Murthy v. Syed Jalal.
14. The Court must be vigilant against any camouflage or suppression,
and determine whether the litigation is utterly vexatious, and an abuse
of the process of the court.
13. The ratio of law clearly applicable to the case on hand. As per the
provisions of law, when the transfer was restricted by and could not be
made without the prior permission of the collector, hence, no suit can
be entertained for the specific performance of any agreement executed
without prior permission. It is the argument of learned advocate of
plaintiff that date of filling of the suit is important not the date of
agreement. But, in case on hand the date of agreement is important as
on the execution of agreement, the consideration of the agreement was
invalid and court has no power to order specific performance of
agreement having invalid consideration. It is the prime question at the
time of allowing specific performance that whether the agreement for
which specific performance is sought was valid or invalid? If the
answer is received as invalid then the position of law is binding on the
court."
13. In the case of Hasvantbhai Chhanubhai Dalal vs. Adesinh Mansihn
Raval and ors. reported in 2019 (2) GLH 357, wherein the court was
concerned with the question whether the agreement for sale of a new tenure
land hit under section 43 of the tenancy act can be specifically enforced and
performed. In paragraph 111, the Court held as under :-
"[1] The suit for specific performance of contract based on an invalid
agreement of sale hit by Section 43 of the Tenancy Act, 1948, is not
C/FA/1556/2021 JUDGMENT DATED: 21/06/2021
maintainable in law. If the agreement is rendered invalid under Section
43 of the Bombay Tenancy and Agricultural Lands Act, 1948, such
agreement is incapable of being specifically enforced. If the agreement
of sale itself is invalid, no decree for specific performance can be
passed by the Trial Court. Section 14(1)(c) of the Specific Relief
Act provides inter alia that a contract, which is in its nature
determinable, cannot be specifically enforced. In such
circumstances, the suit for specific performance of agreement of
sale has rightly not been decreed.
[2] Even otherwise, independent of the issue of Section 43 of the Act,
1948, the plaintiff has not been able to make out any case for grant
of decree of specific performance of contract based on an invalid
agreement of sale."
14. The present case also stands covered by the ratio laid down in the case
of Ganpatlal Manjibhai Khatri vs. Manguben Babaji Thakor, reported in
2019 JX (Guj.) 1122 , wherein in para 33 to 35 following observations are
made :-
"29. It is well settled that the jurisdiction to order specific performance
of contract is based on the existence of a valid and enforceable contract.
Where a valid and enforceable contract has not been made, the Court
will not make a contract for them. Specific performance will not be
ordered if the contract itself suffers from some defect which makes the
contract invalid or unenforceable. The discretion of the Court will not be
there even though the contract is otherwise valid and enforceable. (See
Satish Kumar vs. Karan Singh & Anr., Civil Application No.7385 of
2013, decided on 21st January, 2016).
30. The Supreme Court in Mayawanti vs. Kaushalya Devi, (1990) 3
SCC 1 held thus:
"8. In a case of specific performance it is settled law, and indeed
it cannot be doubted, that the jurisdiction to order specific
performance of a contract is based on the existence of a valid and
enforceable contract. The Law of Contract is based on the ideal of
freedom of contract and it provides the limiting principles within
which the parties are free to make their own contracts. Where a
C/FA/1556/2021 JUDGMENT DATED: 21/06/2021
valid and enforceable contract has not been made, the court will
not make a contract for them. Specific performance will not be
ordered if the contract itself suffers from some defect which makes
the contract invalid or unenforceable. The discretion of the court
will be there even though the contract is otherwise valid and
enforceable and it can pass a decree of specific performance even
before there has been any breach of the contract. It is, therefore,
necessary first to see whether there has been a valid and
enforceable contract and then to see the nature and obligation
arising out of it. The contract being the foundation of the
obligation the order of specific performance is to enforce that
obligation."
31. We shall now deal with the second contention of Mr. Joshi as
regards Sections 85 and 85A of the Act. Section 85 of the Act reads as
follows:-
"Section 85 Bar of jurisdiction
(1) No Civil Court shall have jurisdiction to settle, decide or deal with
any question [(including a question whether a person is or was at any
time in the past a tenant and whether any such tenant is or should be
deemed to have purchased from his landlord the land held by him) which
is by or under this Act required to be settled, decide or dealt with by the
Mamlatdar or Tribunal, a Manager, Collector or the [Maharashtra
Revenue Tribunal] in appeal or revision or the [State] Government in
exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the
[Maharashtra Revenue Tribunal] or the [State] Government made under
this Act shall be questioned in any Civil or Criminal Court.
Explanation:- For the purposes of this section a Civil Court shall include
a Mamlatdar's Court constituted under the Mamlatdar's Courts Act,
1906."
32. Section 85A of the Act reads as follows:
"Section 85A Suits involving issues required to be decided under this Act
(1) If any suit instituted in any Civil Court involves any issues which are
required to be settled, decided or dealt with by any authority competent
to settle, decide or deal with such issues under this Act (hereinafter
referred to as the "competent authority") the Civil Court shall stay the
suit and refer such issues to such competent authority for determination.
(2) On receipt of such reference from the Civil Court, the competent
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authority shall deal with and decide such issues in accordance with the
provisions of this Act and shall communicate its decision to the Civil
Court and such Court shall thereupon dispose of the suit in accordance
with the procedure applicable thereto.
Explanation:- For the purpose of this section a Civil Court shall include
a Mamlatdar's Court constituted under the Mamlatdar's Court Act,
1906.]"
33. In our opinion, it would be within the jurisdiction of the Civil Court
alone to determine whether the agreement on the basis of which the suit
for specific performance is instituted is a valid agreement or not. To put
it in other words, the jurisdiction exercisable for the determination of the
enforceability of the agreement of sale clearly resided in the Civil Court
which alone had the jurisdiction to make an adjudication on that
question.
34. In the aforesaid context, we may refer to a Division Bench decision
of the Karnataka High Court in the case of Neminath Appayya
Hanamannanavar vs. Jamboorao Satappa Kocheri, reported in 1966 AIR
(Kar.) 154, wherein the Court observed as under:
"[89] Section 70(mb) authorises and empowers the Mamlatdar to
decide the validity of a transfer or acquisition and to make that
decision under Section 84B or section 84C. Section 848 among other
matters authorises a Mamlatdar when he has reason to believe that a
transfer or acquisition made on or after June 15, 1955, contravenes
sections 63 or 64 of the Act as it stood before the commencement of
the amending Act, 1955. to make an enquiry and decide whether the
transfer or acquisition was or was not valid.
[90] Section 84C empowers the Mamlatdar to hold an enquiry by the
option of the procedure prescribed in section 84B whether a transfer
or acquisition made after the commencement of the amending
Act,1955. was valid.
[91] Since the agreement of sale in the case before us was made after
the commencement of the amending Act,1955, the relevant statutory
provision under which the Mamlatdar can make the enquiry
authorised by section 70(mb) is section 84C. But. what is authorised
by section 84C is an enquiry into the validity of a transfer or
acquisition made after the commencement of the amending Act 1955.
So. the condition precedent for the exercise of jurisdiction by the
Mamlatdar is a transfer or acquisition made in that way and that
Judge is unavailable until the transfer or acquisition actually comes
into being.
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[92] In this case, no such transfer or acquisition had yet been made
by any one. The acquisition which the plaintiff wanted to make was
an acquisition which he could make only after he obtained a decree
for specific performance and the invalidity of the acquisition if it was
in contravention of section 35 would attack itself to the acquisition
only after delivery of possession to the plaintiff of an area of land in
excess of what is permitted by the law.
[93] In that view of the matter, the jurisdiction exercisable for the
determination of the enforceability of the agreement of sale clearly
resided in the Civil Court which alone had the jurisdiction to make
an adjudication on that question. Surely, the Mamlatdar could not
have at a stage when the acquisition or transfer had not yet been
made and all that the plaintiff wanted to do was to enforce an
agreement of sale so that he could make the acquisition or obtain a
transfer under the terms of the agreement exercised power under
S.70(mb) or under section 84C and made one he would have this
exercised his jurisdiction prematurely and that adjudication would
have invited the criticism that it was one without competence.
[94] In my opinion, when a question arises in a suit for specific
performance whether the agreement on which that suit is based is
void on the ground that any acquisition made pursuant thereto would
contravene or transgress the provisions of Section 35 of the Bombay
Tenancy and Agricultural Lands Act, the Civil Court Is the only
forum in which an adjudication is possible and the Mamlatdar
cannot make any such adjudication. The power to make any
adjudication under section 84C arises and accrues to the Mamlatdar
only after the acquisition or the transfer as the assessee may be is
completed and not before."
35. In the overall view of the matter, we are of the view that the
impugned order passed by the Civil Court, rejecting the plaint on the
ground that the suit is time barred, may not be sustainable in law, but at
the same time, no interference is warranted in the present first appeal,
because in our opinion, the plaint is liable to be rejected mainly on the
ground that the suit for specific performance based on an illegal or
invalid agreement to sell is not maintainable as, such a contract is not
enforceable."
15. In view of the above settled legal position, the Court below has rightly
come to the conclusion that the agreement to sell dated 30.9.2003 entered into
between the defendants No.1 to 6 and the appellant itself being hit by the bar
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under Section 43 of the Tenancy Act could be said to be invalid and not
enforceable in law.
16. The Trial Court has rightly rejected the plaint by correctly following the
ratio as laid down in the various decisions of this Court as well as the Supreme
Court as discussed above.
17. The decision of the trial court while rejecting the plaint under Order 7
Rule 11 cannot be faulted with since the issue is no longer res integra and is
squarely covered in the case of Ganpatlal Manjibhai Khatri vs. Manguben
Babaji Thakor, reported in 2019 JX (Guj.) 1122. In this case also, the court
rejected the plaint on the ground that the suit for specific performance based on
illegal and invalid agreement for sale is not maintainable.
18. In the result, this appeal fails and is hereby dismissed. Consequently the
civil application also stands disposed of.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
