Gujarat High Court
Kokilaben Shaileshkumar Shah vs Kantilal Purshottamdas Patel on 6 September, 2021
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/FA/356/2000 ORDER DATED: 06/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 356 of 2000
With
CIVIL APPLICATION NO. 1 of 2000
In R/FIRST APPEAL NO. 356 of 2000
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
In R/FIRST APPEAL NO. 356 of 2000
With
R/CROSS OBJECTION NO. 155 of 2005
In
FIRST APPEAL NO. 356 of 2000
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KOKILABEN SHAILESHKUMAR SHAH & 1 other(s)
Versus
KANTILAL PURSHOTTAMDAS PATEL & 3 other(s)
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Appearance:
MR SHALIN N. MEHTA, SENIOR ADVOCATE WITH MR HEMANG M
SHAH(5399) AND MR. VIJAY O SHARMA(6701) for the Appellant(s) No. 1
NIMIT Y SHUKLA(8338) for the Appellant(s) No. 1
MR JC VYAS(992) for the Appellant(s) No. 2
MR MEHUL SURESH SHAH, SENIOR ADVOCATE WITH MR APURVA R
KAPADIA(5012) for the Defendant(s) No. 3,4
MR MEHUL S SHAH(772) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 06/09/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. When this appeal was taken up for final hearing, Mr. Mehul
Suresh Shah, the learned senior counsel appearing for the
respondents - original defendants raised two pivotal issues as
regards the maintainability of the present appeal.
2. Mr. Shah pointed out that the original plaintiffs first instituted
C/FA/356/2000 ORDER DATED: 06/09/2021
a suit for injunction against the defendants as the original plaintiffs
had an apprehension that the defendants were likely to dispose of
the suit-properties and thereby defeat their claim under the
agreement to sell. Mr. Shah further pointed out that after the
institution of the suit for injunction, a second suit came to be filed
for specific performance of contract. Thus, according to Mr. Shah,
two suits came to be institued. It is pointed out that although both
the suits came to be consolidated, yet the Court below framed two
sets of issues i.e. seperate issues in both the suits. However, the
evidence led was common. It is pointed out that in the Regular
Civil Suit No.399 of 1990 for injunction, the following issues at
Exh.38 were framed.
1) Whether plaintiffs prove that the defendants have
committed the breach of the terms of the Banakhat
dtd.1.6.1989?
2) Whether plaintiffs are entitled to get relief as prayed
for?
3) What Order and Decree?
3. The aforesaid issues at Exh.38 came to be answered as
under:-
1) In the negative.
2) In the negative.
3) As per final order.
4. In the suit for specific performance of contract filed by the
original plaintiffs, the following issues were framed.
C/FA/356/2000 ORDER DATED: 06/09/2021
1) Whether plaintiffs prove that the agreement to sell the
suit property was executed by the defendants in favour
of the plaintiffs on dtd.01.06.1989?
2) Whether plaintiffs prove that they have paid
Rs.1,66,102/- towards earnest money and sell price to
the defendants as per Banakhat?
3) Whether plaintiffs prove that they were ready and
willing to pay the remaining sale amount to the
defendants as per the terms and conditions of the
Banakhat?
4) Whether the plaintiffs prove that the defendants have
failed to comply with the terms and conditions of the
Banakhat?
5) Whether the defendants prove that there is bar of the
Bombay Tenancy & Agricultural Lands Act?
6) Whether plaintiffs are entitled to get reliefs as prayed
for in Para-8 of the plaint?
6A) Whether suit is barred under Order-2 Rule-2 & 3 of
the Civil Procedure Code?
7) What Order and Decree?
5. The issues referred to above came to be answered as under:-
1) In the affirmative.
2) In the affirmative.
3) In the negative.
4) In the negative.
5) In the affirmative.
6) Decided accordingly.
6A) In the negative.
7) As per final order.
C/FA/356/2000 ORDER DATED: 06/09/2021
6. According to Mr. Shah, the present appeal has been filed only
against the judgment and decree passed in the suit for specific
performance, whereas, no appeal has been filed by the plaintiffs so
far as the judgment and decree passed in the Regular Civil Suit
No.399 of 1990 is concerned.
7. The preliminary objection as regards the maintainability of
the present appeal is on the argument that in the absence of any
distinct appeal by the plaintiffs against the findings recorded in the
issues framed at Exh.38 in Regular Civil Suit No.399 of 1990, those
findings would operate as res-judicata in the present appeal and
therefore, the present appeal should fail only on such ground alone.
Mr. Shah seeks to rely upon on some case law to substantiate this
argument of his and he would be sharing the case law with Mr.
Mehta, the learned senior counsel appearing for the appellants -
original plaintiffs.
8. His second ground to make good his case that the present
appeal is not maintainable is that one of the original plaintiffs
passed away during the pendency of the present appeal and the
legal heirs of the deceased plaintiff are not on record. In such
circumstances, according to Mr. Shah, the whole appeal could be
said to have stood abated. According to Mr. Mehta, the appeal
cannot be said to have abated as one of the legal heirs of deceased
plaintiffs is on record. To this Mr. Shah would submit that
although such legal heir may be on record yet in a different
capacity. Before proceeding further with the hearing of this appeal,
C/FA/356/2000 ORDER DATED: 06/09/2021
we would like both the learned senior counsel to assist us on the
aforesaid issues. Once such issues are decided, the Court shall
accordingly proceed to hear the matter further.
Post the matters on 13.09.2021.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
A. B. VAGHELA
