Laljibhai Muljibhai Patel vs Ambalal Pujaji
2022 Latest Caselaw 3992 Guj

      C/SCA/6252/2021                                       JUDGMENT DATED: 05/04/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 6252 of 2021


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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                           LALJIBHAI MULJIBHAI PATEL
                                     Versus
                                AMBALAL PUJAJI
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Appearance:
MR FB BRAHMBHATT(1016) for the Petitioner(s) No. 1
MR. ARCHIT P JANI(7304) for the Respondent(s) No. 7
RAVI A PANDYA(8595) for the Respondent(s) No. 7
RULE SERVED for the Respondent(s) No. 1,2,3,4,5,6
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    CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                  Date : 05/04/2022

                                  ORAL JUDGMENT

1. This petition is filed under Article 227 of the Constitution of

India, challenging the order dated 5.3.2021 passed by the learned

5th Additional Senior Civil Judge, Gandhinagar, whereby the

application below Exh. 162 came to be rejected.

C/SCA/6252/2021 JUDGMENT DATED: 05/04/2022

2. Heard learned advocate Mr. F.B. Brahmbhatt for the applicant

and learned advocate Mr. Archit Jani for the respondent No. 7 at

length.

3. Rule. Learned advocate Mr. Archit Jani waives service of rule

for the respondent No. 7.

4. The brief facts of the case are that the present petitioner has

filed Special Civil Suit No.277 of 2012 before the learned Principal

Senior Civil Judge for specific performance for cancellation of sale

deed and also for injunction. That, the present petitioner has

executed a Banakhat of the land being survey No.95, Survey

No.1024, Survey No.1052, Survey No.1242 and Survey No.140,

situated at Village: Nana Chiloda (Naroda), in all, land admeasuring

about 34697 Sq. mtrs. That, the said banakhat was executed by the

respondent Nos. 1 to 5 in favour of the petitioner in the year 2006

on various terms and conditions. That, as per the conditions of the

banakhat, it is the duty of the respondent Nos. 1 to 5 to get the title

clearance certificate and after getting the same, sale deed is

required to be executed in favour of the petitioner. That, according

to the condition of banakhat, the petitioner sold out the land to

another person. That, after execution of banakhat the respondent

Nos. 1 to 5 were prolonging the time and as per the condition, the

term of banakhat was to extend automatically. That, the present

petitioner has paid sale consideration of Rs.29,12,250/- and

possession of the land has been handed over to the petitioner. That,

C/SCA/6252/2021 JUDGMENT DATED: 05/04/2022

thereafter, the respondent Nos. 1 to 5, by committing fraud and

cheating, without the knowledge of the petitioner after accepting

the said land, fraudulently and malafidely executed the sale deed in

favour of the respondent No. 6 on 25.6.2007. That, the respondent

Nos. 1 to 5 have changed the behaviour and started threatening the

petitioner, therefore, the petitioner has published advertisement in

newspaper on 9.9.2012, to which, the respondent Nos. 1 to 5 have

not raised any objection. That, thereafter on 12.9.2012, the

petitioner get the copy of revenue record and he came to know that

on 25.6.2007, the respondent Nos. 1 to 5 committed fraud and

executed the sale deed in favour of the respondent No. 6 for the

land bearing survey No.102/4. That, the respondent No. 6 has no

right, title or interest and has further executed sale deed in favour

of respondent No. 7 on 14.7.2008 for the land bearing survey

No.102/4. Therefore, the petitioner has filed Special Civil Suit No.

277 of 2012 before the 5th Additional Senior Civil Judge,

Gandhinagar. That, in the year 2016, the respondent No.2 -

Babubhai Punjabhai Bhoi has lodged one complaint before Naroda

Police Station, Ahmedabad, wherein, settlement arrived at between

the parties that except survey No.102/4, all other survey numbers

would be cancelled. That, in the said suit, the respondent Nos. 1 to 6

were not appeared before the Court and respondent No.7 has

submitted chief examination and matter was kept for cross

examination. That, the learned Trial Judge frequently insisting to

complete the cross examination. That, even the questions which are

C/SCA/6252/2021 JUDGMENT DATED: 05/04/2022

relevant, are also not allowed to ask to the respondent No.7,

therefore, the petitioner has submitted the application below

Exh.162 to permit him to ask the question which are necessary but,

the same is rejected by the order dated 5.3.2021.

5. Learned advocate for the petitioner argued that learned Trial

Judge failed to appreciate the aspect that the respondent Nos. 1 to 6

neither choose to appear before the Court nor entered into the

witness box. He further argued that the sale deed is executed by

committing fraud and breach of trust and therefore, to establish all

these aspects, the questions are required to be put before the

witness so that, correct fact can be brought on record but, the

learned trial Court has rejected such permission.

5.1 Learned advocate for the petitioner has also argued that as

against criminal trial, in civil proceedings, the plaintiff has to prove

his case on the basis of probabilities and in absence of the

respondent Nos. 1 to 6, the petitioner has to brought on record his

case by asking such questions to the respondent No.7, therefore,

the action of not permitting the petitioner to ask such questions, is

illegal and erroneous and hence, the order passed by the Court

below is required to be interfered with by this Court.

6. During the course of arguments, learned advocate Mr. Archit

Jani for the respondent No. 7 urged that as per his instructions, let

the impugned order dated 5.3.2021 passed by the learned 5th

C/SCA/6252/2021 JUDGMENT DATED: 05/04/2022

Additional Senior Civil Judge, Gandhinagar be set aside and this

petition may be allowed and the trial of the original suit be

expedited.

7. Having regard to the submissions advanced by the learned

advocates for the respective parties and considering the facts and

circumstances of the case, this Court is of the opinion that this

petition deserves to be allowed and allowed accordingly and the

order dated 5.3.2021 passed by the learned 5th Additional Senior

Civil Judge, Gandhinagar is hereby quashed and set aside. Further,

considering the fact that suit is of the year 2012, both the parties

are directed to co-operate with the proceedings before the learned

Trial Court and shall not seek unnecessary adjournment and the

learned Trial Court shall decide the suit as expeditiously as possible

preferably within 12 months from the date of receipt of copy of writ

of this order. Rule is made absolute to the aforesaid extent. Direct

service is permitted.

(A. C. JOSHI,J) prk