Gujarat High Court
Sulochanaben Rameshbhai Patel vs Alpa Ishwarbhai Patel on 23 March, 2023
Bench: Sandeep N. Bhatt
C/SCA/9908/2013 ORDER DATED: 23/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9908 of 2013
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 9908 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 9909 of 2013
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 9909 of 2013
==========================================================
SULOCHANABEN RAMESHBHAI PATEL & 1 other(s)
Versus
ALPA ISHWARBHAI PATEL & 3 other(s)
==========================================================
Appearance:
MS TRUSHA K PATEL(2434) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2
MR PA JADEJA(3726) for the Respondent(s) No. 4
MR PREMAL S RACHH(3297) for the Respondent(s) No. 3
MR VIRAT POPAT FOR MR TIRTH N BHATT(8487) for the Respondent(s)
No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 23/03/2023
COMMON ORAL ORDER
1. The issue for consideration in these petitions is
about examining the issues which are suggested in the
common application at Exh.372 in Special Civil Suit
No.100 of 2001 and Special Civil Suit No.49 of 2003
pending before the learned Principal Senior Civil Judge,
Kalol.
C/SCA/9908/2013 ORDER DATED: 23/03/2023
2. Heard learned advocates for the parties.
3. At the outset, learned advocates for the parties
have submitted that by passage of time, now the parties
are keen to proceed with the suit proceedings and some
consensus is also arrived at between the parties
regarding the recasting of issues. As a part of the
consensus, it is submitted that the parties have agreed
for issue nos.9(A)(B)(H)(K)(O) of Exh.372 application
which read as under:
"9(A) Whether it is proved by plaintiffs of both the suits
that the sale deeds executed on 13/10/1999 for the suit land
in favour of defendant no.1 are fraudulent, sham, bogus,
nominal and without consideration?
(B) Does the plaintiffs of Special Civil Suit No.100/2001
prove that the release declaration got signed and executed
by defendant no.3 of Special Civil Suit No.100/2001 and
plaintiff of Special Civil Suit No.49/2003 is fraudulently got
signed by Rohitbhai Ishwarbhai Patel?
(H) Does the plaintiffs of both the suits prove that they
were ever in possession of the suit lands from the date of
execution of the sale deeds by the original owners?
C/SCA/9908/2013 ORDER DATED: 23/03/2023
(K) Does the plaintiff of Sp.C.S.No.49/2003 prove that he
had no knowledge of execution of sale deeds dated
13/10/1999 till he obtained copies of the Entries made in the
Revenue Register?
(O) Does the plaintiffs of Special Civil Suit No.100/2001 and
Special Civil Suit No.49/2003 prove that they have not
colluded in filing such suits to extort money from defendant
no.1?
Therefore, it is submitted that the same can be
considered in the present petition.
4. However, learned advocate Ms.Patel for the
petitioners submitted that she is also pressing that issue
no.9(F) which is suggested in view of the various
communications between the parties and the pleadings of
the parties, more particularly, plaint and written
statement where the averments are to the effect that the
source of funds of the transaction is required to be
examined by the trial Court and therefore she prays that
no harm will be caused if the said issue is framed in a
modified manner.
C/SCA/9908/2013 ORDER DATED: 23/03/2023
5. Against this, learned advocates Mr.Popat and
Mr.Rachh in respective petitions have opposed to this
suggestion by drawing attention of this Court towards
the judgment in the earlier round of litigation passed by
this Court in SCA No.13066 of 2010 where in paragraph
no.7.2 and 8.5, this Court has considered the framing of
same issue as is now suggested by learned advocate
Ms.Patel at 9(F). Therefore, the same may not considered
in these petitions.
6. He has further submitted that the said order
was confirmed by the Apex Court.
7. In view of the above, this petition is partly
allowed.
8. The learned Principal Senior Civil Judge, Kalol
shall frame the issues agreed upon by the learned
advocates for the parties i.e. issue nos.9(A)(B)(H)(K)(O),
referred to hereinabove in Special Civil Suit No.100 of
2001 and Special Civil Suit No.49 of 2003.
9. However, for the issue no.9(F) which is insisted
C/SCA/9908/2013 ORDER DATED: 23/03/2023
by learned advocate for the petitioners, I am of the
opinion that it is not appropriate to frame the same
considering the fact that this Court has dealt with the
same and observed as under in the earlier round of
litigation being SCA No.13066 of 2010.
Paragraph 7.2 of the order dated 29.4.2011 passed in SCA
No.13066 of 2010 reads as under:
"7.2 The Issue No.2(3) sought to be deleted in application
Exhibit 176 reads as under:
"Whether the plaintiffs prove that they have purchased the
property from their own funds or not."
Paragraph 8.5 reads as under:
"8.5 In the present case there is no dispute that the
property was purchased in the name of the respondents no.1
and 2 and therefore the issue whether or not consideration
has been paid from the funds of respondent no.3 is not
relevant and necessary for the decision of the suit. It is
wholly irrelevant whether the respondent no.3 has paid the
sale consideration from his own funds or not. If that issue
is allowed to remain, it would obviously mean that the trial
court is taking cognizance of defence not permitted under
C/SCA/9908/2013 ORDER DATED: 23/03/2023
section 4 of the Benami transactions (Prohibition) Act, 1986."
The same has not been disturbed by the Apex Court.
Hence, the issue no.9(F) is not permitted to be framed
in the suits.
10. The suits are of the years 2001 and 2003 and
earlier also, this Court has issued direction to complete
the proceedings within one year, however, due to
pendency of the petition and for various other reasons
the suits could not be proceeded. Therefore, it is
expected that after framing the issues as observed
hereinabove, the learned trial Court shall proceed with
the trial as expeditiously as possible and after giving
reasonable opportunity to the parties to lead the evidence
and thereafter decide in accordance with law preferably
on or before 30.4.2024.
11. At the petitions are disposed of, no order is
required to be passed in the civil applications and
accordingly the same are also disposed of.
(SANDEEP N. BHATT,J)
SRILATHA
