Gujarat High Court
Jayantibhai Keshavbhai Parsana vs Chanabhai Bhawanbhai Jesadiya on 16 April, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/FA/4465/2024 ORDER DATED: 16/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4465 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 4465 of 2024
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JAYANTIBHAI KESHAVBHAI PARSANA
Versus
CHANABHAI BHAWANBHAI JESADIYA
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Appearance:
MR HARSHIT S. TOLIA, SR. ADVOCATE WITH MR JEET Y
RAJYAGURU(8039) for the Appellant(s) No. 1
MR SI NANAVATI, SR. ADVOCATE WITH MR MOUSAM R YAGNIK(3689)
for the Defendant(s) No. 1
MR NIRAD D BUCH(4000) for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 16/04/2025
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)
Mr.Harshit Tolia, learned senior counsel appearing with
Mr.Jeet Rajyaguru, learned advocate for the appellant, has invited
attention of this Court to the agreement to sell dated 03.04.2019
and supplementary agreement to sell dated 29.11.2019. It is
submitted that it is nothing but the agreement to sell executed
between the parties agreeing to sell the land in favour of the
applicant-appellant. The learned Judge, while accepting the written
statement, has decreed the suit in favour of the defendant and
against the appellant. Shifting of onus upon the plaintiff was not in
right earnest. It is further submitted that in absence of any
evidence the learned Judge, could not have believed the say of the
defendant considering the fact that the defendant has not entered
the witness box nor filed any examination-in-chief. Reliance is
NEUTRAL CITATION
C/FA/4465/2024 ORDER DATED: 16/04/2025
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placed on the judgments in the case of Anaya Kocha Shetty (Dead)
Through LRs v. Laxmibai Narayan Satose since deceased through
LRs reported in 2025 INSC 466 and in the case of Vidhyadhar v.
Manikrao reported in (1999) 3 SCC 573. It is submitted that
acceptance of the amount, is not in dispute. However, what
weighed with the learned Judge, was the interest aspect and the
agreement was considered as agreement of borrowing instead of
agreement to sell.
2. On the other hand, Mr.S.I. Nanavati, learned senior advocate
appearing with Mr.Mousam Yagnik and Mr.Nirad Buch, learned
advocates, submitted that the agreement to sell, clearly suggests
that the land, is of new tenure and was required to be converted.
Time of four months, was provided. However, no steps were taken
and hence, necessity of supplementary agreement to sell arose.
Obligation, was on the purchaser that on getting the permission, he
has to make the payment. At no point of time, there was any
willingness shown by the plaintiff to make the payment. It is
submitted that neither in the plaint nor in the notice of the cross-
examination, plaintiff has shown readiness and willingness. It was
the obligation of the plaintiff to show that he has sufficient fund,
but the plaintiff, has failed to do so. Also, the plaintiff was aware
about the order passed of converting the land into N.A. despite
which, no steps were taken. The knowledge was very much there.
On 14.02.2021 the agreement to sell has come to an end. It is
submitted that therefore, the plaintiff could not prove his case and
the learned Judge, has rightly dismissed the suit.
3. Learned counsel, after arguing for some time, has fairly
conceded that the parties could not take necessary steps for the
effective adjudication of the suit. However, it is urged that the
matter, be remitted. Learned counsel, while referring to the
NEUTRAL CITATION
C/FA/4465/2024 ORDER DATED: 16/04/2025
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summary of dates and events, have jointly submitted that it would
be in the interest of all concerned that the suit is remitted from the
stage of leading evidence by the parties.
4. It is submitted that the cross-examination of the plaintiff
has completed on 19.03.2025. It is thereafter, that the application
was filed by the appellant for summoning the witness which was
conditionally allowed but the learned advocate for the appellant
could not take steps. Another application met the same fate. If a
chance is given to the parties, the same, would be in furtherance of
justice. It is also declared before this Court that the parties, shall
scrupulously follow the procedure and not seek unnecessary
adjournments or try to prolong the hearing of the suit. A fair
chance, may be given to both the parties. Learned counsel
appearing for the respective parties have consented to the passing
of the following order. Learned counsel have also agreed for
continuation of the status quo granted by this Court in the
R/Appeal from Order no.181 of 2022.
5. Heard the learned counsel appearing for the respective
parties.
6. The suit has been filed by the plaintiff seeking specific
performance of the agreement to sell, which was opposed by the
defendant. During the pendency of the suit, being aggrieved, by the
order passed below Exh.5 in the Special Summary Suit no.14 of
2021, plaintiff had filed an Appeal from Order no.181 of 2022,
which came to be disposed of by this Court by passing an order
dated 02.05.2023 read with order dated 05.05.2023, further read
with order dated 13.07.2023 and the trial Court, was directed to
decide the suit in accordance with law and on merits, as
expeditiously as possible, but not later than six months from the
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C/FA/4465/2024 ORDER DATED: 16/04/2025
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receipt of the copy of the order. Prior to the passing of the order on
19.04.2024, two orders were passed below Exhs.58 and 59. By
order below Exh.58, the application was allowed of the plaintiff for
summoning of the witness on condition of payment of the cost;
however, the learned advocate could not deposit the process and
hence, the witnesses could not be summoned. Another application,
was rejected. Subsequent thereto, the rights of the plaintiff and
the defendant of leading further evidence, were closed. Learned
advocates have fairly conceded before this Court that there was
some wantings on their part, however, it is assured that the learned
advocates shall not seek unnecessary adjournments and would not
prolong the hearing of the suit. This Court, therefore, deems it
appropriate to remit the matter giving opportunity of a fair hearing
to the parties. The learned Judge, shall not influence by the orders
both dated 19.04.2024 - Exh.58 and Exh.59 and shall decide the
suit strictly in accordance with law. First Appeal stands disposed of
accordingly.
7. In view of the above, the judgment and decree, both dated
21.09.2024, are hereby quashed and set aside. Special Civil Suit
no.14 of 2021 is restored to its original file. The trial Court, shall
continue the suit from the stage of leading oral evidence by the
parties.
8. In view of the disposal of the captioned First Appeal, Civil
Application does not survive and stands disposed of accordingly.
9. While concluding, it may be noted that this Court, in
R/Appeal From Order no.181 of 2022, has passed order on
02.05.2023 read with order dated 05.05.2023 further read with
order dated 13.07.2023, directing the parties to maintain status
quo which, thereafter was continued by this Court by passing order
NEUTRAL CITATION
C/FA/4465/2024 ORDER DATED: 16/04/2025
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dated 19.12.2024. Let the status quo granted be continued till the
final disposal of the suit.
10. Needless to clarify that this Court, has not examined the
merits of the matter.
(SANGEETA K. VISHEN,J)
(NIRAL R. MEHTA,J)
ANUP
