Gujarat High Court
Aarifbhai Razakbhai Memon (L H Of Late ... vs Manjulaben Prabhudas Panchal on 13 November, 2025
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C/FA/174/2025 JUDGMENT DATED: 13/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 174 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 174 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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AARIFBHAI RAZAKBHAI MEMON (L H OF LATE RAZAKBHAI HAJIBHAI
MEMON ) & ANR.
Versus
MANJULABEN PRABHUDAS PANCHAL & ORS.
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Appearance:
SENIOR ADVOCATE MR.DHAVAL VYAS for MR DA SANKHESARA(5955)
for the Appellant(s) No. 1,2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 13/11/2025
ORAL JUDGMENT
1. The present appeal is filed under section 96 of the Civil
Procedure Code, 1908 challenging the judgment passed
by the learned City Civil Court at Ahmedabad in Civil
Suit No.334 of 2011 dated 21.09.2025 whereby, the suit
filed for specific performance of the contract came to be
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dismissed.
2. It is the case of the present appellant who is the plaintiff
that defendants are the owners of the suit property and
they had decided to sell it to the plaintiff's predecessor
i.e Late Shri Razakbhai Memon. On 11.08.1995 the
agreement to sale came to be executed for the sale
consideration of Rs.57,000/- out of which Rs.17,000/-
was paid towards earnest money. The plaintiffs are in
the possession of the suit property as they are claimed
to be tenants in the said property. It is claimed that
though repeated demands were made for executing the
sale deed and despite various communications were
addressed, the defendant had not executed the sale
deed. It was replied by the defendant that because of the
Civil Suit No. 509 of 1995 and the injunction order
which is passed therefore, they are not able to execute
the sale deed. Ultimately, on 15.04.2006 the defendants
informed to the plaintiff that they are not ready to
execute the sale deed and plaintiff was asked to
handover the peaceful possession. Seeking specific
performance of the agreement to sale the impugned
suits came to be filed. The plaintiff has examined the
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Power of Attorney namely Hasmukhlal Modi on behalf of
the plaintiff below Exh 36 in order to prove the case and
has also place on record the documentary evidence in
the nature of agreement to sale below Exh 39, letters
written to the plaintiff's father below Exh.40, reply given
by the defendants below Exh.41, notice issued by the
defendants below Exh.42, reply given by the plaintiff
below Exh.43 and original Power of Attorney below
Exh.44 and in order to prove the defence, the defendant
has examined himself below Exh.47 and has not led any
documentary evidence. Learned court has framed eight
issues and has dismissed the suit which is impugned
before this Court.
3. Heard learned senior advocate Mr.Dhaval Vyas for the
appellant-original plaintiff.
3.1. Learned senior advocate Mr.Dhaval Vyas submits that
learned Court has committed an error in holding that
suit is not maintainable as the agreement to sale which
was executed in the name of Pankaj Corporation has not
filed the suit. Learned senior advocate Mr.Dhaval Vyas
has drawn the attention of this Court with regard to the
agreement to sale which is part of the paper book which
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is supplied by learned advocate wherein, the agreement
to sale was executed through Razakbhai Hajibhai
Memon for M/s Pankaj Corporation and the suit is filed
by son of Razakbhai Memon namely Arif Razakbhai
Memon and Salimbhai Razakbhai Memon. Learned
senior advocate Mr.Dhaval Vyas submits that without
examining the above aspect, learned Court has
dismissed the suit and therefore, the impugned
judgment deserves to be set aside and the suit is
required to be decreed in favour of the plaintiff. Learned
senior advocate Mr.Dhaval Vyas further submits that
learned Court has also committed error while answering
the issued no.5 in affirmative manner and holding that
the suit is barred by the limitation. Learned senior
advocate Mr.Dhaval Vyas submits that the issue with
regard to limitation were never raised before the
learned trial court either during the examination in chief
or through its written statement. The only issue framed
before the Court was whether the plaintiff proves he was
and ready to perform his part of the agreement and
whether the defendant proves time was essence of the
contract and plaintiff failed to perform his part of the
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agreement. Learned senior advocate Mr.Dhaval Vyas
submits that in absence of any issue regarding
limitation, it was not open for the learned court to rely
on Article 54 of the Limitation Act and to hold that suit
for specific performance was filed after a period of three
years. On that ground as well, the suit is required to be
decreed.
4. Having considered the arguments advanced by learned
senior advocate Mr.Dhaval Vyas and on referring the
reasons assigned by the learned trial court along with
Paper Book which is supplied by learned advocate, it
emerges that plaintiff namely Arifbhai Razakbhai Memon
and Salimbhai Razakbhai Memon who are the heirs of
Razakbhai Hajibhai Memon has filed the suit for specific
performance on 10.02.2011 against the heirs of Late
Shri Prabhudas Jivanlal Panchal. The suit is filed for
specific performance of contract, alleging that after
executing the agreement to sale on 11.08.1995, the
defendant denied to executing the sale deed despite the
plaintiff shows readiness and willingness to perform his
part of the contract. On referring the agreement to sale
which is produced below Exh.39, it emerges that
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agreement to sale was executed between M/s Pankaj
Corporation through Razakbhai Hajibhai Memon and
Shri Prabhudas Jivanlal Panchal and others. The said
agreement to sale does not refer that on personal
capacity of Razakbhai Memon, agreement to sale was
executed and the Pankaj Corporation has not filed suit,
whether M/s. Pankaj Corporation is proprietorship firm
or partnership firm that was not clarified through the
evidence by the plaintiff. It is settled position of law in
the suits relating to specific performance of contract, it
is the party with whom the agreement is made is
necessary party. The Apex Court in the decision
rendered in the case of Kasturi vs Iyyamperumal and
Ors reported in 2005 (6) SCC 733 has held that for
deciding the question who is necessary party in a suit for
specific performance, the guiding principle is that
presence of such party is necessary to adjudicate the
controversies involved in the suit for specific
performance of contract for sale. The question is
decided keeping in mind the scope of the suit. The
question that is to be decided in a suit for specific
performance of the contract for sale is to the
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enforceability of the contract entered into between the
parties to the contract and in whose absence no decree
can be passed by the Court.
4.1. As noted above, the purchaser namely M/s. Pankaj
Corporation has not filed suit and therefore, in the
opinion of this Court, the plaintiff would not have any
right to seek execution of the agreement to sale and suit
itself is not maintainable on the ground of misjoinder of
parties. In that background, no error has been
committed by the learned Court in dismissing the suit as
suit itself is not maintainable and hence, no further
examination is required for the other issues which are
framed by the learned trial court. Hence, this appeal
deserves to be dismissed.
5. Resultantly, this appeal is dismissed.
ORDER IN CIVIL APPLICATION
In view of the judgment passed above, civil application is
disposed of.
(M. K. THAKKER,J)
ARCHANA S. PILLAI
