Madhya Pradesh High Court
Bharat Jaroli vs Dr. Ramesh Dak on 12 September, 2023
Author: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 12 th OF SEPTEMBER, 2023
MISC. APPEAL No. 3118 of 2022
BETWEEN:-
BHARAT JAROLI S/O SHRI UDAYLAL JI JAROLI, AGED
ABOUT 59 YEARS, OCCUPATION: BUSINESS BUNGALOW
NO. 45, KILA ROAD, NEEMUCH DISTRICT NEEMUCH
(MADHYA PRADESH)
.....APPELLANT
(SHRI V.K.JAIN, LEARNED SENIOR COUNSEL WITH SHRI MAKBOOL
AHMAD MANSOORI, LEARNED COUNSEL FOR THE APPELLANT)
AND
1. DR. RAMESH DAK S/O SHRI BASANTILAL DAK,
AGED ABOUT 60 YEARS, OCCUPATION: DOCTOR
R/O 21, VIKAS NAGAR, NEEMUCH DISTRICT
NEEMUCH (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THROUGH
COLLECTOR NEEMUCH (MADHYA PRADESH)
.....RESPONDENTS
(SHRI RISHIRAJ TRIVEDI, LEARNED COUNSEL FOR RESPONDENT NO.1)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
This Miscellaneous Appeal under Order 43 Rule 1 read with Section 104
of the Civil Procedure Code, 1908 (hereinafter referred to as 'CPC') has been
preferred against the order dated 06.05.2022 passed by the Court of II
Additional District Judge, Neemuch, district Neemuch in Civil Suit No.5-A/2019
whereby the learned trial Court has rejected the application filed by the plaintiff
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under Order 39 Rules 1 and 2 of CPC.
2. The brief facts of the case is that appellant/plaintiff has preferred a
civil suit seeking declaration, specific performance of contract, possession and
permanent injunction against the defendant before the learned Trial Court with
respect to the land bearing Survey Nos. 2010, 2012 and 2013 area 0.702
hectare, situated at Neemuch. As per the averments made in the plaint, out of
the total area 1.418 hectare of the aforesaid survey numbers, the defendant had
already executed a sale deed of an area admeasuring about 0.716 hectare in
favour of the plaintiff on 01/02/2011. It is further averred that for remaining area
of 0.702 hectare, an oral agreement took place between the parties and
according to which the defendant received earnest money and permitted the
plaintiff to develop the land and establish a colony and construction of a multi
storied building. As per the prevailing trend in the property business, the
plaintiff was required to pay the remaining sale consideration to the defendant
stepwise after developing the land and selling the flats and plots to the
respective purchasers. It is further pleaded that thereafter the plaintiff himself
using his colonizer license, completed various legal formalities and obtained the
requisite permission relating to development and construction on the suit land.
The plaint further reflects that the multi-storied building so constructed by the
plaintiff was named as "Uday R and C Center" and the other part of developed
land was named as "Uday Vihar Phase-II". It is further pleaded that taking
undue advantage of an incident took place with the plaintiff, in which some
shooters were booked by the police, who were sent to kill the plaintiff, the
defendant forcibly took possession of the building and changed the name of the
building by installing a flax in the name of "Dak Plaza" in clear violation of the
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terms of the oral agreement. On the above-mentioned background, the plaintiff
on the basis of various other pleadings filed the suit against the defendant and
prayed for issuance of a declaratory decree to the effect that the plaintiff be
declared owner and occupier of the suit land and the building. The plaintiff also
prayed that by way of a decree of possession, the defendant be directed to
handover the possession of the entire property to the plaintiff. The plaintiff also
prayed for a decree of specific performance of the contract and further prayed
for issuance of a decree of permanent injunction restraining the defendant form
making any interference in the plaintiff's possession over the suit property.
3. Alongwith the suit the plaintiff had moved an application under Order
39 Rules 1 and 2 CPC on earlier occasion praying that the defendant be
directed to handover the possession of the entire property to the plaintiff and to
restore the position as it was existing before 17/10/2015 and thereafter the,
defendant be restrained from making any interference in the plaintiffs
possession over the suit property till the decision of the suit. It is submitted that
the said application was dismissed by the learned trial Court vide order dated
03/09/2016 with an observation that the reliefs claimed by the plaintiff by way of
the said application seems to be of nature of the final relief and the same cannot
be granted at the very initial stage of the proceeding. The said order was also
confirmed by the Hon'ble High Court vide order dated 16/02/2017 passed in
MA 1776/2016.
4. Thereafter, the appellant/plaintiff moved an application under Order
39 Rules 1 and 2 of CPC and prayed that the defendant is trying to alienate the
suit property during the pendency of the suit, so the appellant will suffer a great
irreparable loss. By way of the said application, it was prayed before the the
trial Court to restrain the respondent/defendant from alienating the suit property
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and creating third party rights therein till final decision of the suit.
5. Opposing the prayer made by the plaintiff in the aforesaid
application, the respondent/defendant submitted his reply stating therein that no
right, title or interest of the plaintiff is involved in the suit property and the
plaintiff has moved the present application only with an intention to prolong the
proceeding of the suit. The learned trial Court considered the aforesaid
application moved by the plaintiff under Order 39 Rule 1 and 2 of CPC and
without even going through the contents of the said application dismissed the
same vide order dated 06/05/2022. Being aggrieved by the said order Annexure
P-1, the plaintiff filed this miscellaneous appeal.
6. Learned counsel for the appellant submits that it is clear that
defendant in his reply has not specifically denied the fact that he has sold the
suit property to various persons by executing the registered sale deeds. The
learned trial Court has failed to consider the fact that before recording of
evidence of respective parties in the suit, admittedly the defendant is creating the
third-party rights in the suit property. Therefore, in all fairness the defendant is
required to be restrained from alienating the suit property till the final disposal of
the suit. The learned Court below has failed to consider that under the peculiar
facts and circumstances of the case and in view of the various documents
available on record, the plaintiff has prima facie established his right in the suit
property and looking to the nature of the controversy revealed in the pleadings
and the material on record, strong prima facie case in favour of the plaintiff is
made out. Therefore, the impugned order is bad in law and not sustainable and
prays that the appeal be allowed and the impugned order dated 06.05.2022
passed by II Additional District Judge, Neemuch in Civil Suit No.05-A/2019 be
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set aside.
7. Alongwith this appeal the appellant filed an application
I.A.No.6435/2023 for taking additional documents on record.
8. The appellant's counsel has submitted that a list of documents has
been filed alongwith the present application which includes the copy of various
sale deeds executed by the respondent in favour of the respective purchasers
relating to the part of the suit property. It is further submitted that these
documents are relevant for adjudication of the present appeal, therefore, it
would be appropriate in the interest of justice to take the list of documents on
record and consider the same at the time of final hearing of the present appeal.
He further submitted that at the time of hearing of the application under Order
39 Rules 1 and 2 of CPC before the trial Court he was not aware of these
documents so these documents be taken on record before hearing this appeal.
9. Learned counsel for the respondent has orally opposed the
application.
10. I have heard the learned counsel for the parties.
11. Order 41 Rule 27 of the CPC reads as under:-
"27. Production of additional evidence in Appellate
Court.--(1) The parties to an appeal shall not be entitled
to produce additional evidence, whether oral or
documentary, in the Appellate Court. But if --
(a) the Court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been
admitted, or
[(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or
could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was
passed, or]
(b) the Appellate Court requires any document to be
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produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause, the
Appellate Court may allow such evidence or document to
be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record the
reason for its admission."
12. According to this provision the documents which were not within
the knowledge of the party or could not, after exercise of due diligence, be
produced by him at the time when the order appealed against was passed.
13. On perusal of these documents it is found that these documents are
executed between the respondent and other parties. The appellant was not party
so it is found that at the time of execution of these documents, the appellant
was not aware about these documents. So these documents are necessary for
just and effective adjudication of the dispute between the parties. Hence, the
documents are taken on record. It is a fit case for remanding the case back to
the trial Court for fresh adjudication.
14. Accordingly, this appeal is allowed. The order dated
06.05.2022 passed by the Court of II Additional District Judge, Neemuch,
district Neemuch in Civil Suit No.5-A/2019 is set aside. The parties are directed
to appear before the trial Court on 22.09.2023. The trial Court is directed to
take these documents on record and after giving opportunity of hearing to the
parties pass a fresh order on the application under Order 39 Rules 1 and 2 of
CPC without being influenced with this order.
The appeal stands disposed off.
(HIRDESH)
JUDGE
RJ
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 14-09-2023
15:57:07
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 14-09-2023
15:57:07
