Devendra Agarbhatti Works vs Gajanand Pushaji Vanzara

A.J. Desai, J

By way of present First Appeal under Section 96 of the Code of Civil Procedure, 1908, the appellant herein-original plaintiff has challenged the judgment and order dated 17.02.2009 passed by the learned City Civil Court No. 25, Ahmedabad in Civil Suit No. 3151/2002, by which the civil suit filed by the appellant herein-original plaintiff for decree of specific performance of contract/Agreement to Sell came to be dismissed.

Pursuant to the notice issued by this Court, initially the respondent herein-original defendant did appear through Advocate who subsequently retired from the matter. Another Advocate was engaged by the respondent who also subsequently retired from the matter. Hence, notice was issued to the respondent way back in the year 2014. The notice issued by this Court came to be served to the respondent, however the respondent has chosen not to appear himself or engage any lawyer in the present First Appeal.

Hence, the First Appeal is taken up for hearing in view of the fact that the present First Appeal is of the year 2009 and Record & Proceedings have already been brought before this Court.

The case put forward by the appellant herein-original plaintiff before the trial Court as also before this Court are as follows:

[3.1] The defendant is the owner of a parcel of land admeasuring around 400 Sq. Yards of Survey No. 3442/3/4 paiki situated in Saijpur Bogha Sim, Naroda Vibhag, Ahmedabad (details of which have been narrated in the plaint). The said parcel of land is having a small size of premises which was occupied by the tenant of the defendant.

[3.2] Since the plaintiff was interested in purchasing the property, the plaintiff entered into an Agreement to Sell with the defendant on 30.04.1998, which was notarized on that day and the price was fixed at Rs. 2,501/- per Sq. Yard. Since the time period to pay the amount was likely to expire on 30.10.1998, the defendant agreed to extend the time and accordingly, the same was extended for a period of two months and the same was also notarized at the relevant time. It is the case of the appellant herein-original plaintiff that during the period from April 1998 to December 1998, the appellant paid various amounts i.e. in all Rs. 2,41,000/- to the respondent.

[3.3] It is the case of the plaintiff that several requests were made to the defendant to execute the sale deed as per the Agreement to Sell however, there was no response from the defendant and therefore, the plaintiff served a legal notice for execution of the sale deed which was not answered and therefore, the plaintiff was constrained to file the above civil suit requesting the Civil Court to pass a decree calling upon the defendant to execute the sale deed as per the terms and conditions of the Agreement to Sell and had also prayed for decree of vacant possession to be handed over to the plaintiff.

[3.4] Though the summonses were served in the suit proceedings, the defendant did not file any written statement. In absence of any written statement, seven issues were framed at Exh. 25. The appellant herein-original plaintiff examined two witnesses viz. one of the partners of the appellant-plaintiff and the witness to the Agreement to Sell. The respondent herein-original defendant neither cross-examined those witnesses nor examined any witness on his behalf. Therefore, the Civil Court proceeded further and passed the impugned judgment and order.

Hence, present First Appeal.

[3.5] That, the defendant herein has filed Cross Objection No. 250/2009 but has not made any specific prayer in the same.

4 . Learned advocate Mr. Chinmay Gandhi appearing for the appellant herein has vehemently submitted that the trial Court has committed grave error in dismissing the suit of the appellant-plaintiff, who had established full proof case put forward by him in the civil suit by producing relevant and important documents as well as by examining appropriate witnesses. He would submit that the appellant-plaintiff did produce several documents like certified copy of the Agreement to Sell, various receipts of amounts paid in cash by the appellant-plaintiff to the respondent-defendant, an Agreement with regard to handing over the possession of the property, various bank account statements in support of the contention that cheques were given by the appellant-plaintiff to the respondent-defendant, notice issued by the appellant-plaintiff for specific performance of Agreement to Sell and document from the post office which suggests that the respondent-defendant has refused to accept the notice. He would submit that these documents were proved by the appellant-plaintiff by examining two witnesses viz. Devraj Vanraj Malaviya (Plaintiff's Witness No. 1, Exh. 22) and Champak Vanraj Malaviya (Plaintiff's Witness No. 2, Exh. 27). He would submit that though these documents have been properly proved and the issues which were framed have been answered in favour of the appellant herein-original plaintiff, the trial Court has dismissed the suit only on the ground that the possession of the property was with the tenant.

4.1. By taking me through deposition of Devraj Vanraj Malaviya, he would submit that in all an amount of Rs. 15,000/- was paid in cash which was received by the defendant for which the receipts were issued at Exhs. 31 and 32. He would submit that the Agreement to Sell has been proved at Exh. 30, which specifically states that the respondent, who is the owner of the property in question, shall execute the sale deed. By taking me through bank account statement (Exh. 34), he would submit that on various occasions, cheques were issued in the name of defendant which were realized at the instance of the defendant. He, therefore, would submit that the trial Court ought to have passed appropriate decree in favour of the plaintiff.

4.2. He would further submit that the notice was issued by the plaintiff calling upon the defendant to execute the sale deed to which the defendant never responded. He would submit that though summonses were served upon the defendant, which fact has been observed and accepted by the trial Court in its judgment, the defendant neither appeared before the Court or filed any written statement nor cross-examined the witness examined by the plaintiff nor examined any witness on his behalf and therefore, the trial Court has committed grave error in dismissing the suit. He, therefore, would submit that the First Appeal be allowed.

I have heard learned advocate Mr. Chinmay Gandhi appearing for the appellant herein-original plaintiff.

I have gone through the Record & Proceedings of the Civil Suit. Perused the plaint, decree prayed for by the original plaintiff and scrutinized the depositions of two witnesses who were able to prove several documents like Agreement to Sell which was registered one and was exhibited at Exh. 30, receipts produced on record which suggest that the respondent had received amounts in pursuance to the Agreement to Sell executed in favour of the appellant herein. I have also gone through the bank account statements which clearly indicate that cheques were realized in favour of the respondent herein-defendant who was supposed to act according to the Agreement to Sell executed between the parties.

5.1. I have perused the reasoning with regard to issues framed at Exh. 25. It has been observed and accepted by the trial Court that the plaintiff was able to prove that there was an Agreement to Sell dated 30.04.1998 and part of performance of the Agreement to Sell was carried out on behalf of the appellant herein. It has also been observed by the trial Court that the appellant herein-original plaintiff was ready and willing to discharge his contractual obligation but the respondent herein-original defendant was not ready and willing to discharge his part of obligation however, the trial Court has committed an error in rejecting the suit only on the ground that the property was tenanted property. However, the trial Court has missed the say of the plaintiff that the plaintiff was ready and willing to get the sale deed executed in his favour without the property in question being vacated by the respondent herein. The same has been observed in last portion of paragraph 9 of the impugned judgment and order Exh. 37. I am, therefore, of the opinion that the trial Court has committed an error in dismissing the suit.

6 . In view of the above discussion, present First Appeal is allowed. Impugned judgment and order dated 17.02.2009 passed by the learned Judge, City Civil Court No. 25, Bhadra, Ahmedabad in Civil Suit No. 3151/2002 is hereby quashed and set aside. The learned City Civil Court, Ahmedabad is hereby directed to pass the decree in terms of plaint in favour of the appellant herein-original plaintiff. Record & Proceedings be sent back to the learned City Civil Court, Ahmedabad forthwith.

ORDER IN CROSS-OBJECTION NO. 250/2009

In view of disposal of main First Appeal and in view of the fact that none appeared for the applicant in Cross Objection No. 250/2009, Cross Objection No. 250/2009 is dismissed.