Skip to content


Suresh S/O Lahorimal Khatri Vs. Balkisan S/O Shivnarayanji Chandak and ors. - Court Judgment

LegalCrystal Citation
SubjectContract;Constitution
CourtMumbai High Court
Decided On
Case NumberL.P.A. No. 70 of 2005 in W.P. No. 4756 of 2004
Judge
Reported in2006(2)ALLMR146; 2006(3)BomCR135; 2006(2)MhLj443
ActsSpecific Relief Act, 1963 - Sections 28; Constitution of India - Articles 226 and 227; Code of Civil Procedure (CPC) (Amendment) Act, 1999; Code of Civil Procedure (CPC) - Sections 115
AppellantSuresh S/O Lahorimal Khatri
RespondentBalkisan S/O Shivnarayanji Chandak and ors.
Appellant AdvocateM.G. Bhangde, ;V.V. Bhangde and ;G.R. Agrawal, Advs.
Respondent AdvocateS.V. Purohit and ;S.B. Bhangde, Advs. For respondent No. 1 and ;None for respondent Nos. 2 to 6
DispositionAppeal dismissed
Excerpt:
.....the appellant vehemently contended that the approach of the trial court as well as that of learned single judge was ex-facie illegal and perverse inasmuch as the courts have overlooked the dispute as to title of the suit house raised by respondent nos. the learned counsel for the appellant placing reliance on the decision of the madras high court in 1970(1) madras law journal reports, page 92 and that of the apex court reported in 2004(9) scale 184 submitted that the courts below have failed to appreciate that in such cases the right question to be posed was that whether there was positive refusal on the part of the appellant/decree holder to comply with the obligations imposed upon him. 1 supported the findings recorded by the trial court as well as the learned single judge. in the..........it was further observed that if the defendant fails to execute the sale deed of the suit property within four months, the appellant/plaintiff would be entitled to obtain the sale deed from the court. however, the appellant/plaintiff could not deposit the entire amount within the stipulated period of three months because of dispute as to title of the suit property raised by respondent nos. 2 to 6. before filing of the suit, the appellant had issued notice on 24-2-2001 calling upon the respondent no. 1 to execute the sale deed. the respondent no. 1 gave reply to this notice on 26-2-2001 and also published a notice in newspaper by which the respondent no. 1 admitted that he had received rs. 50,000/- towards sale consideration and that he has signed the agreement dated.....
Judgment:

P.S. Brahme, J.

1. Heard the learned Counsel for the parties. Perused the records.

2. The order passed by the learned Single Judge in Writ Petition No. 4756 of 2004 on 25th February, 2005 is the subject-matter of challenge in this appeal. The learned Single Judge dismissed the Writ Petition confirming the order dated 4-10-2004 passed by the Joint Civil Judge (Sr. Dn.), Amravati. The learned Joint Civil Judge (Sr. Dn.), Amravati vide his order dated 4-10-2004 dismissed the R.M.J.C. No. 33 of 2004 filed by the appellant wherein he has sought for extension of time and R.M.J.C. No. 59 of 2004 filed by respondent No. 1 for rescission of contract came to be allowed.

3. The facts which are not in dispute may be stated in brief as follows :

The appellant filed Special Civil Suit No. 69 of 2001 on 30-3-2001 against the respondent No. 1 (sole defendant) for specific performance of contract on the basis of agreement of sale dated 9-2-2001 whereunder the defendant agreed to sell his house property to the appellant. The learned Civil Judge by his judgment and order dated 29-12-2001 decreed the suit and the appellant was directed to pay balance amount of Rs. 72,00,000/- within three months from the date of judgment/decree. It was further observed that if the defendant fails to execute the sale deed of the suit property within four months, the appellant/plaintiff would be entitled to obtain the sale deed from the Court. However, the appellant/plaintiff could not deposit the entire amount within the stipulated period of three months because of dispute as to title of the suit property raised by respondent Nos. 2 to 6. Before filing of the suit, the appellant had issued notice on 24-2-2001 calling upon the respondent No. 1 to execute the sale deed. The respondent No. 1 gave reply to this notice on 26-2-2001 and also published a notice in Newspaper by which the respondent No. 1 admitted that he had received Rs. 50,000/- towards sale consideration and that he has signed the agreement dated 9-2-2001. He also informed the appellant by the said notice that he did not want to sell the property and therefore, the amount of Rs. 50,000/- was being returned by the demand draft. The appellant gave reply to this reply on 1-3-2001 and returned the said demand draft of Rs. 50,000/- to respondent No. 1 contending that the agreement dated 9-2-2001 between them was a concluded contract and that the respondent No. 1 could not resile from the said agreement. In addition to that, the appellant published a notice in the local Newspaper 'Hindustan', dated 24-2-2001 inviting objections, if any; upon which the respondent Nos. 5 and 6 - the sons of respondent No. 1 and late Nandkishor - of whom respondent Nos. 1 to 3 are wife and sons, took objection by giving a notice dated 1-3-2001. Apart from that, the respondent Nos. 5 and 6 and late Nandkishor also published a notice in the local Newspaper dated 24-2-2001 and controverted the claim of the appellant on the basis of the agreement of sale contending that they have also share in the suit/house property along with the respondent No. 1. That is how, the respondents have thrown cloud on the title of respondent No. 1 over the suit property. In addition to that, the appellant noticed that after passing of the decree the respondent No. 1 has shifted his residence from the suit property to a flat because there were disputes between respondent No. 1 on one hand and respondent Nos. 2 to 6 on the other. So after passing of the decree, the appellant published a notice in Newspaper 'Hindustan', dated 22-2-2004 inter alia informing that the decree had been passed and inviting the objections, if any to the execution of the sale deed in pursuance of the decree. It is the contention of the appellant that in response to the notice published on 22-2-2004 respondent Nos. 5 and 6 met him on 24-2-2004 and told that respondent No. 1 has shifted his residence from the suit property to a flat because there were disputes between respondent No. 1 and respondent Nos. 2 to 6 and that respondent Nos. 2 to 6 are residing in the suit house and that they have got a share in the suit property as the same is ancestral property. The appellant then requested the respondents to resolve their internal dispute so that the sale deed can be executed in favour of the appellant by removing the cloud thrown over the suit property by respondent Nos. 2 to 6. That upon which the respondents stated that they are taking meeting and assured the appellant to resolve their internal dispute and further assured that it would take sometime and by 29th March, 2004 their disputes would be resolved by intervention of friends and relatives and stated that unless their dispute is resolved the appellant should not deposit the amount. However, though the appellant waited upto last day, none of the respondents came forth to inform the appellant as to settlement of internal dispute amongst them and the appellant was constrained to file application for extension of time to deposit the remaining amount. His application was accordingly registered as R.M.J.C. No. 33 of 2004.

4. It was respondent No. 1 who resisted the application by his reply filed on 21-4-2004. The allegations in the application have been controverted by respondent No. 1, in particular as to the so-called alleged dispute to the title over the suit property between respondent No. 1 on one hand and rest of the respondents on the other. It was specifically contended that at no point of time there was any dispute amongst the respondents as to title of the suit property and that the appellant has put forth a concocted theory, mala fide as to alleged dispute amongst the respondents over the suit property to justify the delay on the part of the appellant in depositing the remaining amount of consideration. He also contended that the appellant was not ready and willing to perform his part of contract, particularly regarding deposit of the remaining amount of consideration within stipulated time as provided under the decree.

5. Respondent Nos. 2 to 6 resisted the application by filing reply in which they have also specifically denied the contentions of the appellant in his application relating to alleged dispute over title of the suit house. It was contended that the respondents have no-doubt raised dispute over the property by replying notice issued by the appellant before filing the suit. If really there was cloud in the mind of the appellant as to dispute over the suit property, then in all probability, the appellant would have impleaded these respondents in the suit. The fact that the appellant did not implead the respondents in the suit lends support to the fact that the appellant was satisfied about the absolute ownership of respondent No. 1 vis-a-vis the suit house. Therefore, it was contended by the respondents that as the appellant did not join these respondents as defendants in the suit, it goes to show that the appellant was satisfied about the title and competence of respondent No. 1 to sell the house. The respondents further contend that they had and have no objection for decree and hence, they did not take any objection to the decree.

6. It is not disputed that during pendency of this application filed by the appellant for extension of time it was respondent No. 1 who filed application bearing R.M.J.C. No. 57 of 2004 against the appellant on 6-7-2004, precisely under Section 28 of the Specific Relief Act, 1963 praying that the decree passed in Special C. S. No. 69 of 2001 be rescinded/set aside and mainly on the ground that the appellant has failed to abide by the condition under the decree for performance of his part of contract as regards payment of remaining amount of consideration.

7. This application filed by respondent No. 1 came to be resisted by the appellant by his reply denying all the contentions in that and he prayed that the same should be dismissed. In that, he has reiterated all the contentions which he has raised in his application.

8. As stated earlier, both the applications came to be decided by the learned trial Court by common order dated 4-10-2004 wherein the appellant's application i.e. R.M.J.C. No. 33 of 2004 came to be rejected, while that application R.M.J.C. No. 59 of 2004 filed by respondent No. 1 came to be allowed.

9. This order passed by the trial Court was subject-matter of challenge before the learned Single Judge in Writ Petition No. 4756 of 2004. The learned Single Judge, for the reasons recorded in his judgment and order dated 25-2-2005, dismissed the writ petition and thereby confirmed the order passed by the learned trial Court on 4-10-2004. Hence, this appeal.

10. The trial Court, after taking into consideration the admitted facts, found that in reality no dispute as to title over the suit house was in existence and that the appellant, on being satisfied that respondent No. 1 was exclusive owner of the suit property, filed the suit for specific performance on the basis of agreement of sale. It was in that background that the trial Court found that the story put forth by the appellant regarding the cloud of dispute over the title of suit house propounded by the appellant was false. That, in fact, accepting the contention of respondent No. 1 that the appellant did not deposit the amount in the scheduled time as per the decree passed because the appellant could not make provision for said a huge amount, the trial Court found that the application filed by the appellant was mala fide seeking extension of time. This led the trial Court to reject the application and refuse to grant discretionary relief to the appellant to deposit the amount. Therefore, the trial Court further came to the conclusion that it was the appellant who has wilfully committed breach of contract and as such, he was not in real sense ready and willing to perform his part of contract and ultimately, the trial Court allowed the application filed by the respondent No. 1 declaring rescission of contract.

11. The learned Single Judge, on perusal of the order impugned, confirmed the findings recorded by the trial Court in the backdrop of the undisputed facts.

12. Mr. Bhangde, learned Counsel for the appellant vehemently contended that the approach of the trial Court as well as that of learned Single Judge was ex-facie illegal and perverse inasmuch as the Courts have overlooked the dispute as to title of the suit house raised by respondent Nos. 2 to 6 in response to notice and publication issued by the appellant. It is submitted that the conduct of respondent No. 1 in leaving the suit house property after passing of the decree, so also occupation of the suit house exclusively by respondent Nos. 2 to 6 after the decree was passed and respondents having expressed to the appellant about their dispute vis-a-vis the suit house property against respondent No. 1 was sufficient to entertain a doubt as to title in the suit property. It is contended, therefore that the trial Court, on the basis of the events that took place even after passing of the decree and conduct exhibited by respondent No. 1 on one hand and rest of the respondents on the other hand, ought to have held that in reality there was dispute as to title over the suit property which justified the appellant for not depositing the amount within the stipulated time. Therefore, it is vehemently contended by the learned Counsel that the Courts below should have used discretion in granting relief sought for by the appellant for extension of time. It is also submitted that the Courts below have overlooked the fact that the appellant was all the while ready and willing to deposit the amount. It is pointed out from the judgment of the trial Court that the Court has, on the basis of the evidence on record at the trial, reached to the conclusion that the appellant was ready and willing to perform his part of contract. The trial Court has rejected the defence of respondent No. 1 when he has denied existence of agreement of sale in respect of the suit property. The learned Counsel for the appellant placing reliance on the decision of the Madras High Court in 1970(1) Madras Law Journal Reports, Page 92 and that of the Apex Court reported in 2004(9) SCALE 184 submitted that the Courts below have failed to appreciate that in such cases the right question to be posed was that whether there was positive refusal on the part of the appellant/decree holder to comply with the obligations imposed upon him. It is submitted that merely because the Courts below found that the application filed by the appellant was not bona fide, the Courts refused to use discretion in favour of the appellant.

13. Mr. Purohit, learned Counsel appearing for respondent No. 1 supported the findings recorded by the trial Court as well as the learned Single Judge. In the first place, he submitted that as has been observed by the learned Single Judge and rightly so, the writ petition was found to be precisely under Article 227 of the Constitution of India. The present appeal under Clause 15 of the Letters Patent of the Bombay High Court is not maintainable. To substantiate this, the learned Counsel for the respondents placed reliance on the decision of our High Court in : 2004(4)MhLj1105 , Manasaram Sampat Patil (since deceased through his Lrs. Smt. Banubai Mansaram Patil and Ors.) v. Sambhu Harchand Chaudhary (since deceased through his LRs. Smt. Sumanbai w/o Harchand Chaudhary and Ors.). It is observed that looking to the contents of the petition, the petition in effect is filed under Article 227 of the Constitution and to an appeal against the judgment delivered by the Single Judge, exercise of jurisdiction under Article 227 of the Constitution of India is expressly barred by Clause 15 of the Letters Patent of Bombay High Court.

14. Even on merits the learned Counsel for the respondents submitted that the Courts below have given a concurrent finding that the application filed by the appellant was mala fide. That there was no evidence to show that the appellant was ready and willing to perform his part of contract and more particularly, as regards depositing the amount of consideration within the stipulated time as provided under the decree. Therefore, the Courts below have rightly refused to exercise the discretion in favour of the appellant. He, therefore, submitted that the appeal merits no consideration at all and the same should be dismissed.

15. As regards maintainability of appeal, the learned Counsel for the appellant has placed reliance on the decision in : (1999)IILLJ600SC , Lokmat Newspaper Pvt. Ltd. v. Shankarprasad. In that case before the Apex Court, the point No. 1 that was for consideration was 'whether respondent's Letters Patent Appeal was maintainable?' In answer to that point, the Apex Court observed thus:

the writ petition invoking jurisdiction of the High Court both under Articles 226 and 227 of the Constitution had tried to make out a case for High Court's interference seeking issuance of an appropriate writ of certiorari under Article 226 of the Constitution of India. It is true that the order of the Single Judge nowhere stated that the Court was considering the writ petition under Article 226. It is equally true that the Single Judge dismissed the writ petition by observing that the Courts below had appreciated the contentions and rejected the complaint. But the said observation of the Single Judge did not necessarily mean that he was not inclined to interfere under Article 227 only when he dismissed the writ petition of the respondent. The said observation equally supports the conclusion that the Judge was not inclined to interfere under Articles 226 and 227. He was considering the aforesaid writ petition moved under Article 226 as well as Article 227. It was open to the respondent to invoke the jurisdiction of the High Court both under Articles 226 and 227. Once such a jurisdiction was invoked and when his writ petition was dismissed on merits, it cannot be said that the Single Judge had exercised his jurisdiction only under Article 227. This conclusion directly flows from the relevant averments made in the writ petition and the nature of jurisdiction invoked by the respondent. Consequently, it could not be said that Clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of the Single Judge. The appellant being the respondent in Letters Patent Appeal joined issues on merits and did not take up the contention that the Letters Patent Appeal was not maintainable. For all these reasons, therefore, the primary objection to the maintainability of the Letters Patent Appeal has to be repelled.

16. In the context of controversy regarding maintainability of Letters Patent Appeal arising out of the judgment of the Single Judge in Writ Petition under Articles 226 and 227 of the Constitution, we find ourselves fortified in referring to the decision of the Apex Court in : AIR2003SC3044 , Surya Dev Rai v. Ram Chander Rai and Ors. In para 38 of the judgment, the Apex Court observed thus :

Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder :

(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by Civil Procedure Code Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting the flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the Act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable direction so as to guide the subordinate Court as to the manner in which it would Act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case.

17. In para 39 of the judgment, the Apex Curt observed thus :

Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a strait-jacket formula or rigid rules. Not less than often, the High Court would be faced with a dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the judge.

18. Now coming to the case at hand, as could be seen from the judgment of the learned Single Judge and as has been expressly said by the learned Single Judge in the judgment, though the petition was titled as the petition under Articles 226 and 227 of the Constitution of India, the learned Single Judge has treated the petition to have been filed under Article 227 of the Constitution. The learned Single Judge, after having assessed the facts and circumstances of the case in the light of the evidence on record, concurred with the findings of the trial Court that the application moved by the appellant was mala fide. We have also, on the basis of submissions made before us by the learned Counsel for the parties, tried to scrutinize the findings recorded by the trial Court without being influenced by the findings recorded by the trial Court and the learned Single Judge. We have found that the alleged dispute as to title to the suit property, as apprehended by the appellant after passing of the decree, was imaginary and therefore, we have no hesitation in holding that his application for extension of time was mala fide. Therefore, the trial Court has rightly observed that the application filed by the appellant was not simpliciter for extension of time. Therefore, we confirm the findings recorded by the trial Court as well as that of the learned Single Judge. In that context, we also observe that no other reasonable view is possible in the facts and circumstances of the case. Therefore, the order passed by the trial Court, which was confirmed by the learned Single Judge cannot be said to be perverse or illegal or much less erroneous. In that view of the matter, we find that no interference is called for in the present appeal even on merits of the case. In addition to that, we hold that the writ petition was precisely under Article 227 of the Constitution of India/Considering the legal position as per pronouncement of the Apex Court and this High Court referred above, this appeal is not maintainable and the same is liable to be dismissed.

19. It is true that we have, as has been done by the learned Single Judge, confirmed the order passed by the learned trial Court in the application filed by respondent No. 1 bearing R.M.J.C. No. 59 of 2004. By that order, the learned trial Court has held that respondent No. 1 is entitled to rescind the contract. The learned Single Judge has confirmed the order as he has found that there could be no interference in the writ jurisdiction. We have also dismissed this appeal. This was because the Writ of Certiorari or exercise of supervisory jurisdiction is not available to correct mere error of fact or of law. Intervention is still then permissible when the requirements, as stated in the earlier part of the judgment, are satisfied.

20. But we have no hesitation in saying that the order passed in R.M.J.C. No. 59 of 2004 to some extent suffers from illegality. In that application, the respondent No. 1 has sought for recession of contract on the ground that the appellant has failed to get the contract executed as per the decree passed by the Court. The trial Court merely finding that the appellant's application for extension of time was mala fide, concluded that the respondent No. 1 is entitled for recession of contract and as such, held that the contract stood rescinded. In our opinion, both the issues are independent. This is in the sense for declaring that the contracts stands rescinded, there must be specific finding of fact that the purchaser, under the agreement of sale, was not willing to perform his part of contract or that he has specifically refused to perform his part of contract or that he has intentionally abandoned the contract. In the instance case, merely because the appellant did not deposit the amount of consideration in the scheduled time, it cannot be inferred even that he has abandoned or denied or refused to perform the contract. The reason for not depositing the amount, though found to be concocted or false, that by itself, in our opinion, is not sufficient to hold that the respondent No. 1 is entitled to rescind the contract. But we have confirmed the order passed by the trial Court only for the reason that the error of law was found to be not patent or per se illegal and that is the reason why we did not find any error in the approach of the learned Single Judge in exercising the writ jurisdiction.

21. At this stage, Mr. Bhangde, learned Counsel appearing on behalf of the appellant submitted that since there was another order operating for a considerable length of time, this Court should protect the interest of the appellant by extending the interim order for a further period of eight weeks. In view of the view that has been taken by us, we are not inclined to accept the said request.

22. However, Mr. Purohit, learned Counsel appearing on behalf of respondent No. 1 fairly submitted that since the interim order was operating for a considerable length of time, respondent No. 1 shall not create any third party interest in the suit property for a period of six weeks from today.

In the result, we passed the following order.

ORDER

The appeal is dismissed with no orders as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //