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IN THE HIGH COURT OF BOMBAY at Nagpur
Z.A. HAQ, J.
Shobha Janardhan Masram – Appellant
Versus
Ganpat Gulabrao Thakre – Respondent
Writ Petition No. 3527 of 2010
Decided on: 10-02-2015
Constitution of India - Article 226 Writ petition. - Failure of petitioner to challenge judgment and decree of Gram Nyayalaya dismissing her suit, disentitled petitioner to challenge legality of decree in writ petition. The petitioner had filed the appeal challenging the judgment and decree passed by the Gram Nyayalaya before the District Court and the prayer made by the petitioner in the memorandum of appeal is as follows :
"It is therefore most humbly prayed that this Hon’ble Court be pleased to call for the record from the learned Lower Court in R.C.S. No. 125/06 (Smt. Shobha v. Ganpat) decided on 30.11.2009 by Nyayadhikari, Gram Nyayalaya, Wardha, Presided over by Shri R.N. Mehare and to allow the said appeal and quash and set aside the judgment and decree of the trial Court by dismissing the counter-claim of the respondent/defendant."
The petitioner had not challenged the judgment and decree passed by the Gram Nyayalaya dismissing the civil suit filed by the petitioner. The petitioner having not challenged the judgment and decree passed by the Gram Nyayalaya dismissing the Regular Civil Suit No. 125/2006, the petitioner cannot challenge the legality and validity of the judgment and decree passed by the Gram Nyayalaya dismissing her civil suit, in this writ petition.
Gram Nyayalayas Act, 2008 - Section 13(2) Constitution of India, Article 226 Civil Procedure Code, 1908, Section 2(2) Jurisdiction of Gram Nyayalayas. Pecuniary jurisdiction of Gram Nyayalayas neither objected before Gram Nyayalaya nor in appeal, cannot be objected in writ petition. The civil suit came to be transferred from the Civil Court to Gram Nyayalaya after recording of the evidence. If the petitioner intended to take objection to the pecuniary limits of the jurisdiction of the Gram Nyayalaya, it was incumbent on the part of the petitioner to raise the objection before the Gram Nyayalaya at that stage. The petitioner failed to take the objection before the Gram Nyayalaya and had not taken objection relating to the pecuniary limits of the Gram Nyayalaya in the appeal before the District Court. In view of the provisions of Section 21(2) of the Code of Civil Procedure. Court is not inclined to consider the objection as raised by the petitioner to the pecuniary limits of the Gram Nyayalaya, in the writ petition.
Gram Nyayalayas Act, 2008 - Schedule II, Part I, Item (i)(a) Jurisdiction of Gram Nyayalaya. Gram Nyayalaya has jurisdiction to entertain and decide suit for specific performance and counter-claim for possession of suit field. The Gram Nyayalaya has jurisdiction to entertain and decide the civil suit praying for decree of specific perform and the counter-claim praying for decree for possession of the suit field.
The submission that the entry in Item (i)(a) in Part I of the Second Schedule to the Gram Nyayalayas Act, 2008 empowers the Gram Nyayalaya to decide the civil disputes in respect of the rights relating to the amenities in the property, is misconceived. If the submission is accepted, it would result in misreading the entry "right to purchase of property". As per normal rule of interpretation, the words used in the statute has to be given their natural meaning and any meaning which restricts the jurisdiction of the Court to deal with the subject-matter in respect of which jurisdiction is conferred by the statute, has to be avoided. The entry in Item (i)(a) in Part I of the Second Schedule to the Gram Nyayalayas Act, 2008 is clear and it cannot be given a restrictive meaning as submitted on behalf of the petitioner.
The Gram Nyayalaya has the jurisdiction to entertain and decide the civil suit relating to "right of purchase of property" and consequently the Gram Nyayalaya can entertain and decide the civil suit praying for decree for specific performance of the contract in respect of the property which is situated within its jurisdiction.
Section 23 of the Gram Nyayalayas Act, 2008 lays down that the provisions of the Code of Civil Procedure, in so far as hey are not inconsistent with the provisions of the Gram Nyayalayas Act, 2008, shall apply to the proceedings before the Gram Nyayalaya and for the purposes of the said provisions of the Code of Civil Procedure, the Gram Nyayalaya shall be deemed to be the Civil Court. The provisions of Order VIII, Rule 6-A of the Code of Civil Procedure not shown to be inconsistent with any provision of the Gram Nyayalayas Act, 2008. Consequently, the provisions of the Order VIII, Rule 6-A of the Code of Civil Procedure will be applicable to the proceedings before the Gram Nyayalaya and while entertaining the counter-claim under Order VIII, Rule 6-A of the Code of Civil Procedure, the Gram Nyayalaya shall be deemed to be the Civil Court. Accordingly it has to be held that the Gram Nyayalaya has the jurisdiction to entertain and decide the counter-claim.
Limitation Act, 1963 - Article 54 - Suit for specific performance of contract. - Since non compliance of notice dated 10.11.1997 to execute sale deed amounts to refusal by defendant hence suit for specific performance of contract filed in year 2006 barred by limitation. - The civil suit filed by the petitioner is barred by limitation. In paragraph No. 4 of the plaint, the petitioner pleaded that she had requested the respondent on many occasions to obtain the written permission of the Collector to execute the sale-deed, however the respondent gave evasive replies. It is pleaded that the petitioner had sent legal notices dated 6.1.1996 and 10.11.1997 but still the respondent failed to comply with the requirements of the notices. It is pleaded that the respondent entered the suit field on 10.11.1997 and had given threats to the petitioner and therefore, complaint was made to the police on 10.11.1997 in the matter. Considering the pleadings of the petitioner, the findings recorded by the District Court on the point of limitation that the inaction on the part of the defendant in seeking permission of the Collector to execute the sale-deed inspite of the notice dated 10.11.1997 and to execute the sale-deed on 17.11.1997 amounted to refusal by the defendant, cannot be said to be illegal or suffering from any infirmity. The civil suit filed by the petitioner being time barred, it is rightly dismissed.
1. Heard Shri A.C. Dharmadhikari, the learned Advocate for the petitioner and Shri N.S. Deshpande, the learned Advocate for the respondent.
2. The petition is filed by the original plaintiff challenging the judgment and decree passed by the subordinate Court dismissing the claim of the original plaintiff for specific performance of the contract and allowing the counter-claim filed by the original defendant and granting decree in favour of the defendant for possession of the suit field.
3. The plaintiff filed the civil suit contending that an agreement to sale the property was executed by the defendant in favour of the plaintiff on 25-11-1994, by which the defendant agreed to sell the suit field to the plaintiff for Rs.50,000/-, that the plaintiff had paid Rs.15,000/- to the defendant at the time of the agreement and the plaintiff was put in possession of the suit field. The plaintiff pleaded that according to the agreement, the defendant was required to obtain written permission from the Collector to execute the sale-deed and after obtaining the written permission, the sale-deed was to be executed by the defendant on receiving the balance amount from the plaintiff. The plaintiff pleaded that the defendant had not applied for the written permission and the plaintiff had issued notices dated 06-01-1996 (Exhibit 42) and 10-11-1997 (Exhibit 40) which were neither replied nor any action was taken by the defendant in the matter. The plaintiff pleaded that the defendant tried to obstruct the possession of the plaintiff on 10-11-1997 and therefore, a complaint was made to the police. The plaintiff pleaded that the defendant along with his wife entered the suit field on 17-05-2006 and attempted to plough it and therefore, the plaintiff was required to file the civil suit praying for the decree for specific performance of the contract, for perpetual injunction and other ancillary reliefs.
4. The defendant filed the written statement opposing the claim of the plaintiff. The defendant pleaded that the plaintiff indulged in money lending. In 1994, the plaintiff required some money and therefore, he approached the plaintiff and the plaintiff had given the loan and had got executed the agreement as security for the loan. The defendant contended that the plaintiff was not put in possession of the suit field, however the plaintiff was in possession of the suit field in view of the order of temporary injunction which was passed in the civil suit and therefore, the defendant filed the counter-claim praying for the decree for possession of the suit field.
5. The civil suit was filed in the Civil Court, Wardha. After the evidence of the parties was recorded, the civil suit was transferred to the Court of Nyayadhikari, Gram Nyayalaya, Sewagram which is established under the provisions of Gram Nyayalayas Act, 2008.
6. The learned Nyayadhikari, by the judgment dated 30-11-2009, concluded that the plaintiff proved that the agreement to sale was executed by the defendant in favour of the plaintiff on 25-11-1994, that the plaintiff had paid Rs.15,000/- to the defendant as earnest money, that the sale-deed was to be executed after the plaintiff obtained written permission from the Collector to sell the property. The learned Nyayadhikari concluded that the plaintiff failed to prove that he was ready and willing to perform her part of the contract and that the plaintiff was entitled for the decree for specific performance of the contract and for permanent injunction. The learned Nyayadhikari concluded that the defendant failed to prove that the suit transaction was money lending transaction and hit by the provisions of the Bombay Money Lenders Act. The learned Nyayadhikari concluded that the defendant is entitled for possession of the suit field from the plaintiff. The learned Nyayadhikari accordingly dismissed the civil suit filed by the plaintiff and allowed the counter-claim filed by the defendant and directed the plaintiff to handover the possessio
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