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2023 Supreme(Guj) 1017
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SANDEEP N. BHATT, J.
Nitin Ratilal Patel – Appellant
Versus
M/s Sushil Corporation Through Deceased Nandlal Ramanlal Thakkar Through Legal Heirs And Reps – Respondents
R/Special Civil Application No. 19766 of 2021 With Civil Application (For Orders) No. 2 of 2022 In R/Special Civil Application No.19766 of 2021
Decided on : 04-05-2023
Advocate Appeared:
For the Appellant : MR SHITAL R PATEL
For the Respondent: MR SALIL M THAKORE
The court's decision emphasized the importance of the trial court's discretion in granting extension of time for specific performance, considering the equitable considerations and conduct of the parties involved.
Headnote:
Specific Performance - Extension of Time - Order 20 Rule 12A of CPC, Section 16 and 28 of the Specific Relief Act - The court exercised its discretion to grant extension of time after giving valid reasons for doing so. The petitioner's contentions regarding rescission of contract and the preliminary nature of the decree were considered, but the court found no illegality or impropriety in the trial court's decision to grant extension. The court also noted the petitioner's failure to file a reply to the extension application and the conduct of the defendants in frustrating the decree. The court held that the trial court used its discretion appropriately and declined to interfere with the discretionary order of granting extension.
Fact of the Case:
The petition challenged an order granting extension of time for specific performance of an agreement to sale. The petitioner contended that the extension was improper due to substantial increase in land price and non-compliance with the decree. The respondents argued that the extension was well reasoned and that the petitioner's conduct disentitled them to invoke equitable jurisdiction.
Finding of the Court:
The court found that the trial court had used its discretion to grant extension after giving valid reasons for doing so. It noted the petitioner's failure to file a reply to the extension application and the conduct of the defendants in frustrating the decree. The court held that the trial court's decision to grant extension was not illegal or improper and declined to interfere with it.
Issues: The main issues were whether the extension of time for specific performance was proper, considering the substantial increase in land price and non-compliance with the decree, and whether the trial court's exercise of discretion in granting the extension was appropriate.
Ratio Decidendi: The court held that the trial court had used its discretion appropriately in granting the extension of time for specific performance. It considered the petitioner's conduct and the lack of reply to the extension application, and found no illegality or impropriety in the trial court's decision.
Final Decision: The petition was dismissed, and no orders as to cost were made. The interim relief, if any, granted earlier was vacated.
JUDGMENT :
1. At the request of learned advocates for the parties, this petition is disposed of finally. Rule. Learned advocate Mr.Salil Thakore waives service notice for respondents.
2. This petition is filed challenging the order dated 3.12.2021 passed below Exh.110 by the learned 5th Principal Senior Civil Judge, Ahmedabad (Rural) at Mirzapur, Ahmedabad in Special Civil Suit No.25 of 1984.
3. The brief facts leading to filing of this petition are such that the agreement to sale was entered with grandfather Pujabhai Ishwarbhai Patel by Sushil Corporation through Nandlal Ramanlal Thakkar on 21.3.1980 and under the agreement to sale, all legal permissions including from new to old tenure, ULC permission for due execution of sale deed had to be obtained by the plaintiff-Nandlal R Thakkar (now deceased in 2019). The total sale consideration was fixed at Rs.2,20,000/- and out of that only Rs.21,000/- was paid as earnest amount and the duration of agreement to sale was fixed 12 months and time was essence of the contract. However, the deceased plaintiff did not obtain any permission. The plaintiff filed Special Civil Suit No.25 of 1984 for specific performance of an agreement to sale dated 21.3.1980, wherein conditional decree was passed on 28.6.1983 specifically directing the plaintiff to obtain all legal permissions and if the owner do not cooperate either in taking money or in getting permission or do not execute sale deed, plaintiff was permitted to get all legal permissions through court commissioner and was directed to get the sale deed executed. The said decree was a conditional decree for 30 days, which expired on 17.7.1993.
3.1 It is further case of the petitioner that after the expiry of the period, the plaintiff made an application below Exh.110 in the said civil suit or extension of time for six weeks in above conditional decree, which six weeks also expired way back in 1993. It is further submitted that the said Exh.110 application was pending for almost ten years and suddenly on 26.8.2002, a one line ex-parte order of extension of six weeks came to be passed on 5.8.1993. It is submitted that when the order was passed on 26.8.2002, the original exclusive owner on record was already expired on 5.4.2000 and the legal heirs were not brought on the record.
3.2 It is further case that after the said extension order was passed, immediately Execution Application No.120 of 2022 was filed by the plaintiff, wherein the order was passed for appointment of Court Commissioner in 2003. That against the said one line order of extension and against the appointment of Court Commissioner, two Special Civil Applications were filed before this Court, which were admitted and interim reliefs were granted till final hearing and thereafter, both the petitions were dismissed. It is submitted that the said orders of Special Civil Applications were challenged before the Hon’ble Supreme Court, wherein the orders passed by this Court as well as the civil Court were stayed and both the SLPs were converted into Civil Appeals. Thereafter, vide order dated 24.8.2011, the order of extension dated 26.8.2002 below Exh.110 application was set aside and the matter was remitted back to the civil Court, Ahmedabad to decide the application Exh.110 in accordance with law and on its own merits keeping all contentions of the parties open. It was also mentioned in the order that all the parties shall remain present before the civil Court, Ahmedabad on 14.9.2011 without a formal notice from the civil Court.
3.3 It is the case that the petitioner herein appeared through advocate, gave applications, copies placed on record, however, the papers of the main suit were not traceable. It is submitted that instead of requesting to hear the application Exh.110, the plaintiff approached the revenue authority and for the first time, in March, 2016 the request was made to comply with the order of the Hon’ble Supreme Court. Thereafter, at the instance of the defendant-petitioner, t
