IMPORTANT POINT
A suit for specific performance based on an invalid agreement under Section 43 of the Tenancy Act, 1948 is not maintainable.

JUDGMENT :

(Divyesh A. Joshi, J.)

1. Rule returnable forthwith. Learned advocate Mr. R.J. Goswami waives service of notice of rule for and on behalf of the respondent Nos.1 and 2. The respondent Nos.3, 4 and 5, although served with the notice issued by this Court, have chosen not to appear before this Court either in person or through an advocate and oppose the present applications.

2. Since the challenge in both the applications are to the selfsame common judgment and order arising out of the same proceedings, those were heard analogously and are being disposed of by this common judgment and order.

3. For the sake of convenience, the Criminal Revision Application No.50 of 2021 is treated as the lead matter.

4. This Civil Revision Application filed under Section 115 of the Code of Civil Procedure, 1908 is arising out of the common judgment and order 12.01.2021 passed by the learned 3rd Additional Senior Civil Judge, Surat, whereby the applications submitted by the applicants-original defendant Nos.1,2 and 5 to 8 under Order VII Rule 11(d) of the Civil Procedure Code, 1908 (for short ‘CPC’) in the suit came to be rejected.

5. The facts emanating from Civil Revision Application No.50 of 2021 are that the applicants herein are the original defendant Nos.1,2 and 5 to 8 and the respondent Nos.1 and 2 herein are the original plaintiffs and the respondent Nos.3 to 5 are the original defendant Nos.3,4 and 9. For the sake of convenience, the parties herein shall be referred to in terms of their rank and status before the Trial Court.

6. The original plaintiffs preferred the suit being Special Civil Suit No.101 of 2019 against the defendant Nos.1,2 and 5 to 8 as well as against the defendant Nos.3, 4 and 9, seeking specific performance of contract, declaration, permanent injunction as also for cancellation of the sale deed, inter alia, contending therein that the land bearing Survey No.345/1 of village Rander, Taluka: Choryasi, District: Surat admeasuring 1010 square meters, which upon implementation of the Town Planning Scheme No.23, came to be reconstituted as Final Plot No.95 (for short ‘suit land’) was alleged to have been purchased by the original plaintiffs from the predecessor of the defendant Nos.1,2, and 5 to 8, for which, an unregistered agreement to sell dated 29.03.2001 came to be executed in favour of the original plaintiffs, whereby the possession of the suit property was also handed over to the original plaintiffs.

7. It is further alleged in the suit that the suit land was a new tenure land, and it was agreed upon between the parties at the time of execution of the agreement to sell that after getting permission from the competent government authority for conversion of the land from new tenure to old tenure, the sale deed would be executed in favour of the original plaintiffs, and the proposed expenses towards the said procedure had to be incurred by the predecessor of the defendant Nos.1,2 and 5 to 8. It is alleged that, despite the aforesaid understanding, the defendant Nos.1,2 and 5 to 8 failed and neglected to get the permission from the competent authority, and after lapse of some period of time, when the original plaintiffs smacked of something wrong, upon inquiry being made from the revenue office, they came to know that the suit land had also been sold to the defendant No.9 in the year 2018 after getting it converted into old tenure. As soon as the original plaintiffs came to know about the same, they immediately filed the suit, seeking decree for specific performance of contract as well as for declaration, permanent injunction and cancellation of the sale deed.

8. On being subpoenaed by the concerned trial court, the defendant Nos.1,2 and 5 to 8 appeared and filed an application Exh.17 under Order VII Rule 11 of the CPC, for rejection of the plaint, However, by a brief order, without proper application of mind, the said application came to be rejected vide impugned order dated 12.01.2021. Similarly, identical app