IN THE HIGH COURT OF BOMBAY
Writ Petition No. 7688 of 2013
Decided On: 18.02.2015
Mukund Iron Staff Association Co-op. Housing Society Ltd.
Vasant Ramchandra Patil and Ors.
R.M. Savant, J.
Citation: 2016(3) ALLMR 721
- Rule, with a determine of a schooled warn for a parties finished returnable forthwith and heard.
- The command office of this Court is invoked opposite a sequence antiquated 2/8/2013 upheld by a schooled Judge of a City Civil Court, Greater Bombay by that sequence a Application being Notice of Motion No.2461 of 2013 filed by a Petitioner/Plaintiff for re-calling of a declare and tendering additional confirmation of conference in chief, for heading justification in terms of Section 16(c) of a Specific Relief Act, 1963 came to be rejected.
- Shorn of nonessential details, a few facts, that are compulsory for a adjudication of a above Petition, can be settled so :- The Petitioner herein is a strange Plaintiff and a Respondents herein are a strange Defendants in a fit that was primarily filed in this Court being H C Suit No.2526 of 1988. The pronounced fit was filed for specific opening of 4 agreements antiquated 13/2/1975 in honour of 4 pieces of land that were resolved to be sole to a Plaintiff. The Plaintiff is a Co-operative Housing Society of a employees of one Mukund Iron. It seems that a Plaintiff had also purchased other plots of land from a Defendants. The Defendants, it seems had conveyed a other plots of land that were purchased yet in annoy of carrying been called on to do so had unsuccessful to govern a vehicle deeds in honour of a 4 plots of land lonesome by a agreements antiquated 13/2/1975. The Plaintiff was therefore compelled to record a fit in doubt for specific performance.
- In a context of a plea lifted in a benefaction Petition, it is compulsory to be remarkable that in Paragraph 14 of a plaint, a Plaintiff has referred to a letters by that a Plaintiff had called on a Defendants to govern a vehicle and it has been averred that a Plaintiffs have shown their eagerness and eagerness to recompense a change of a squeeze cost viz. Rs.7,67,250/- yet a Defendants on one stratagem or a other have unsuccessful and neglected to come brazen to govern a vehicle in honour of a pronounced remaining area quite a lands lonesome by a 4 agreements. The pronounced divide is followed by paragraphs 15 and 16 in that paragraphs a Plaintiff has serve reiterated a box in honour of a eagerness and willingness.
- The Defendants have filed their created matter pursuant to that a Issues came to be framed by a schooled Single Judge of this Court on 3/12/2009 and among a issues framed was Issue No.4 that reads so :-
“Issue No.4 : Whether a Plaintiffs infer that they were always prepared and peaceful and are still prepared and peaceful to perform their partial of a agreements?
It is afterward that a Commissioner came to be allocated for recording of justification by a schooled Single Judge of this Court. The confirmation of justification was filed by a Plaintiff on 13/1/2010 along with a gathering of documents. The papers were numbered on 29/4/2011 while a fit was tentative in this Court. The Commissioner afterward available a justification and a 3 sets of Defendants being Defendant Nos.1(A) to 1(C), Defendant Nos.5 to 15, and a Defendant Nos.2(D) and 2(E) have cranky examined a Plaintiff’s declare that cranky conference lonesome a aspect of a eagerness and eagerness of a Plaintiff.
- The fit came to be eliminated to a City Civil Court, Greater Bombay in Oct 2012 on a financial office of a City Civil Court being enhanced. The Plaintiff sealed a justification on 21/6/2013. The Defendants did not lead any justification and accordingly sealed their evidence. The fit is therefore during a theatre where a arguments are to be heard. However, on 29/6/2013 an focus came to be filed by a Defendant Nos.2(c) and 2(d) for directions to be released to a Plaintiff to furnish a papers that have been mentioned in divide 14 of a plaint. The pronounced papers describe to a eagerness and eagerness of a Plaintiff. The pronounced focus came to be deserted by a Trial Court by an sequence upheld on a same day on a belligerent that a pronounced focus could not be authorised and if a Plaintiff fails to furnish a papers mentioned in divide 14 of a plaint, afterwards inauspicious deduction would be drawn opposite a Plaintiff. It is afterward that a benefaction Notice of Motion being No.2461 of 2013 came to be filed by a Plaintiff for a reliefs that have been adverted to in a progressing partial of this order. In a confirmation in support of a Motion a belligerent settled therein is that due to inadvertence a averments relating to a papers in support of a box of eagerness and eagerness were not finished in a confirmation in conference in arch filed by a Plaintiff. Hence leave of a Court was sought for recalling of a Plaintiff’s declare and for accede to record additional confirmation of conference in arch of a Plaintiff’s witness.
- The pronounced focus was opposite to on seductiveness of a Defendant Nos.1(A) to 1(C) by filing confirmation in respond of one Dr. Nitin Vasant Patil. The dispute was on a belligerent of check as also on a belligerent that yet a papers have been mentioned in a plaint, a Plaintiff has not assembled a same, and therefore, a Trial Court has upheld an sequence on a focus filed by a Defendant Nos.2 (c) and 2(d) for inauspicious deduction being drawn opposite a Plaintiff. It is on a pronounced belligerent that a Notice of Motion was opposite to on seductiveness of a pronounced Defendant Nos.1A to 1C.
- The Trial Court deliberate a pronounced Application being Notice of Motion No.2461 of 2013 and as indicated above by a impugned sequence deserted a same. The crux of a logic of a Trial Court is that given a focus is referable to Order XVIII Rule 17 of a Code of Civil Procedure, and given a justification of a Plaintiff is complete, a Application could not be authorised as a same would volume to stuffing adult a lacuna in a justification of a Plaintiff. The Trial Court has relied on a visualisation of a Apex Court reported in MANU/SC/0448/2009 : (2009) 4 SCC 410 in a matter of Vadiraj Naggappa Vernekar (Dead) Through LRs v/s. Sharadchandra Prabhakar Gogate. The Trial Court celebrated that a supplies of Order XVIII Rule 17 of a Code of Civil Procedure can be invoked usually for a purpose of clarifying a element that has been placed on record in sequence to strech a correct finish and could not be invoked to fill adult a lacuna in a evidence. The Trial Court accordingly by a impugned sequence antiquated 2/8/2013 has deserted a pronounced focus being Notice of Motion No.2461 of 2013. As indicated above it is a pronounced sequence antiquated 2/8/2013 that is taken difference to by approach of a above Writ Petition.
- Heard a schooled warn for a parties. The schooled warn appearing on seductiveness of a Petitioner Shri S M Oak would contend that in terms of a law laid down by a Apex Court in Vernekar’s box (supra) as also a visualisation of a Apex Court reported in MANU/SC/0267/2011 : (2011) 11 SCC 275 in a ] matter of K K Velusamy v/s. N Palansamy, a Trial Court is not unable in needing a focus for recalling of a declare and for needing a Plaintiff to cite additional justification if seductiveness of probity so requires. The schooled warn for a Petitioner would contend that in a benefaction box a wail ex-facie discloses that a averments relating to a eagerness and eagerness have already been finished and therefore this is not a box where a Plaintiff is seeking accede to lead justification in honour of a eagerness and eagerness in a deficiency of pleadings. The schooled warn would contend that it is by inadvertence or mistake that a averments relating to a papers to strut a box of a Plaintiff as regards a eagerness and eagerness remained to be incorporated in a confirmation of conference in chief. The schooled warn in support of this row would placed faith on a visualisation of a Apex Court in Velusamy’s box (supra) and would contend that a peerless caring has to be a seductiveness of justice. The schooled warn would contend that grave influence would be caused to a Plaintiff, if a Application is not authorised as in a deficiency of a pronounced justification grave influence would be caused to a Plaintiff. The schooled warn would pull a Court’s courtesy to a fact that pursuant to a agreements to sale and a energy of profession executed by a Defendants, 15 buildings have been assembled in a midst eighties wherein a members of a multitude are residing, a buildings are assembled on a lands that have been conveyed as also a lands lonesome by a agreements in honour of that specific opening is sought as all a plots have been amalgamated.
- Per contra, a schooled warn appearing on seductiveness of a Respondent Nos.1(a) to 1(c) Shri Merchant would contend that a Plaintiff carrying been cranky examined extensively by a Defendants even on a aspect of eagerness and eagerness can't be now available to lead additional justification as a same would volume to Plaintiff being available to lead justification to fill adult a lacuna that is there in a evidence. The schooled warn drew this Court’s courtesy to a cranky conference of a Plaintiff’s declare that was conducted before a Court Commissioner on a aspect of eagerness and willingness. The schooled warn would contend that yet a Apex Court has hold that in a seductiveness of probity a march of movement of recalling a declare can be permitted. The contribution of a box before a Apex Court in Vernekar’s box (supra) are matching to a contribution of a benefaction box and therefore a Apex Court in a pronounced box carrying refused to assent additional justification from being led, a same analogy would have to be practical to a Plaintiff in a benefaction box as in a benefaction box a Plaintiff was really good wakeful of a element that it had to place on record in honour of a box of a eagerness and eagerness and carrying not finished so, a Plaintiff now can't be available to cite additional justification and move a pronounced papers on record. The schooled warn sought to heed a visualisation of a Apex Court in Velusamy’s box (supra) on a basement of a fact that in Velusamy’s box (supra) a contribution in honour of that a accede to record additional confirmation of justification was sought was in honour of a events that had taken place post a filing of a fit and in fact usually before a arguments had commenced. Such is not a box in a benefaction matter, according to a schooled warn and therefore bid of Order XVIII Rule 17 of a Code of Civil Procedure or Section 151 of a Code of Civil Procedure can't be permitted.
- The schooled warn appearing on seductiveness of a Respondent Nos.9 to 15 Shri Bodke would support a submissions finished by a schooled warn for a Respondent Nos. 1(a) to 1(c) Shri Merchant, however, in serve would contend that a benefaction Notice of Motion was filed after a focus filed by a Defendant No.2 (c) and 2(d) was deserted by a Trial Court and is therefore an afterthought. The schooled warn would contend that carrying courtesy to a justification that had come on record on seductiveness of a Plaintiff, that a Defendants did not select to lead any evidence.
- The schooled warn appearing on seductiveness of a Respondent Nos.2 (d) and 2(e) Shri Khatri would also support a submissions finished by a schooled warn for a Respondent Nos.1(a) to 1(c) Shri Merchant, however, in serve would contend that a check and laches in filing a Notice of Motion has not been scrupulously explained by a Plaintiff, and therefore, this Court would not assent a Plaintiff to plead Order XVIII Rule 17 of a Code of Civil Procedure or Section 151 of a Code of Civil Procedure.
- Having listened a schooled warn for a parties, we have deliberate a opposition contentions. The doubt that is acted in a above Petition is possibly a Plaintiff should be authorised to lead additional justification and thereby re-open a evidence. To answer a pronounced doubt a contribution that have been narrated herein above would have to be re-visited. As indicated above, a fit in doubt has been filed for specific opening of 4 agreements antiquated 13/2/1975 in honour of a 4 plots of land. It appears that a owners had also resolved to sell other tract of lands to a Plaintiff’s society, save and solely a 4 lands that are a theme matter of a 4 agreements of that specific opening is sought, a other lands have been conveyed to a Plaintiff society. It is also compulsory to be remarkable that pursuant to a agreements to sale and a energy of profession executed by a owners a Plaintiff multitude has assembled 15 buildings for a members, that members as mentioned herein above are belonging to a association famous as Mukund Iron. It seems that a pronounced construction was carried out after a alliance of all a plots. The pronounced buildings have been assembled in a early eighties and are currently in function of a Plaintiff’s members. In so distant as a agreements in doubt are concerned, as indicated herein above, in paragraphs 14 to 16 a Plaintiff has pleaded a box of eagerness and eagerness to perform a partial of a agreements and has also pleaded a refusal of a Defendants to reside by a terms and conditions of a agreements. The Plaintiff has also referred to a papers in support of a pronounced box that find place in divide 14 of a plaint. No doubt a confirmation of justification of a declare of a Plaintiff was filed wherein a justification in honour of a box of a eagerness and eagerness of a Plaintiff remained to be incorporated. The declare of a Plaintiff has been cranky examined also on a aspect of eagerness and willingness. The fact that a Defendants have selected to cranky inspect a Plaintiff’s declare on a aspect of eagerness and eagerness shows that a parties were meaningful as to in honour of what matters they were litigating. The stress of a Defendants can also be seen from a fact that a Defendant Nos. 2(c) and 2(d) had filed a focus for a instruction to be released to a Plaintiff to furnish a papers that are mentioned in divide 14. The Trial Court has deserted a pronounced focus by holding that such a instruction could not be released and if a Plaintiff does not furnish a pronounced papers afterwards inauspicious deduction can be drawn opposite a Plaintiff. It is afterward that a benefaction Notice of Motion came to be filed for a service that has been adverted to herein above. In so distant as Order XVIII Rule 17 of a Code of Civil Procedure is concerned, a same has been a theme matter of interpretation from time to time. The Apex Court in Vernekar’s box (supra) was also endangered with a focus finished by a Plaintiff in a pronounced box for being available to lead additional evidence. The Apex Court in a contribution of a pronounced box had come to a finish that a chairman who had filed a confirmation of justification was meaningful a contribution right from a commencement and therefore did not assent a Plaintiffs in a pronounced box to cite a additional justification as a Apex Court was of a perspective that extenuation accede in a pronounced box would volume to a Plaintiffs being available to fill adult a lacuna in a evidence.
- The pronounced sustenance had also come adult before a Apex Court for interpretation in Velusamy’s box (supra). In a pronounced box applications by a Defendant/Appellant underneath Order XVIII Rule 17 and Section 151 of a Code of Civil Procedure were for remember of a declare and for heading and/or reopening a justification filed on a basement that after a fit was set down for arguments, a review between a Plaintiff and a Defendant and some of a witnesses was recorded, that review disclosed that a transaction was in a inlet of a income lending transaction that was a box of a Defendant in a suit. Since a compress front containing a review that had taken place during a attendant time when a fit was being listened and given a Defendant/Appellant sought to furnish a compress front as and by approach of additional evidence, that a Apex Court deemed it suitable to concede a application. The Apex Court hold that after a deletion of Order XVIII Rule 17A for reopening of justification and remember of declare for serve conference or cranky examination, for functions other than securing construction compulsory by a Court, a fundamental energy underneath Section 151 of a Code, theme to a limitations, can be invoked in suitable cases. However, in a context of a benefaction case, a observations of a Apex Court in Paragraphs 12, 14, 15 and 19 of a pronounced Report are relevant. The pronounced paragraphs are reproduced herein underneath for a consequence of prepared anxiety :-
- The respondent contended that territory 151 can't be used for re-opening justification or for recalling witnesses. We are not means to accept a pronounced acquiescence as an comprehensive proposition. We however determine that territory 151 of a Code can't be customarily invoked for reopening justification or recalling witnesses. The range of territory 151 has been explained by this Court in several decisions (See : Padam Sen vs. State of UP-MANU/SC/0065/1960 : AIR 1961 SC 218; Manoharlal Chopra vs. Seth Hiralal -MANU/SC/0056/1961 : AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar -MANU/SC/0013/1963 : AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal – MANU/SC/0263/1966 : AIR 1966 SC 1899; Nain Singh vs. Koonwarjee -MANU/SC/0426/1970 : 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India -MANU/SC/0045/1975 : AIR 1976 SC 1152; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi -MANU/SC/0246/1976 : AIR 1977 SC 1348; National Institute of Mental Health Neuro Sciences vs. C Parameshwara -MANU/SC/1063/2004 : 2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj -MANU/SC/0424/2010 : 2010 (8) SCC 1). We might promulgate them as follows:
(a) Section 151 is not a concrete sustenance that creates or confers any energy or office on courts. It merely recognizes a discretionary energy fundamental in any probity as a compulsory inference for digest probity in suitability with law, to do what is ‘right’ and remove what is ‘wrong’, that is, to do all things compulsory to secure a ends of probity and forestall abuse of a process.
(b) As a supplies of a Code are not exhaustive, territory 151 recognizes and confirms that if a Code does not privately or impliedly cover any sold procedural aspect, a fundamental energy can be used to understanding with such conditions or aspect, if a ends of probity aver it. The border of such energy is co-extensive with a need to practice such energy on a contribution and circumstances.
(c) A Court has no energy to do that that is taboo by law or a Code, by supposed practice of a fundamental powers. If a Code contains supplies traffic with a sold theme or aspect, and such supplies possibly privately or compulsory import empty a range of a energy of a probity or a office that might exercised in propinquity to that matter, a fundamental energy can't be invoked in sequence to cut opposite a powers conferred by a Code or a demeanour unsuitable with such provisions. In other difference a probity can't make use of a special supplies of Section 151 of a Code, where a pill or procession is supposing in a Code.
(d) The fundamental powers of a probity being interrelated to a powers privately conferred, a probity is giveaway to practice them for a functions mentioned in Section 151 of a Code when a matter is not lonesome by any specific sustenance in a Code and a practice of those powers would not in any approach be in dispute with what has been privately supposing in a Code or be opposite a goal of a Legislature.
(e) While sportive a fundamental power, a probity will be doubly cautious, as there is no legislative superintendence to understanding with a procedural conditions and a practice of energy depends on a option and knowledge of a court, and a contribution and resources of a case. The deficiency of an demonstrate sustenance in a regulation and a approval and saving of a fundamental energy of a court, should not however be treated as a extend blanche to extend any relief.
(f) The energy underneath territory 151 will have to be used with option and care, usually where it is positively necessary, when there is no sustenance in a Code ruling a matter, when a bona fides of a applicant can't be doubted, when such practice is to accommodate a ends of probity and to forestall abuse of routine of court.
- The nice supplies of a Code anticipate lgc 16 of 21 and design a conference probity to hear a arguments immediately after a execution of justification and afterwards ensue to judgment. Therefore, it was nonessential to have an demonstrate sustenance for re-opening a justification to inspect a uninformed declare or for recalling any declare for serve examination. But if there is a time opening between a execution of justification and conference of a arguments, for whatsoever reason, and if in that interregnum, a celebration comes opposite some justification that he could not lay his hands earlier, or some justification in courtesy to a control or movement of a other celebration comes into existence, a probity might in practice of a fundamental energy underneath territory 151 of a Code, assent a prolongation of such justification if it is applicable and compulsory in a seductiveness of justice, theme to such terms as a probity might hold fit to impose.
- The schooled warn for respondent contended that once arguments are commenced, there could be no re-opening of justification or recalling of any witness. This row is lifted by fluctuating a gathering that once arguments are resolved and a box is indifferent for judgment, a probity will not perform any interlocutory focus for any kind of relief. The need for a probity to act in a demeanour to grasp a ends of probity (subject to a need to approve with a law) does not finish when arguments are listened and visualisation is reserved. If there is abuse of a routine of a court, or if interests of probity need a probity to do something or take note of something, a option to do those things does not disappear merely given a arguments are heard, possibly entirely or partly. The gathering that no focus should be entertained once a conference or conference is resolved and a box is indifferent for visualisation is a sound rule, yet not a straitjacket formula. There can always be exceptions in well-developed or extra-ordinary circumstances, to accommodate a ends of probity and to forestall abuse of routine of court, theme to a reduction famous with anxiety to practice of energy underneath territory 151 of a Code. Be that as it may. In this case, a applications were finished before a finish of a arguments.
- We might supplement a word of caution. The energy underneath territory 151 or Order 18 Rule 17 of a Code is not dictated to be used routinely, merely for a asking. If so used, it will better a really purpose of several amendments to a Code to support trials. But where a focus is found to be bonafide and where a additional evidence, verbal or documentary, will support a probity to explain a justification on a issues and will support in digest justice, and a probity is confident that non-production progressing was for current and sufficient reasons, a probity might practice a option to remember a witnesses or assent a uninformed evidence. But if it does so, it should safeguard that a routine does not turn a protracting tactic. The probity should firstly endowment suitable costs to a other celebration to recompense for a delay. Secondly a probity should take adult and finish a box within a bound time report so that a check is avoided. Thirdly if a focus is found to be mischievous, or frivolous, or to cover adult loosening or lacunae, it should be deserted with complicated costs.”
The Apex probity has therefore hold that a need for a probity to act in a demeanour to grasp a ends of probity (subject to a need to approve with a law) does not finish when arguments are listened and visualisation is reserved. The Apex probity serve hold that if there is abuse of a routine of a Court, or if interests of probity need a probity do do something or take note of something, a option to do those things does not disappear merely given a arguments are listened possibly entirely or partly. The Apex Court has crystallized a tender of law by watching that where a focus is found to be bonafide and where a additional evidence, verbal or documentary, will support a probity to explain a justification on a issues and will support in digest justice, that a focus is compulsory to be allowed. The Apex Court therefore hold that a probity is not unable to cruise a focus for heading a additional justification filed by a Plaintiff yet a same is unerring by a tests that have been laid down by a Apex Court. The peerless caring if one can contend is that a same has to support in digest justice. In a benefaction case, a fit being one for specific performance. The aspect of eagerness and eagerness assumes significance and can be pronounced to be a defining aspect in so distant as a desert of a Plaintiff to a service of specific opening is concerned. As indicated herein above, this is not a box where for a initial time a Plaintiff wants to furnish a justification in honour of a eagerness and eagerness but there being any pleadings. The pleadings are already there in place. The parties are also wakeful as to in honour of what matters they are litigating. However, in a confirmation in justification that was filed on seductiveness a Plaintiff, a justification in that courtesy remained to be incorporated. It is compulsory to be borne in mind that a Defendants have conveyed other lands that they had resolved to sell to a Plaintiff solely 4 plots of land lonesome by a 4 agreements of that a specific opening has been sought. The fact that a lands have been assembled on and that a buildings are station thereon given a early eighties can't be mislaid steer of. The Defendants would be apparently entitled to cranky inspect a Plaintiff’s declare in honour of a additional evidence. For a check in filing a Application a Defendants can be compensated by approach of costs. However, if a focus is not authorised afterwards grave influence is expected to means to a Plaintiff carrying courtesy to a contribution and resources that are prevalent in a benefaction case. The seductiveness of probity therefore requires that a Plaintiff be given an event to lead justification in honour of a eagerness and willingness. The Trial Court seems to have taken a rarely technical perspective of a matter and has deserted a focus but holding into caring a aforesaid facts. In that perspective of a matter, a impugned sequence antiquated 2/8/2013 would have to be quashed and set aside and is accordingly quashed and set aside. The Notice of Motion No.2461 of 2013 would accordingly mount authorised and a following directions are released :-
1.] The Plaintiff to record a additional confirmation of justification usually in honour of a aspect of a eagerness and eagerness latest by 17/03/2015 when a fit in doubt is to come adult before a Trial Court.
2.] The Defendants would be entitled to cranky inspect a Plaintiff’s declare and lead come-back justification if they so hold it appropriate.
3.] The contentions of a parties on merits are kept open for being vibrated before a Trial Court during a conference of a suit.
4.] Allowing a benefaction Writ Petition should not be construed as any countenance of opinion on a merits of a suit. The fit would positively be attempted on a possess merits and in suitability with law.
5.] In a contribution and resources of a benefaction case, a Plaintiff to recompense costs of Rs.5000/- to any set of Defendants represented by a schooled warn Shri Ibrahim Merchant, Shri Abdul Khatri and Shri V N Bodke. The same to be finished on or before 17/03/2015.
6.] The above Writ Petition is authorised to a aforesaid extent. Rule is accordingly finished comprehensive with parties to bear their particular costs of a Petition.
7.] The schooled warn appearing on seductiveness of a Respondent Nos.1(a) to 1(c) Shri Merchant seeks stay of a benefaction order. In perspective of a fact that a Plaintiff has been postulated time adult to 17/03/2015, a pronounced request is rejected.