IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7008 OF 2012
[Arising out of SLP (Civil) No. 2703 of 2010]
Kamlesh Ambalal Contractor & Others .. Appellants
Versus
Jakshibhai Sajanbhai Bharvad & Others .. Respondents
J U D G M E N T
K.S. Radhakrishnan, J.
1. The application for impleadment is allowed.
2. Leave granted.
3. We heard Shri Dushyant A. Dave, learned senior counsel appearing for
the appellants and Shri C.A. Sundram, learned senior counsel appearing for
the contesting respondents at length. For the disposal of these appeals,
we feel it unnecessary to examine the various contentions urged by learned
senior counsel on either side. Reference to few facts would be suffice
since we are inclined to set aside the judgments of all the courts below
and direct learned Principal Senior Civil Judge, Ahmedabad (Rural) to take
up Regular Civil Suit No. 516 of 2008 filed by the appellants herein for
fresh consideration in accordance with law.
4. The appellants herein were the plaintiffs in RCS No. 516 of 2008
filed before the learned Principal Senior Civil Judge, Ahmedabad (Rural).
The suit was instituted claiming following reliefs:
“A. To declare that there is no right, title or interest of
the defendants on the suit property as mentioned in paragraph
No.1 of the suit.
B. To declare that defendants, their agents, servants or
representatives, assignee, executor, power of attorney holder,
legal heirs or any other persons cannot transfer, sell, alienate
and assign the suit property as mentioned in paragraph No.1 of
the suit to any other person, institution or third party and
further to declare that no charge or lien would create by the
defendants side of any type on the suit property and further to
declare that defendants cannot execute any documents in relation
to sell and further to grant the stay in favour of plaintiff and
against defendants.
C. Any other and further relief as may be deemed fit and
proper in the interest of suit property.
D. To award the cost on the defendants.”
Respondents 1 to 9 were the defendants in that suit and they were stated to
have been represented by the Power of Attorney holder (for short ‘PA
holder’). In the body of the plaint, it was stated as follows:
“For and on behalf of as Power of Attorney Holder Shri
Bharatbhai Girdharilal Pandya”
5. That suit was instituted on 19.07.2008 and for and on behalf of
defendants 1 to 9 therein, PA holder Shri Bharatbhai Girdharilal Pandya
accepted the summons, so no separate summons were taken out to defendants 1
to 9. The court appointed a Court Commissioner to survey the suit
property. The Commissioner on 20.07.2008 visited the suit property and
submitted his report. On 25.07.2008, a compromise was arrived at, not
signed by defendants 1 to 9 but by the PA holder and, consequently a
consent decree was passed.
6. Defendants 1 to 9 later came to know of such a decree and alleging
that it was a collusive decree obtained by the plaintiffs in connivance
with the PA holder, filed RCA No. 34 of 2008 before the Court of Presiding
Officer, Fast Track Court No.5 at Ahmedabad (Rural). The appeal was
elaborately heard by the court and the following order was passed:
“Appeal of the appellant is allowed and order passed below
Exh.5 is hereby confirmed.
Consent decree dated 25.07.2008 passed by Additional Second
(JD) Civil Judge Ahmedabad Rural in RCS NO. 516 of 2008 as per
alleged consent terms purshis of parties at Exh.15 are hereby
set aside and matter of RCS No. 516 of 2008 is remanded to the
court below for being decided in accordance with law and on
merits after giving sufficient opportunity to the parties i.e.
appellants and respondents to prove their respective contentions
in respect of the payment of the amount of consideration.
Order passed below Exh.5 in appeal shall have to be
implemented till final disposal of the suit before trial court.
One copy of this order is sent along with this for the
purpose of record.
Pronounced in open court today, this 24th April, 2009 in
open court.”
7. Aggrieved by the judgment of the lower appellate court, plaintiffs
preferred an appeal before the High Court of Gujarat at Ahmedabad and the
same was dismissed vide its judgment dated 07.12.2009. Against the said
judgment of the High Court, this appeal has been preferred. Respondents
herein, who were defendants 1 to 9 before the trial court, produced a
document stated to have been executed by them cancelling the power of
attorney on 31.12.2007. In fact, the lower appellate court referred to
that cancellation deed dated 31.12.2007 in the judgment, but the same was
not produced before that court.
8. Shri C.A. Sundaram, learned senior counsel appearing for the
contesting respondents, submitted that they could not produce the
cancellation deed because no summons were served on them by the trial
court. We are informed that after cancellation of the power of attorney,
defendants 1 to 9 had executed a sale deed on 16.07.2008 in favour of one
Rajendra Natvarlal Patel.
9. Shri Dushyant A. Dave, learned senior counsel appearing for the
appellants, however, submitted that the respondents were effectively
represented by the PA holder before the trial court and the parties have
rightly agreed for a consent decree and the lower appellate court and the
High Court were not justified in setting aside the consent decree passed by
the trial court.
10. We are, in the facts and circumstances of the case, inclined to
affirm the course adopted by the lower appellate court since, on facts, we
are convinced that no effective opportunity was given to defendants 1 to 9
for properly prosecuting their case. The General Power of Attorney
executed on 11.10.2005 and its alleged cancellation on 31.12.2007 and the
various steps taken by the PA holder before and after its cancellation and
their legality are all matters to be examined by the trial court so also
the impact of Earnest Agreement dated 11.10.2005 and Possession Agreement
dated 11.10.2005 etc. Various other contentions are also raised by the
learned senior counsel on either side. Since we are remitting the matter
to the trial court for fresh consideration, we are not dealing with those
contentions, nor are we expressing any opinion with regard to the impact of
the various agreements, sale deeds etc. executed between the parties. In
short, we are leaving all the questions open to the trial court to decide
in accordance with law. Consequently, consent decree passed by the trial
court on 25.07.2008, the judgment of the lower appellate court dated
24.04.2009 and the judgment of the High Court dated 07.12.2009 are set
aside and the matter is remitted to the trial court for fresh consideration
in accordance with the law. The appeal is, therefore, disposed of, with no
order as to costs.
……………………………….J.
(K.S. Radhakrishnan)
..………………………………J.
(Dipak Misra)
New Delhi,
September 26, 2012
