Civil Application No.10718 of 2012 has been filed to join the applicants therein as parties in the main Special Civil Application. This Court (Coram: Anant S.Dave,J.) vide order dated 1-11-2012 permitted the applicants therein to be joined as parties in the main petition. However, Civil Application was not disposed of and it was ordered to be heard with Special Civil Application.
Special Civil Application No.11458 of 2012 under Articles 226 and 227 of the Constitution of India has been filed for quashing and setting aside order dated 8-8-2012 passed by the learned Principal Senior Civil Judge, Dahod, below Ex.1 in Special Civil Suit No.55 of 2011 whereby the earlier order and decree dated 21-11-2011 passed below Ex.1 in Special Civil Suit No.55 of 2011 by the very same Judge were quashed and set aside under Sections 151 and 114 read with Order 47 of the Civil Procedure Code.
Facts in short as appearing from this petition are that the respondent No.1-Church Council Board is the owner of properties registered as A/C Nos.105 and 7190 bearing Survey Nos.1516 paiki 1516-A, 19-A-1 paiki-2, 19-A-2/2 paiki-1, 19-A/2/2 paiki-2, 19-B, in all eight survey numbers admeasuring 5 hectares 55 Are 01 sq.mtrs. and also immovable properties/land of City Survey Nos.6555 to 6558, 6589, 6597 to 6604, 6606 to 6614, 6623 to 6626, 6656, 6935, 6936, 937, 6695 to 7005 in all 34 survey Nos. admeasuring 63715.44 sq.mtrs. A resolution No.7/2010 dated 3-11-2010 was passed by the Council appointing Ratna Robinson as authorized person to take a decision in respect of above mentioned properties except forming part of Church, Church campus, land forming part of parking plot and kabrastan. On the strength of the same, a registered agreement to sell was executed by said Ratna Robinson with the petitioner-plaintiff on 26-8-2011 for a consideration of Rs.4,51,00,000/- making an amount of Rs.50.00 lakhs as Part payment of sale consideration (Rs.25.00 lakhs in cash and Rs.25.00 lakhs by two cheques of Rs.12.50 lakhs each). Inspite of having paid huge amount of Rs.50.00 lakhs, the defendant was not executing the sale deed and hence, a notice was issued upon the defendant on 18-10-2011. Although the plaintiff was ready and willing to get the sale deed executed by paying the remaining amount of sale consideration, the defendant was not executing the same. Therefore, a suit being Special Civil Suit No.55 of 2011 was filed by the plaintiff seeking specific performance of the agreement to sell in the Court of learned Senior Civil Judge, Dahod. Thereafter, a settlement was arrived at whereby the defendant agreed to execute the sale deed as per the agreement to sell and hence, consent terms were reduced in writing and an order was passed below Ex.9 in the said suit. Thereafter, an order was passed by the court below Ex.1 on 21-11-2011 to draw decree as per the order passed below Ex.9 and the suit was disposed of by order dated 21-11-2011. The plaintiff thereafter submitted an Execution Application No.3 of 2011 in the said court for appointment of Court Commissioner for execution of sale deed. The court vide order dated 17-7-2012 appointed a Court Commissioner and sale deed was executed in respect of one of the survey numbers forming part of suit and decree. Thereafter, in pursuance of a communication dated 6-8-2012 submitted under the letter head of Bhrashtachar Virodhi Rashtriya Abhiyan, Dahod District, before learned District Judge, Dahod, an order was passed by the learned Principal Senior Civil Judge, Dahod, below Ex.1 on 8-8-2012 quashing and setting aside the order and decree dated 21-11-2011 passed below Ex.1. Hence, the present petition.
Heard learned advocate for the petitioner-plaintiff, Mr.N.K.Majmudar for Mr.P.B.Khambholja and learned advocate, Mr.Kirit J.Macwan for the respondent-defendant and for applicants of Civil Application No.10718 of 2012.
Learned advocate, Mr.Majmudar, submitted that the impugned order is contrary to the law and evidence on record. He further submitted that the order has been passed by the trial court without affording an opportunity of hearing and without following due process of law. He therefore requested to remand the matter to the court below by quashing and setting the impugned order for a decision afresh after giving opportunity of hearing to the respective parties.
Learned advocate, Mre.Kirit J.Macwan, submitted that a serious fraud has been committed by the original defendant with other persons by forging and fabricating bogus documents and indulging in selling off the properties of applicant No.1 of Civil Application No.10718 of 2012-Irish Presbyterian Mission Trust situated at various places including other states. The original defendant indulged in selling-off the properties of Irish Presbyterian Mission Trust at Mt.Abu and criminal complaint has been filed as well as the suit with the courts at Mt.Abu and a public notice in this regard was also issued in leading newspapers. He further submitted that as the original defendant entered into an Agreement to Sell of the properties of applicant No.1 at Dahod through forged and fabricated documents, the applicant No.2 as Manager of applicant No.1 filed criminal complaint in the Court of learned Chief Judicial Magistrate, Dahod, against the office bearers of respondent No.2 and others. He further submitted that original plaintiff and defendant filed Special Civil Suit No.55 of 2011 in the Court of learned Principal Senior Civil Judge, Dahod, in collusion with each other wherein order and decree were passed. He further submitted that on coming to know of a fraud having committed by the plaintiff and defendant in collusion with each other, the learned Principal Senior Civil Judge, Dahod, took up the matter suo motu and quashed and set aside the said order and decree. He further submitted that the applicants of Civil Application No.10718 of 2012 are therefore necessary and proper parties to be joined in the present petition for reaching the truth of the case and hence, it is prayed that applicants of Civil Application No.10718 of 2012 be joined as parties to this petition. He relied on a decision rendered in the case of Ramchandra Ganpat Shinde and another Vs. State of Maharashtra and others reported in (1993)4 Supreme Court Cases 216.
Considering the submissions made on behalf of the learned advocates for the parties and having regard to the facts and circumstances, as applicants of Civil Application No.10718 of 2012 are proper and necessary parties to be joined in the present petition, they were permitted to be joined by this Court (Coram: Anant S.Dave,J.) and, therefore, Civil Application No.10718 of 2012 requires to be allowed.
This Court has gone through the order passed by the trial court. It appears from the order passed by the trial court that compromise pursis Ex.9 dated 21-11-2011 arrived at between the plaintiff and defendant was bogus and concocted and hence, it was held by the trial court that parties played fraud upon the Court. It was also held by the trial court that the owner of suit property-Shri Bhuralal Punalal Saheb was not joined as party in the suit and although said Shri Bhuralal Punalal Saheb expired, copy of his death certificate was not placed on record of the suit as well as with compromise pursis Ex.9. The purchased document of the suit property by Irish Presbyterian Mission Trust and resolution passed giving power to the defendant for administration of the suit property were also not produced by the defendant. Hence, on going through the record, a doubt has been created in the mind of the court below that a fraud has been committed on the court and hence, both the order and decree passed by the court earlier were quashed and set aside.
Considering the submissions made on behalf of the parties and having regard to the facts and circumstances of the case, this court is of the prima facie opinion that fraud is committed on the court and, therefore, the findings arrived at by the trial court are just, legal and proper and hence, same are not required to be interfered with. Hence, the present petition deserves to be dismissed.
Thus, Civil Application No.10718 of 2012 is allowed.
Special Civil Application No.11458 of 2012 is, however, dismissed. Notice is discharged.
It is needless to say that trial court will decide the suit after giving opportunity of hearing to all the concerned parties on its own merits, in accordance with law and without being influenced by any order passed by the trial court as well as this order.
(M.D.SHAH, J.) RADHAN Page 10 of 10