Smt. Vanmala Sureshkumar Kasliwal & Ors. v. Shri Mahaveer Bansilal Kasliwal & Ors.

The appellants are the original defendant Nos.1 to 4 in Special Civil Suit No.75 of 2010. They are aggrieved and dissatisfied with the order passed by the Trial Court dated 30th October, 2012 wherein the Jt. Civil Judge, Senior Division, Malegaon has allowed the application Exh.100 and directed that the appellants defence be struck off.

2. The appellants and the original applicants – plaintiffs in the suit do not dispute that a property which has been subject matter of Sale Deed dated 14th March, 2012 is a property in litigation. Special Civil Suit No.75 of 2010 on the file of Civil Judge, Senior Division, Malegaon is a suit filed by the Respondent Nos.1 to 4 to this appeal. This is a suit for partition. The other respondents to this appeal are the non- 1 of 6 2 911-ao1276-12.sxw contesting parties and they are the original defendants. This Appeal from Order can proceed in their absence.

3. A suit is filed for declaration of the share of the original plaintiffs in properties claimed as joint family properties through common ancestor. One of the property in dispute is the land admeasuring 4 Hector 52 Ares in Survey 376/1 situate at Kopargaon Taluka at Mouze Kokamthane, District Ahmednagar. This is an agricultural land. It is part of the civil suit which is pending.

4. The appellants also do not dispute that after the suit was filed an application was made for interim injunction therein and in the said application an injunction was granted restraining the present appellants from creating any third party rights in respect of the said property till the hearing and final disposal of the suit. This order was passed on 6 th March, 2012. Being aggrieved and dissatisfied with this order, it is undisputed that a Appeal from Order No.762 of 2012 was filed in this Court. That appeal from order was disposed of on 9th October, 2012.

6. The hearing of the suit has been expedited by this Court. On 30th June, 2012, the original plaintiffs filed application Exhibit 100 and urged that in violation and breach of temporary injunction the present appellants have sold the said property and Sale Deed has been 2 of 6 3 911-ao1276-12.sxw executed which is purportedly registered on 14th March, 2012. This is an act is in complete violation of the order passed by the Civil Court and therefore, the defence of the appellants be struck off.

7. To this application a reply has been filed by the present appellants in which the only plea taken was that the order dated 6th March, 2012 has not been communicated to them by their advocate and, therefore they concluded the transaction. They did not deliberately and willfully violate the order passed by the trial Court.

8. This reply was placed before the trial Court and after the counsel appearing for the parties were heard, the learned trial Court made the above order.

9. This appeal challenges the said order and the only contention which was raised before me is that the trial Court has not recorded any finding in terms of Order XXXIX Rule 11 of the Code of Civil Procedure, 1908 which is a Maharashtra Amendment to the said code. It is urged that the provisions mandate the trial Court to record a specific finding that the default in respect of or contravention of the order is willful and deliberate. Therefore, in the absence of such a finding the order under challenge is vitiated and should be set aside.

10. On the other hand, it is contended that this order is in accordance 3 of 6 4 911-ao1276-12.sxw with the provisions and particularly when the contravention of the order has been deliberate in as much as the appellants are aware that they have filed an Appeal from Order against the original injunction order. In that they have stated clearly that they applied for certified copy of the order and were furnished the same in pursuance of their application dated 7th March, 2012. In these circumstances, the Court below was justified in holding that the contravention is admitted and that there is no substance in the defence raised on behalf of the appellants. The contention is ex-facie false. For all these reasons, it is submitted that the appeal be dismissed. With the assistance of the learned counsel appearing for the parties I have perused the order under challenge, the application on which it was made, the reply to the said application and equally the Sale Deed. The facts which have been narrated by me are not disputed that the injunction order was passed on 6th March, 2012, that an application for certified copy of the same was made on 7th March, 2012 with the knowledge that the said injunction has been passed, that the Sale Deed has been executed on 14th March,

2012. All such acts being undisputed and in the teeth of the order passed by the trial Court then, trial Court did not commit any error in holding that the contravention of the order is a deliberate or willful act. 4 of 6 5 911-ao1276-12.sxw Apart from the fact that something cannot be read into the provision which is plainly not there but assuming that such an element has to be present and then alone order of this nature can be passed, in the instance case the false plea taken was enough to conclude that the appellants do not deserve any chance to defend the proceedings. There is no scope for showing any sympathy or mercy to them as the finding is correctly recorded in this case. The order under challenge therefore, is in accord with Order XXXIX Rule 11 of the CPC and requires no interference in my appellate jurisdiction. It cannot be said to be erroneous or vitiated in any manner requiring interference by the Appellate Court. The appeal is devoid of any merits and is dismissed.

11. However, a request is made by Mr. Thorat, learned counsel appearing for the appellants that the appellants have instructed him to state that within a period of four weeks from today, the appellants shall cancel the transaction covered by the Sale Deed by execution of Cancellation Deed. The whole contract will be thus, cancelled. Such a Cancellation Deed will be placed on record of the trial Court duly registered and within a period of four weeks from today.

12. If as Mr. Thorat states on instructions the appellants execute the Cancellation Deed, duly register it and place it on the file of the Civil 5 of 6 6 911-ao1276-12.sxw Court, then, the Civil Judge, Senior Division, Malegaon or the Judge to whom the matter is assigned shall satisfy himself that the said Deed is cancelled and rescinds completely the earlier transaction and thereafter recall his order dated 30th October, 2012 and allow the present appellants to defend Special Civil Suit No.75 of 2010. If within four weeks from today such steps are not taken and the Cancellation Deed is not executed or if executed, it is not in accordance with the requirement stipulated in this order, then, the impugned order stands and thereafter the said suit should proceed in accordance with law. Needless to clarify that even if the defence of the appellants is struck off, they are not prevented from cross-examining the witness of the plaintiffs with regard to the plaintiffs case but they shall not in any manner be permitted to prove their case as stated by them in the written statement. With these clarifications and directions, the Appeal from Order is disposed off.

13. In the event the Cancellation Deed is executed and placed on record in terms of this order, then, while recalling and setting aside the earlier order, the trial Court should impose reasonable costs on the appellants which shall be payable to the Districts Legal Services Authority. (S.C.DHARMADHIKARI, J.) 6 of 6