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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

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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

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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.

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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.”

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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.

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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

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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