KIRITBHAI PRABHUDAS SONI Vs. DILIPBHAI BHAGWANJIBHAI MANDALIYA

JUDGEMENT

(1.) The present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of seeking the following reliefs:

(2.) It is the case of the petitioner that the respondent claimed to have purchased property bearing residential house located in Kevdavadi Street No.22, Ward No.11, bearing City Survey Nos.366, 367 and 368, Rajkot. The suit property was given to the petitioner by virtue of oral agreement on 1.7.2012 for a period of 12 months at a license fee of Rs.20,000/- per month. The total amount of Rs.75,000/- was paid through cheque by the petitioner, out of which, Rs.35,000/- were adjusted towards the deposit and Rs.40,000/- were adjusted towards the license fee for a period of two months. By making out a case that the present petitioner did not pay the license fee and retained possession of the suit property, the respondent instituted suit being Special Civil Suit No. 218 of 2013 for recovery of possession, mesne profit as well also license fee from the petitioner in the Court of learned Principal Senior Civil Judge, Rajkot. Pursuant to summons having been issued, it was contended that the respondent on the contrary agreed to sell the property to the petitioner for a total consideration of Rs.35,00,000/- and in response thereto, the amount of Rs.75,000/- was paid by way of Earnest Money Deposit and the petitioner was ready and willing to pay the balance consideration as, during the passage of time, the petitioner had already paid the amount of Rs.20,00,000/- and remaining amount of Rs.5,00,000/- was to be paid for which, the petitioner is ready and willing. After framing an issue at Exh.32, the learned trial Judge tried the suit and by judgment and decree dated 18.6.2018 decreed the suit in favour of the respondent plaintiff directing the petitioner to hand over physical possession of property to the respondent and also to pay an amount of Rs.2,20,000/- towards the license fee and Rs.20,000/- way of mesne profit. It is further the case of the petitioner that feeling aggrieved and dissatisfied with the said judgment and decree, the present petitioner preferred an appeal before the District Court which was registered as Regular Civil Appeal No.69 of 2018 and along with the appeal, an injunction application at Exh.5 was preferred for staying the implementation and execution of the judgment and decree of trial court. In the said appeal, the petitioner also filed an application at Exh.10 seeking a leave for production of additional evidence on record and the said evidence was with respect to payment of consideration. The said application though was objected came to be allowed by the learned appellate court on 25.1.2019. Thereafter, the hearing of Exh.5 application was processed further and vide order dated 21.2.2019, learned lower appellate Court was pleased to allow the said injunction application by suspending the order of the trial court, however, on a condition that the petitioner should deposit an amount of Rs.2,20,000/- within a period of seven days from the date of the order. The petitioner accordingly was required to deposit the said amount on or before 28.2.2019 but, in the meantime, the petitioner met with an accident and could not arrange the fund in time and as such, filed an application at Exh.19 on 28.2.2019 to grant extension of time. The said application was granted by extending time by the appellate Court but thereafter, again at Exh.21, another application was filed for extension of time to deposit the amount. However, only two days' time was granted to the petitioner by virtue of order dated 21.2.2019. Thereafter also, with a view to give last opportunity, another application was preferred for extension of time at Exh.23 for a period of six days. However, the said application below Exh.23 came to be rejected by the lower appellate Court vide order dated 20.3.2019, which is made the subject matter of the present petition under Articles 226 and 227 of the Constitution of India.

(3.) The Court upon appreciation of the said circumstance issued notice on 8.4.2019 and thereafter, at a subsequent point of time, on 2.5.2019, relying upon the statement made by learned advocate, Mr. Jasani, on instructions, time was granted to enable the petitioner to deposit a sum of Rs.2,20,000/- and the matter was thereafter posted for further hearing today. Today, learned advocate has declared before the Court that, though it was specifically conveyed, the petitioner has not obeyed the said assurance given to the Court and has not deposited any amount precisely the amount of Rs.2,20,000/-.