Moayyed Tayabally Boxwala and Others vs Smt. Vijaya Pawankumar

A.A. Desai, J.—Civil Judge, Senior Division, Thane by the impugned judgment and decree dismissed the Civil Suit for specific performance of a contract dated 23rd August, 1979, inter alia, on the ground that the plaintiff (original vendee) failed to perform his part under the contract viz-obtaining of the permission from the revenue authority as envisaged by Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, the Tenancy Act).

Mr. Sakhardande, the learned Counsel appearing for the original plaintiff has strenuously urged that on proper consideration of the relevant clause reproduced in the plaint, the obligation of obtaining such permission would be on the vendor and as such trial Court was not justified in denying the specific performance on this count.

With the assistance of the learned Counsel, we have perused the relevant clause, namely, Clause 10. The terms of the said clause are unequivocal, unambiguous and need no further interpretation. The clause specifically casts an obligation on the purchaser viz. the plaintiff to obtain the permission in this behalf. The vendor was called upon to render necessary co-operation. The learned Counsel could not pursue this argument any further. However, the main thrust of the argument was that by such events and the transaction of parties they created new agreement which casts obligation on the defendant to obtain such permission.

We have heard the learned Counsel at length. The counsel has frankly admitted that no pleadings in this behalf have been made in the plaint. The contention is that even in absence of pleadings, documentary or oral evidence could be adduced. We are unable to agree with the submission.

Creation of a new contract is a fact to be pleaded and which could be substantiated by the necessary document on record. In absence of pleadings as discussed, we cannot go into this question. It is then urged very vehemently that the revenue authority has refused permission on 19th December, 1981 as envisaged by Section 36 of the Tenancy Act. The proposition advanced before us by the learned Counsel that refusal of permission is per se illegal and the illegality is apparent on the face of the record. This could be decided by the Civil Court and the same could be set aside in a civil proceeding. In support of this proposition, the learned Counsel relied upon a decision of the Kerala High Court in the case of Padmanabha Pillai Govinda Pillai Vs. Padmanabha Pillai Raman Pillai and Another, . The decision has a relevance so far as creation of a new contract as envisaged in Proviso (4) to Section 92 of the Evidence Act is concerned. Since it is not pleaded anywhere in the plaint, we arc unable to look into the submission. The further submission is that the refusal of permission is non-est and, therefore, in view of decision in the case of Gundaji Satwaji Shinde Vs. Ramchandra Bhikaji Joshi, this could be examined and set aside. With the assistance of the learned Counsel, we have read the contents of the impugned order of refusal. The order precisely says that the permission is refused since the vendee is not an agriculturist. We can see that the reasoning is not sufficient, but the order as passed by the competent authority in exercise of its jurisdiction. Apart from the comments about the illegality or errors in the judgment. Since it is passed by the authority vested with the jurisdiction by law, the order could not be nan-est. Even otherwise in view of I he bar u/s 85 of the Tenancy Act, Civil Court is precluded from looking into the mailer. As illegality, validity or otherwise of the said document cannot be gone into in the present proceeding. Hence the submission in this behalf is without merits.

Lastly, it is contended that the clause for seeking permission u/s 63 of the Tenancy Act was superfluous, since the plaintiff was already an agriculturist and as such no permission was necessary. Undisputedly, the parties with their status as agriculturists and non-agriculturists entered into an agreement. This position was not disputed any lime before filing of the proceedings. Moreover, on our query, it is reported that the plaintiff was an agriculturist since 1971. If it was so, he is deemed to be an agriculturist even on the date of execution of the agreement in 1979. We have not been explained why this position was not confronted and the agreement was modified to this extent by incorporating a proper plea. The trial Court has rightly held that there is a failure on the part of the plaintiff to perform his part under the contract and for which reason, the learned Judge was justified in refusing to grant any relief.

The appeal is without any merit. Hence dismissed. No order as to costs. Certified copy expedited.