Avinash G. Gharote, J.

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsels for the rival parties.

3. The revision challenges the judgment dated 02.11.2022 passed by the learned Ad-hoc District Judge-1, Nagpur, in Misc. Civil Appeal No. 160/2021, whereby the judgment dated 14.08.2018 passed by the learned 8th Joint Civil Judge Senior Division, Nagpur, in M.J.C. No. 12/2012, thereby rejecting the application filed by the non-applicant, who was the original plaintiff in Special Civil Suit No.132/2004, which came to be dismissed on 22.11.2011 under Order XXXIX Rule 11 of the Code of Civil Procedure (for short "C.P.C."), has been set aside and Special Civil Suit No.132/2004, has been restored to file.

4. Special Civil Suit No.132/2004 was a suit for specific performance of the agreement dated 29.05.2003 (page 126) filed by the non-applicant against the applicants. In the said suit, the applicants filed an application for impounding the agreement dated 29.05.2003 on the ground that since it showed a consideration of Rs.90,00,000/- and also indicated delivery of possession, but was written on a stamp paper of Rs. 100/-, the same was required to be impounded under Section 33 of the Maharashtra Stamp Act and was required to be sent to the Collector of Stamps for assessing the stamp duty and penalty payable thereupon. The said application came to be allowed by the order dated 05.04.2006 directing impounding of the document. Against this order, Writ Petition No.3328/2006 came to be filed, which later on came to be disposed of as infructuous on account of a statement being made by the learned counsel for the non-applicant, that the evidence in the matter had commenced. By this, the order of impounding therefore attained finality. Thereafter the Collector of Stamps by his order dated 23.02.2007 calculated the stamp duty and penalty to be Rs.46,51,010/-, being aggrieved by which the non-applicant filed Writ Petition No. 4191/2007, in which by an order dated 01.10.2008, the order of the Collector of Stamps dated 23.02.2007 was set aside and the matter was remanded back to the Collector of Stamps for recalculating the stamp duty and penalty.

5. On remand, the Collector of Stamps by his order dated 30.11.2010 calculated the stamp and penalty at Rs. 29,60,075/- which again came to be challenged by way of Writ Petition No. 3743/2010, which came to be partly allowed by the order dated 20.10.2010 directing the Collector of Stamps to value the agreement at Rs.2,15,50,000/-. Special Leave Petition No.25014/2011 there against came to be dismissed on 19.09.2011. The Collector of Stamps by his order dated 30.11.2010, consequent to the order dated 20.10.2010 in Writ Petition No.3743/2010 calculated the stamp duty and penalty at Rs. 28,67,987/-.

6. In the meantime, it is necessary to note, that the non-applicant had on 27.11.2006 filed an undertaking Ex.44, before the learned Trial Court stating that in case the evidence is tried to be led upon the agreement of sale, he undertakes to pay the stamp duty as per law (page 32). Another undertaking was also filed on behalf of the non-applicant by his counsel on 22.03.2007 at Exh. 48 to the effect that the plaintiff undertook to deposit the requisite stamp duty for impounding the document within a period of four days (page 31).

7. The applicants on 04.01.2010 and 21.09.2011 had already filed two applications under Order XXXIX Rule 11 (1) of C.P.C. for dismissal of the suit for non-compliance of the undertaking and also the order below Exh. 27, the application for impounding of the agreement. The learned Trial Court by the order dated 22.11.2011 (page 40), holding that the non- applicant inspite of the order of impounding having become final had failed to show any bonafides to comply with the same, and therefore, in view of the provisions of Order XXXIX Rule 11 (1) of C.P.C., had committed default/contravened, the orders passed by the Court dated 05.04.2006 below Exh. 27 and also undertaking below Exhs. 44 and 48 in the matter of making payment of deficit stamp duty and penalty thereupon on the agreement of sale dated 29.05.2003 dismissed the suit for the said reason (page 55).

8. The non-applicant thereafter filed an application for setting aside the dismissal of the suit vide M.J.C. No. 12/2012 in which by judgment dated 14.08.2018, the learned Court finding that the requirements of Order XXXIX Rule 11 (2) of C.P.C., of sufficient cause having not been established rejected the application (page 35). An appeal under Order XLIII Rule 1 of C.P.C., came to be preferred there against by the non- applicant which was registered as Misc. Civil Appeal No.160/2021. The learned Ad-hoc District Judge-1, Nagpur, by the impugned judgment has allowed the same resulting in the present revision.

9. Mr. Purohit, learned counsel for the applicants submits, that the entire conduct of the non-applicant indicates procrastination and avoidance to pay the correct stamp duty and the penalty thereupon inspite of the fact that consequent to the order dated 30.11.2010 passed by the Collector of Stamps and dismissal of the Special Leave Petition by the non-applicant on 19.09.2011, the quantum of the stamp duty and the penalty payable thereupon had become final, and therefore, it was the bounden duty of the non-applicant to have immediately paid the same, non payment of which resulted in passing of the order of dismissal of the suit on 22.11.2011. He further submits, that even thereafter, there have been no attempts on part of the non- applicant to show his bonafides and it is for the first time when the query was made by this Court, that an application has been filed for deposit of the stamp duty and penalty as per the order dated 30.11.2010 in this Court.

10. Inviting my attention to para 15 of the impugned judgment, it is submitted that this conduct of the non-applicant has been duly noted by the learned Ad-hoc District Judge-1, Nagpur, inspite of which the non-applicant has been permitted to pay the stamp duty and the suit restored, which according to him is not permissible in law. It is also contended, that the undertakings at Exh. 48 dated 22.03.2007 as well as one at Exh. 44 dated 27.11.2006, bound the non-applicant, to pay the stamp duty and the penalty, inspite of which nothing was done, other than filing writ petitions questioning the quantum which also according to him shows the conduct of the non-applicant in procrastination and so also non compliance of the orders, as a result of which, the requirement of Order XXXIX Rule 11 (1) of C.P.C., clearly stood satisfied. It is also contended, that the requirements of Order XXXIX Rule 11 (2) of C.P.C., have not been complied with, and therefore, the impugned judgment cannot be sustained.

11. Mr. Sitani, learned counsel for the non-applicant submits, that there was no intention on part of the non- applicant not to pay the stamp duty and the penalty and the entire fight was to pay the correct stamp duty and penalty, which according to him is evident from the fact, that on account of orders passed in Writ Petition Nos. 4191/2007 and 3743/2010, the stamp duty and penalty which was earlier calculated at Rs.46,51,010/- stood reduced to Rs. 28,67,987/-. It is also contended, that the order below Exh. 27 dated 05.04.2006 was an order of impounding for which the document i.e. agreement of sale dated 29.05.2003 was sent to the Collector of Stamps, and therefore, there was no obligation created upon the non-applicant of making any compliance on account of which there was no violation of the said order so as to attract provisions of Order XXXIX Rule 11 (1) of C.P.C. It is also contended, that the provisions of Order XXXIX Rule 11 (1) of C.P.C., were directory as held by the learned Division Bench of this Court in Ramavatar Surajmal Modi Vs. Mulchand Surajmal Modi, 2004 (2) Mh.L.J. 1, and therefore, the claim of the non-applicant for specific performance could not be thrown out on the ground of non-compliance with the order dated 05.04.2006.

12. Insofar as the undertaking is concerned, it is contended, that the undertaking at Exh. 44 dated 27.11.2006, was a conditional undertaking agreeing to pay the stamp duty in case the evidence was led upon the document i.e the agreement of sale dated 29.05.2003 and since only an affidavit in lieu of evidence was filed on 28.11.2006 without the non- applicant/plaintiff entering into the witness box, it could not have been said that the document was attempted to be proved by leading evidence on account of which the plea that the undertaking at Exh. 44 dated 27.11.2006 was violated cannot stand to reason. Insofar as the undertaking at Exh. 48 dated 22.03.2007 is concerned, it is submitted that the same was filed by the counsel without any knowledge of the non-applicant, and therefore, the non-applicant could not be penalized for the same for which reliance is placed on Himalayan Cooperative Group Housing Society vs. Balwan Singh, (2015) 7 SCC 373 [LQ/SC/2015/666] .

13. Mr. Sitani, learned counsel for the non-applicant, upon instructions of the non-applicant, who is present in the Court in order to show his bonafide states, that the non- applicant is ready to make amends by payment of a cost of Rs.2,00,000/- to the other side and so also to deposit the stamp duty and penalty as calculated by the order dated 30.11.2010 of Rs.28,67,987/- and so also undertakes to deposit the balance penalty payable till date within a week from its calculation. He therefore submits, that the rights of the parties need to be determined on merits and further undertakes upon instructions to ensure that the suit is decided in a time bound manner. He therefore submits, that the revision application needs to be dismissed.

14. The order dated 05.04.2006 (page 25) by which the agreement of sale dated 29.05.2003, was impounded sends the true/authentic copy of the same to the Collector, for the purpose of taking action of assessment of the proper stamp duty leviable and penalty payable and endorsement of a certificate therein regarding the same having paid. The order therefore does not impose any obligation or directions upon the non-applicant. In case inspite of the Collector of Stamps, having calculated the stamp duty and penalty, the non-applicant failed to pay the same, the Collector of Stamps, could have sent the same back with such an endorsement to the Court, in which case the Agreement would not have been admissible in evidence. Thus, there was no positive direction given or obligation created on the non-applicant by the order dated 5.4.2006, so as to invoke the provisions of Order XXXIX Rule 11 (1) of C.P.C. so as to dismiss the suit itself. The dismissal of the suit by the order dated 22.11.2011, therefore clearly does not appear to be warranted in the first instance itself.

15. The provisions of Order XXXIX Rule 11 (1) of C.P.C., in light of what has been held by the learned Division Bench of this Court in Ramavatar Surajmal Modi (supra) are directory in nature, in light of which, even if there is a breach of an undertaking or an order, it would depend upon the discretion of the Court, for reasons to be recorded in writing, to the satisfaction of the Court to either dismiss the suit or strike off the defence depending upon who commits the breach. At the same time Order XXXIX Rule 11 (2) of C.P.C., again confers a discretion upon the Court, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, restore the suit or hear the party in defence, if the party in breach makes amend for the default or contravention or breach to the satisfaction of the Court. This would clearly indicate the intention of the legislature that on account of passing of order under Order XXXIX Rule 11 (1) of C.P.C., the lis was not to be terminated or defence is not to be stricken off permanently, unless the opportunity as contemplated by Order XXXIX Rule 11 (2) of C.P.C., was permitted. If that be so, it is apparent, that the legislature intended that the suit was to be decided on its own merits, as amends were permissible in respect of breach of an order. If that be the purpose of the provision then though there appears to be a default on part of the non-applicant/plaintiff, he deserves an opportunity, inasmuch as though the Collector of Stamps determined the stamp duty and penalty payable thereupon at Rs. 28,67,987/- by his order dated 30.11.2010, the same attained finality only on 19.09.2011 when the Special Leave Petition filed by the non-applicant was dismissed. As against this, the order below Exhs. 77 and 107, the applications under Order XXXIX Rule 11 (1) of C.P.C., came to be passed on 22.11.2011, a mere three days after the order of the Collector dated 30.11.2010, attained finality on account of dismissal of Special Leave Petition on 19.09.2011. In such a circumstance, it was permissible for the Court to have granted a reasonable opportunity to the non-applicant/plaintiff to deposit the stamp duty and penalty as calculated by the Collector of Stamps by his order dated 30.11.2010 within a reasonable period of time and in case that was not done then pass an order under Order XXXIX Rule 11 (1) of C.P.C., for dismissal of the suit. This is moreso for the reasons that Order XXXIX Rule 11 (2) of C.P.C., contemplates an opportunity of making amends, to the party committing breach.

16. Insofar as the undertakings are concerned, the undertaking at Exh. 44 dated 27.11.2006 appears to be conditional and would come into operation when the document was sought to be proved. It is an admitted position on record, that though an affidavit in lieu of evidence came to be filed, the non-applicant did not enter into the witness box at all, in view of which, this situation did not arise at all. The undertaking at Exh. 48 dated 22.03.2007 is admittedly an undertaking given by the counsel for the non-applicant and the contention that it was without instructions though made belatedly here, will have to be considered in light of the duty of the counsel, to give such undertaking only upon instructions or under the signature of the non-applicant/party so as to bind his client, as such an undertaking, has some consequences for the non-applicant/party. In view of what has been said in Himalayan Cooperative Group Housing Society (supra), it is therefore necessary for a counsel to seek appropriate instructions in this regard in writing from his client and then give an undertaking to the Court or give the undertaking under the signature of the client so that such situations can be avoided.

17. The undertaking at Exh.48, which is only under the signature of the counsel and not of the non-applicant, will therefore, have to be considered in the above light and will have to be held not to bind the non-applicant. Even presuming otherwise, that it binds the non-applicant, it would be necessary to be borne in mind that the dispute regarding the correct stamp duty and penalty payable on the agreement, attained finality only on 19.09.2011 on account of dismissal of the Special Leave Petition and thus the obligation to pay the same within four days as per the time given in the undertaking can be said to have commenced on 20.09.2011 and ended on 23.09.2011, however, the suit came to be dismissed on 22.11.2011 itself, a day prior to the expiry of the period in the undertaking, considering which position, the compliance of the undertaking at Exh.48, was made an impossibility by an act of the Court, which cannot prejudice the litigant/party to the suit.

18. In light of the discussions above and accepting the statements made by Mr. Sitani, learned counsel for the non- applicant, as indicated above as statements to the Court and subject to filing of an undertaking in this Court by Monday i.e. on 10.07.2023 to deposit the amount of stamp duty and penalty of Rs.28,67,987/- with the Collector of Stamps, as calculated by the order dated 30.11.2010 by way of Demand Draft on Tuesday i.e. on 11.07.2023 itself and so also an undertaking to pay the penalty from 01.12.2010 till today, within a period of one week from the date the calculation thereof is made by the Collector of Stamps and the payment of cost of Rs.2,00,000/- to the non- applicant, to be deposited in this Court by Monday i.e. on 10.07.2023, the civil revision application is dismissed.

19. However, considering the suit is of the year 2004, the learned Trial Court, is directed to decide the Special Civil Suit No.132/2004 as expeditiously as possible and in any case within a period of one year from the date on which the order of this Court is brought to its notice, which shall be so done by both the parties hereto, by 11.07.2023.

20. The Collector of Stamps is directed to calculate the penalty within a period of one week from today. The non-applicant, shall place before the Collector of Stamps, a copy of this order on 10.07.2023, so as to enable him to make calculations of the penalty payable from 01.12.2010 till today, within the time stipulated, herein.

21. Rule stands discharged.

22. Pending application/s, if any, shall stand disposed of accordingly.