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A willful violation of this Agreement occurs due to an act committed by the breaching Party with factual knowledge that such action would, or might reasonably be anticipated to, result in a breach of this Agreement. This Judgment was pronounced by SANDEEP K. SHINDE J on 31.01.2022 in SHIVAJI FAKIRA BHAMBARE V. DASHRATH BABURAO NAIK.

Facts of this case – The respondent/plaintiff filed Special Civil Suit No.41 of 2004 seeking an order of particular execution of the contract regarding land measuring 1H 83R (hereafter referred to as ‘Suit Land’). Despite the Court’s Undertaking, the appellant first modified his wife’s name, Mrs. Yamunabai Shivaji Bhambare, as a co-owner in the revenue records of the suit property in January of 2015 via Mutation Entry No.3488. Following that, without the consent of the Court, the appellant allowed Dhanlaxmi Urban Co-operative Credit Society to impose a charge on the suit property against the loan of Rs.50,000/- that he had taken out. In light of the breach of the Undertaking, the respondent-plaintiff applied to Order 39 Rule 11(1) of the CPC, seeking dismissal of Regular Civil Appeal No.78 of 2012.

By Order, the learned District Judge, Niphad, granted the application, as shown in Exhibit-48, and dismissed the Regular Civil Appeal No.78 of 2012. The learned District Judge denied the Miscellaneous Civil Application in the impugned ruling of December 10, 2021, and he refused to reinstate the Regular Civil Appeal. As a result, the aggrieved plaintiff has withdrawn his Appeal.

Mr. Godoble, learned Counsel for the appellant, argued that Rule 11 of Order 39 of the CPC, sub-rule (2), authorizes the Court to reinstate the suit or proceedings if the person responsible for the infraction or breach of the Undertaking makes amends to the satisfaction of the Court. As a result, Mr. Godbole argued that the mistake had been corrected and that appellant was now the sole owner of the suit property. As a result, the argument is that the suit property’s character has been restored to what it was before to modify the records of right, and that suit property has therefore been maintained.

Mr. Sabrad, learned Counsel for the respondent, justified the challenged Order and would suggest that, notwithstanding the Undertaking to this Court, the appellant intentionally created rights in his wife’s favor, and that too in violation of the Order. Following that, Mr. Sabrad claimed that, after entering his wife’s name as a co-owner, the charge of Dhanlaxmi Credit Co-operative Society was allowed to be formed on the suit property without the consent of the Court. A new breach had occurred. As a result, Mr. Sabrad argued that the appellant’s actions and omissions were deliberate and in direct violation of the Court’s Order and Undertaking.

The Learned Judge of this Court has carefully reviewed the submissions of the parties’ skilled Counsel and the material and orders issued in numerous actions between them at various stages. The fact that the possession decision in the suit for the specific performance of the contract was issued in favor of respondent-plaintiff cannot be overlooked. Despite this Undertaking, the appellant had his wife’s name included as a co-owner in the rights register. The appellant’s application for recording mutation entry in the office of the Tahsildar does not reveal his Undertaking to this Court, and the affidavit filed in support of the application alludes to ongoing First Appeal proceedings.

Going a step further, aside from the breach of the Undertaking, it should be noted that the appellant’s son and daughter also sought their impleadment in Appeal as necessary parties, claiming an undivided share in the suit property, even though the appellant acquired it himself, according to the evidence. As a result, if the facts of the case show that a breach of Undertaking was committed, but not in compelling circumstances or the circumstances beyond the reach of the Court, and the Party responsible for the violation amends the breach, he cannot seek restoration of the suit/proceedings dismissed for breach.

The appellant justified his actions by disregarding and asserting that the contents of the Undertaking were not accurate and that his Advocate did not give the Undertaking in the proper Order, as evidenced by the reply. If such is the case, the appellant can no longer claim that an entry in the register of rights does not bestow the title on the person whose name is listed and that the appellant has corrected the error.

When this Court refused to delay the execution of the Decree and refused to reopen the Civil Appeal, the appellant amended his approach to curing the breach of Undertaking as the last option. As a result, the appellant’s acts/omissions and behavior were relevant facts’ under Section 8 of the Evidence Act, since they influenced the ‘fact-in-issue,’ i.e., whether the appellant has established sufficient grounds for reviving the Appeal, which was rejected for breaching the Undertaking. The circumstances in the record unmistakably lead to the appellant’s purposeful “breach of Undertaking.” As a result, the violation must be considered “willful” and not done under coercion. The facts of the case do not demonstrate “sufficient reason” to reinstate the Appeal. As a result, no interference is required with the contested Order.

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Reviewed by Rangasree