Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.199 of 1996 Against the judgment and decree dated 30.4.1996 passed by the learned Additional District Judge-7, Munger in Title Appeal No. 9 of 1992 confirming the judgment and decree dated 16.9.1991 passed by the learned Sub Judge-1st Court, Munger in Title Suit No. 2 of 1985. =========================================================== Smt. Basundhara Devi .... .... Defendant 2nd party/Appellant/Appellant Most. Dhawani Devi & Ors Versus .... .... Plaintiffs/Respondents/Respondents =========================================================== Appearance : For the Appellant : Mr. Bhupendra Narayan Singh, Advocate. Mr. Vijay Anand Singh, Advocate. For the Respondents : Mr. Rajendra Narayan, Sr. Advocate. Mr. Kamal Kishore Jha, Advocate. =========================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL JUDGMENT Date: 16-07-2013 1. The defendant 2nd party appellant appellant has filed this second appeal against the judgment and decree 30.4.1996 passed by the learned Additional District Judge-7th Munger in Title Appeal No. 9 of 1992 whereby the lower appellate court dismissed the appeal and confirmed the judgment and decree dated 16.9.1991 passed by the learned Sub Judge 1st Court, Munger in Title Suit No. 2 of 1985. 2.
Legal Reasoning
The plaintiffs respondents filed the aforesaid suit for specific performance of contract dated 31.12.1980 said to have been executed by Most. Gauri Devi and Most. Sharda Devi and Dilip Kumar, minor son of said Sharda Devi. The plaintiffs further prayed Patna High Court SA No.199 of 1996 dt.16-07-2013 2 that the subsequent sale deeds dated 16.6.1982 and 14.7.1982 executed by defendant 1st party in favour of defendant 2nd party be declared illegal, fraudulent, collusive and not binding on the plaintiffs and without consideration. 3. The plaintiffs prayed the aforesaid relief alleging that since the defendant 1st party were in debt, they entered into an agreement on 31.12.1980 with the plaintiffs to sell the suit property for a consideration of Rs.5000/- and earnest money was paid as Rs.2000/- . A Baibayana deed i.e. agreement was executed on 31.12.1980. It was agreed upon between the parties that within one year the first party will execute the registered sale deed in favour of the plaintiffs after receiving the balanace consideration amount. The plaintiffs requested many times to execute the sale deed but the defendant avoided. The plaintiffs were always ready and are still ready to perform their part of the contract. Recently the plaintiffs came to know that the defendant 1st party has already sold the property in favour of the defendant 2nd set. 4. The defendant 2nd party appellant only contested the suit by filing the written statement. The defendant 1st party only filed the written statement but did not contest the suit. The main defence of the defendants 2nd party appellant is that the defendant 1st party executed an agreement to sell on 19.9.1980 in favour of the Patna High Court SA No.199 of 1996 dt.16-07-2013 3 defendants 2nd party and pursuant to that agreement the defendant 1st party executed two registered sale deeds dated 14.6.1982 and 14.7.1982 in favour of the defendant 2nd party after receiving the consideration. The defendant appellant denied all other allegations made by the plaintiffs in the suit regarding agreement in favour of the plaintiffs or receiving the advance money or the readiness and willingness. 5. The trial court on consideration of the entire evidences adduced by the parties decreed the plaintiffs’ suit recording a finding that the plaintiffs was ready and willing to perform his part of the contract. The defendant 1st set never contested the suit therefore, they conceded to the case pleaded of the plaintiffs. The defendant appellant filed title appeal before the lower appellate court. The lower appellate court by the impugned judgment and decree recorded the finding that the trial court’s finding on the plaintiff’s readiness and willingness to perform his part of contract is based on full consideration and well reason analysis of the evidences on record and it does not require interference. 6. On 10.2.2004 at the time of admission of the second appeal the following substantial question of law was formulated : “(i) When the plaintiff/respondent had not acted upon the agreement dated 31.12.1980 within the period stipulated therein or within a reasonable period thereafter, whether Patna High Court SA No.199 of 1996 dt.16-07-2013 4 the lower courts should have held that the appellant had lost right for enforcing the contract.” 7.
Legal Reasoning
At the very outset the learned counsel Mr. Bhupendra Singh submitted that in addition to the substantial question of law formulated on 10.2.2004 another substantial question of law is involved in this case requires to be formulated for decision in this second appeal. 8. According to the learned counsel the judgment of the lower appellate court is perverse and the lower appellate court without applying the mandatory provision of Order 41 Rule 31 of the Code of Civil Procedure confirmed the finding of the trial court merely saying that the lower court has discussed the controversy and the evidences the appellate court finds no reason to interfere the same. The learned counsel submitted that the lower appellate court being final court of fact as well as court of law was required to independently discuss the evidences adduced by the parties and the controversies raised by the parties but without framing any point with regard to any issue only noted the submissions of the parties and in one paragraph recorded the finding that the judgment of the trial court is not required to be interfered with and dismissed the appeal. In support of his contention the learned counsel relied upon a decision of the Hon’ble Supreme Court reported in 2011 (2) BLJ Patna High Court SA No.199 of 1996 dt.16-07-2013 5 147 SC H. Siddiqui (Dead) by Lrs. Vs. A Ramalingam. 9. Perused the judgment of the lower appellate court. From perusal of the judgment prima facie it appears that the substantial question of law raised by the appellant appears to be involved in this second appeal therefore, I am satisfied that another substantial question of law is to be formulated. In such circumstances, in exercise of power conferred according to Section 100 Sub Section 5 of the Code of Civil Procedure, I hereby formulate the following substantial question of law : “Whether the judgment of the lower appellate court is perverse and vitiated on the account of the fact that the lower appellate court without complying the mandatory provisions as contained in Order 41 Rule 11 C.P.C. confirmed the judgment of the trial court without applying his independent judicial mind ?” 10. This substantial question of law is formulated in presence of the other side. I have heard both the parties at length. 11. So far the substantial question of law formulated at the time of admission of this second appeal is concerned, it may be mentioned here that the question relates to the question as to whether the time is the essence of the contract or not. So far this substantial question of law is concerned, the learned counsel for the appellant submitted that in the agreement there is a clear stipulation to the Patna High Court SA No.199 of 1996 dt.16-07-2013 6 effect that plaintiffs have to pay the balance consideration amount of Rs.3000/- within one year but within one year the plaintiffs failed to pay the balance consideration amount, therefore, the plaintiffs have no right to pray for decree for specific performance of contract. According to the learned counsel the time is the essence of the contract which is stipulated in the contract itself. 12. On the contrary, the learned senior counsel Mr. Rajendra Narayan appearing on behalf of the respondents submitted that in the contract for sale of immovable property time is not the essence of the contract. 13. In the case of Govind Prasad Chaturvedi vs. Hari Dutt Shastri and another AIR 1977 SC 1005 the Hon’ble Supreme Court has held that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sell of immovable property it will not normally be presumed that the time is the essence of the contract. This is the settled law which is being followed subsequently by various decisions of the Apex Court as well as by various High Courts. Therefore, so far the substantial question of law formulated at the time of admission is concerned, it is answered against the appellant and in favour of the respondents and it is held that the time is not the essence of the contract in the Patna High Court SA No.199 of 1996 dt.16-07-2013 7 present case. 14. So far the substantial question of law formulated today at the time of hearing of the second appeal is concerned, the Hon’ble Supreme Court in the case of H. Siddiqui (Dead) by Lrs. vs. A. Ramalingam (Supra) has held at paragraph 18 as follows : “18. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court’s judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its Patna High Court SA No.199 of 1996 dt.16-07-2013 8 decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Thakur Sukhpal Singh vs. Thakur Kalyan Choudhary, AIR 1963 SC 146; Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam & Ors. Vs. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma vs. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. Vs. Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380)” 15. From perusal of the impugned judgment of the lower appellate court it appears that the lower appellate court has formulated the point at paragraph 10 as follows : “Whether the finding of the trial court on issue Nos. 8 and 9 are legal proper and justified or not ? So far this point formulated by the lower appellate court is concerned, it appears that the lower appellate court proceeded to decide the correctness of the judgment of the trial court as if he is hearing in revisional jurisdiction. It is settled principles of law that Patna High Court SA No.199 of 1996 dt.16-07-2013 9 the first appeal is a valuable right of a party. The first appellate court being the final court of fact and law as has been held by the Hon’ble Supreme Court in the case of Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs. (2001) 3 SCC 179 to the effect that now the first appellate court is also a final court of law in the sense that decision on a question of law even if erroneous may not be vulnerable in the High Court in second appeal because the jurisdiction of the High Court is now ceased to be available to correct the errors of the law or the erroneous finding of the first appellate court even on question of law unless such question of law being a substantial one. In my opinion, therefore, in view of the decision of the Supreme Court now a more onerous duty has been cast upon the first appellate court. In the case of H. Siddiqui (Dead) by Lrs. Vs. A Ramalingam (Supra) it has been held that the provision under Order 41 Rule 31 is mandatory. As stated above from perusal of the judgment of the lower appellate court it appears that the lower appellate court from paragraph 4 to paragraph 6 mentioned about the case of the parties and the issues framed by the trial court and finding thereof. Paragraph 7 speaks about hearing of both the parties. Paragraph 8 is the argument of the defendant appellant. Paragraph 9 and 10 is the argument of the plaintiff respondent. At paragraph 11 the finding is that the finding of the trial court is based Patna High Court SA No.199 of 1996 dt.16-07-2013 10 on full consideration and well reasoned analysis of the evidence on record and it does not require interference. Therefore, in my opinion, the lower appellate court has not at all complied with the mandatory provision as contained under Order 41 Rule 31 of the Code of Civil Procedure and this question has already been decided by the Hon’ble Supreme Court in the aforesaid decision quoted hereinabove. The lower appellate court has not at all has discussed the evidence of any of the parties oral and documentary and, therefore, the lower appellate court also not given its independent reasonings nor arrived into any independent finding on the controversies between the parties. 16. The learned counsel for the respondents submitted that while concurring the judgment of the trial court the lower appellate court is not required to consider each and every evidence is concerned, it may be mentioned here that this submission of the learned counsel is directly against the teeth of the judgment of the Hon’ble Supreme Court referred to above. 17.
Decision
In view of the above discussion, the substantial question of law formulated today is answered in favour of the appellant and therefore, the judgment of the lower appellate court is not inconformity of the provision and the law laid down by the Hon’ble Supreme Court and as such is vitiated. Patna High Court SA No.199 of 1996 dt.16-07-2013 11 18. In the result, this second appeal is allowed the impugned judgment and decree of the lower appellate court is set aside and the appeal is remanded back to the lower appellate court for passing a fresh judgment and decree according to law after hearing both the parties, on the basis of the materials already on record. Both the parties are present before this Court, therefore, no further notice be issued to them. The parties are directed to appear before the court below with certified copy of this judgment after one month and the lower appellate court shall fix the date of hearing in presence of the parties and then proceed to decide the matter. The lower court record be sent to the lower appellate court immediately. Patna High Court, Patna Date : 16.07.2013 S.S. (Mungeshwar Sahoo, J.)