Smt.Reena Devi v. Most. Mini Sinha

petitioner for review of order dated 13.05.2008 passed in First Appeal No.259 of 2007 by which the following order was passed on the interlocutory application of the opposite party-appellant: “Heard learned counsel for the appellant and learned counsel for the respondent on I.A.No.1524/2008 in respect of stay of Execution case No.11/2007 pending before Subordinate Judge-II, Patna city, Patna. Having heard learned counsel for both the sides, it is ordered that status-quo shall be maintained and no D.P. shall be given effect to. I.A.No.1524/2008 thus, stands disposed of.”

2. Learned counsel for the petitioner relies upon a decision of this court in case of Abdul Ghani Vs. Md. Hadi Hussain, reported in 1990(2) PLJR 113, in which, after relying upon the decisions of the Hon’ble Apex Court and the High Courts, it was held in paragraph 18 as follows:- “As mentioned hereinbefore the learned court below - 2 - did not assign any reason whatsoever as to why he exercised his jurisdiction purported to be under section 151 of the Code of Civil Procedure. It is now well- known that assigning of reason is now a part of principles of natural justice. The duty to assign reasons while passing a judicial or quasi judicial order is mandatory and in my opinion, once the said rule is violated this court may interfere with such order either in exercise of its power under section 115 of the Code of Civil Procedure or under Article 227 of the Constitution of India.”

3. In another case, viz, Civil Review no.96 of 1986 (Jamun Poddar Vs. The State of Bihar & others), reported in 1987 PLJR 973, a Division Bench of this court vide order dated 03.08.1987, relying upon the decisions of the Hon’ble Apex Court, was of a similar view. Hence, applying the aforesaid settled principles of law, it is quite apparent from the order sought to be reviewed that no reason has been assigned while passing the judicial order which was mandatory. Hence, this civil review petition is disposed of, the contention of learned counsel for the petitioner is allowed and order dated 13.05.2008 passed in F.A.No.259 of 2007 is hereby reviewed.

4. In the facts and circumstances of the case as well as considering the urgency of the matter and the submissions of both the parties, they were given opportunity to argue in detail on the interlocutory application bearing I.A.No.1524 of 2008 filed by the opposite party-appellant in F.A.No.259 of 2007 for stay of Execution Case No.11 of 2007 pending before the learned Subordinate Judge- II, Patna City, Patna.

5. Learned counsel for the opposite party, who is defendant-appellant in the first appeal, submits that admittedly the - 3 - property belonged to the husband of the defendant after whose death it devolved upon the defendant and her four daughters. It is further stated that it is not in dispute that the defendant entered into an agreement for sale of the suit property with the plaintiff vide deed of agreement for sale dated 07.09.2003 according to which consideration money was fixed at Rs.9,00,000.00 (Rupees nine lacs), out of which Rs.50,000.00 was paid as advance money and the remaining amount of Rs.8,50,000.00 was to be paid in instalements within 24 months from the date of agreement, i.e. 07.09.2003. It is also claimed by learned counsel for the defendant-appellant-opposite party that the plaintiff-respondent-petitioner did not pay any amount within the period fixed, i.e. up to 06.09.2005 and filed a complaint Case no.964 of 2005 on 22.11.2005 alleging that the defendant got the advance money of Rs.50,000.00 by deceit and did not return it to the plaintiff when she requested for the same and hence allegation of offences punishable under Sections 420 etc. of the Penal Code was levied. Learned counsel for the appellant also avers that in the said case the defendant had to file a petition for bail bearing no.3585 of 2006 which was heard by the learned Sessions Judge, Patna who allowed the said petition on 21.09.2006 directing the defendant to surrender in the court below with account payee bank draft of Rs.50,000.00 in favour of the complainant within a month from that date and only in that event the defendant shall be released on bail. It is also averred that the said amount of Rs.50,000.00 was deposited and the defendant was released on bail. Learned counsel for the - 4 - appellant submits that only after the petitioner’s release on bail on the basis of order dated 21.09.2006, the plaintiff filed a suit for specific performance of contract bearing Title Suit No.160 of 2006 on 10.10.2006 and within a period of eleven months the said suit was decreed by the learned court below vide judgment and decree dated

22.09.2007 which is under challenge in the aforesaid first appeal.

6. Learned counsel for the appellant also submits that the finding of the trial court regarding the plaintiff being ready and willing to pay the remaining consideration money was falsified by the statement of the plaintiff herself who deposed as P.W.1 stating that during the period stated in the Bai Beyana she had no money. It is also stated that the pass book of the plaintiff, Ext.-4 series, merely showed that she had only Rs.4,00,000.00 and odd amount in the Bank. Hence, he submits that the findings in the judgment of the trial court were not in accordance with the evidence of the plaintiff herself and hence the appellant had a good prima facie case and since the appellant is in possession of a portion of the suit property, the balance of convenience lies in her favour and she will suffer irreparable loss if she is ousted before the instant first appeal is decided.

7. On the other hand, learned counsel for the plaintiff- respondent-petitioner vehemently opposes the contentions of the appellant and submits that the agreement for sale was executed by the defendant as per her own free will and after obtaining consent of her daughters which is amply supported by the statement of the - 5 - witnesses of the defendant, especially D.Ws.1 and 4. It is also claimed by the respondent that the appellant had intention to sell as she had requirement of money which is also proved by the agreement for sale (Ext.-1) and other evidences on the basis of which the trial court has arrived at the said finding. Learned counsel for the respondent further avers that no order under the provision of Order XLI Rule 5 of the Code of Civil Procedure can be passed unless the conditions as per Clause (3) were satisfied and there was sufficient cause for passing such an order and the court is satisfied that there was going to be loss or injury upon the party who was seeking stay.

8. So far the question of plaintiff being ready and willing to pay the remaining amount of Rs.8,50,000.00 is concerned, learned counsel for the respondent submits that plaintiff herself as P.W.1 clearly stated that from the date of agreement till today she had money in her house and she approached the defendants several times to pay the same, but she dilly-dallied. It is also stated by learned counsel for the respondent that the husband of the plaintiff also deposed as P.W.6 supporting her aforesaid statement, whereas P.W.3, who was said to be an intending purchaser of plaintiff’s property of Kumharar, also stated that he had given Rs.4,00,000.00 as advance to the husband of the plaintiff which the plaintiff was willing to pay to the defendant.

9. Hence, learned counsel for the respondent submits that neither there was any prima facie case in support of the appellant, nor any balance of convenience was in favour of the appellant, who - 6 - was not at all going to suffer any loss. Hence, it is stated that the interlocutory application filed by the appellant for stay of execution proceeding was fit to be rejected, especially when the sale deed has already been executed through the process of the court and the respondent had deposited the entire money in the court in accordance with the judgment and decree of the trial court which is under challenged in the instant first appeal.

10. After considering the averments of the parties and the respective claims mentioned in their application, supplementary affidavit and counter affidavit, it is quite apparent that the defendant has failed to satisfy this court that she had the entire remaining consideration money of Rs.8,50,000.00 with her during the period of two years after the agreement for sale and she had herself admitted the said fact in her deposition as P.W.1 (paragraph-40). Furthermore, the bank passbook of the respondent shows that she had only Rs.4,00,000.00 and odd amount in the Bank, whereas there is no material at all to show that she also had any other money.

11. So far the claim of the plaintiff (P.W.1) and her intending vendor P.W.3 with regard to sale of her Kumhrar land is concerned it is quite apparent that although it was claimed that in July, 2005, there was an agreement for sale for which Rs.4,00,000.00 was paid as advance by P.W.3 to the plaintiff, but neither any agreement for sale between the plaintiff and P.W.3 was produced, nor it has been shown that it was kept in the Bank, rather it has been claimed on behalf of the respondent that the said Rs.4,00,000.00 was - 7 - kept in her house for all those years. This appears to be highly improbable as at the first instance no person can give Rs.4,00,000.00 without any agreement for sale and moreover such a huge amount cannot appropriately be given in cash and kept in the house.

12. Furthermore, although according to agreement for sale (Ext.1), the remaining consideration amount of Rs.8,50,000.00 was to be paid in instalments and during the period of agreement, the respondent had Rs.4,00,00.00 and odd in the Bank, but there is no material to show that she ever issued any cheque or draft with respect to any instalment being payable to the appellant. In the said circumstances, the claim of the respondent that she was always ready and willing to pay the remaining amount to the appellant becomes quite doubtful. Hence, the appellant definitely has prima facie case in her favour.

13. So far the question of balance of convenience is concerned, even the respondent agrees that the appellant lives in a portion of the suit premises. Hence, the balance of convenience is clearly in favour of the appellant, especially when according to the agreement for sale, earlier the appellant intended to sell the suit property to the respondent for purchasing another house and distributing the remaining amount to her daughters, but the remaining amount having not been paid to her, she has obviously not purchased any house for living therein. In the said circumstances, the appellant will definitely suffer huge irreparable loss and injury if the execution case in question is not stayed during the pendency of the - 8 - instant first appeal.

14. Accordingly, I.A.no.1524 of 2008 is allowed and further proceeding of Execution Case No.11 of 2007 pending before the learned Subordinate Judge-II, Patna City, Patna is directed to remain stayed till the final disposal of the first appeal.

15. In this connection, it may be stated that all the above findings are prima facie findings with respect to stay matter and will have no effect at the time of final hearing of the first appeal. Sunil (S. N. Hussain, J.)