High Court

Legal Reasoning

SA-517-1999-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 517 OF 1999WITHCIVIL APPLICATION NO. 3488 OF 1999INSECOND APPEAL NO. 517 OF 1999Mirabai w/o Baburao Patil,Age : 46 years,Occupation : Agriculture & Household,Resident of Chikhali (Bk), Post Harankhede,Taluka Bhusawal,District : Jalgaon.… Appellant[Ori. Plaintiff]VersusSajanbai Ramrao PatilDied through legal heirs:1]Pushpabai w/o Yeshwant PatilAge 58 years, Occ : Agri,r/o Chikhali (Bk) PostHarankhede Taluka BodhwadDistrict Jalgaon.2]Surendra s/o Yeshwant PatilAge 40 years, Occ : Agrir/o Chikhali (Bk) PostHarankhede Taluka BodhwadDistrict Jalgaon.3]Vinod s/o Yeshwant PatilAge 38 years, Occ : Agrir/o Chikhali (Bk) PostHarankhede Taluka BodhwadDistrict Jalgaon.4]Gajanan s/o Yeshwant PatilAge 36 years, Occ : Agri r/o Chikhali (Bk) PostHarankhede Taluka BodhwadDistrict Jalgaon. SA-517-1999-2- 5]Archana w/o Subhash Hiwale,Age 34 years, Occ : Householdr/o Chikhali (Bk) PostHarankhede Taluka BodhwadDistrict Jalgaon.6]Alkabai w/o Nivrutti PatilAge 62 years, Occ : Householdr/o Chikhali (Bk) PostHarankhede Taluka BodhwadDistrict Jalgaon.… Respondents…..Mr. N. K. Kakade, Advocate for the Appellant.Mr. Navin S. Shah, Advocate h/f Mr. Swapnil S. Patil, Advocate forrespondent nos. 1 to 6..... CORAM :ABHAY S. WAGHWASE, J. Reserved on: 22.07.2024Pronounced on: 14.08.2024ORDER : 1.In this second appeal, exception has been taken to thejudgment and order dated 29.10.1998 passed by learned Joint DistrictJudge, Jalgaon in Regular Civil Appeal No. 149 of 1995 arising out ofjudgment and order dated 29.04.1995 in Special Civil Suit No. 195 of1993.FACTUAL MATRIX2.Present Appellant, original plaintiff instituted Special Civil SuitNo. 195 of 1993 for specific performance of contract for sale broughtby the plaintiff against the defendant SA-517-1999-3- 3.Sum and substance of the plaintiff’s case was that plaintiff anddefendant/present respondent entered into an agreement to sale on02.06.1988 regarding sale of 2 hector land owned by defendant inblock no. 131 for a valuable consideration of Rs.40,000/-. Earnestamount of Rs.15,000/- was paid. It was agreed between the partiesthat plaintiff has to clear the encumbrances of the suit land as well asanother land block no. 144 belonging to the defendant. Prior to saledeed, defendant was in need and hence obtained Rs.2,000/- fromplaintiff and executed a receipt on stamp paper. Plaintiff paidencumbrances upon the suit land to the tune of Rs.4,537.50/- andRs.10,670/- to clear the encumbrances upon another land block no.144 as agreed and thus, total amount of Rs.32,207.50/- out of totalconsideration of Rs.40,000/- was paid to the defendant.Subsequently, plaintiff called upon defendant to execute the saledeed, but defendant deliberately failed to perform her part of contractand hence suit was instituted. 4.Defendant appeared and resisted the suit denying agreement ofsale or receiving earnest amount and payment of encumbrances byplaintiff. Defence taken was that it was transaction of pure hand loan.On blank paper, defendant’s signatures were obtained and suit hasbeen instituted. SA-517-1999-4- 5.Trial was conducted before learned IInd Joint Civil Judge SeniorDivision, Jalgaon vide Special Civil Suit No. 195 of 1993, in whichfollowing issues came to be framed :ISSUESFINDING1.Does plaintiff prove that she has share of E.1 and4 anna as and defendant has share of Rs.9 and 8annas in field gat No.132 of Chikali as described?Affirmative2.Does she prove that defendant has executedagreement deed on 02.06.1988?Affirmative3.Does she prove that she paid Rs.15,000/- towardsearnest money to the defendant?Affirmative4.Does she prove that she was put in possession ofsuit field on 02.06.1988 and is in possession of ittill filling of this suit?Negative5.Does she prove that she has paid the loan amountagainst suit field and field Gat No. 144?Proved inrespect of blockno. 144.6.Does she prove that she paid Rs.2000/- towardsamount of consideration on 09.06.1989?Negative.7.Does she prove that it was agreed to execute thesale deed after payment of loan amount againstsuit field and gat No. 144?Affirmative8.Does she prove that she was and is willing topurchase the suit field?Affirmative SA-517-1999-5- 9.Does defendant prove that the documentexecuted on 02.06.1988 is mortgage deed?Does notsurvive.10.Does she proved that the plaintiff has 3 annas and4 paise share in the suit field and she has 8 annasand her step son has 3 annas and 4 paise share inthe suit field?Does notsurvive in viewof my findingon Issue No.1.11.Does she prove that the suit transaction is moneylending transaction?Negative.12.Does she prove that her thumb mark wasobtained on blank stamp paper?Negative.13.Whether the suit is barred by limitation?Negative.14.Whether the plaintiff has paid insufficient courtfee stamp?Negative.15.What order, relief and decree?As per finalorder below.6.After hearing both sides and appreciating the oral anddocumentary evidence, learned trial court partly decreed the suit. Suitfor specific performance came to be dismissed, but plaintiff was heldentitled to refund of amount of Rs.25,670/- along with 18% interesti.e. vide judgment dated 29.04.1995. SA-517-1999-6- 7.Said judgment was assailed by original plaintiff i.e. presentappellant by filing Regular Civil Appeal No. 149 of 1995. Said Appealcame to be dismissed by the first appellate court on 29.10.1998confirming the judgment passed by the court of IInd Joint CJSD,Jalgaon. 8.Feeling aggrieved by the dismissal of appeal, original plaintiffhas knocked the doors of this Court by filing instant Second Appeal.This Court by order dated 05.08.1999, admitted the appeal byformulating two points which are as under :“(i)Having once reached to the conclusion that theagreement at exhibit 66 was proved and that the amountreceived by way of earnest amount has been paid towardsrefund of the loan amount by the defendants, would it beappropriate, in such a case, not to grant the decree forspecific performance of the contract merely by using thewords “exercise of discretion by the Court?and(ii)Is it a case wherein can it be said that the courtsbelow have judiciously exercised the discretion in refusingto grant the decree for specific performance of thecontract? SA-517-1999-7- SUBMISSIONSOn behalf of the appellants:9.Learned counsel for appellant appraised the Court about thenature of suit in trial court contending that there was agreement tosale at Exhibit 66. Its Execution has not been denied.Defendant/respondent had accepted earnest amount. As agreed,present appellant had cleared the encumbrances. Thus, according tohim, out of total consideration of Rs.40,000/- substantial amount ofRs.32,207.50/- was already borne and paid by plaintiff and wasalways ready and willing to perform her part of contract. Defendantavoided and therefore, as required under law, by two notices,defendant was called upon to perform her part of contract. Accordingto him, all requirements for entitlement of relief of specificperformance were available and made out in the trial court itself andtherefore the suit ought to have been decreed. That, there was failureon the part of trial court in appreciating the evidence as well assettled law. That, suit was partly decreed, i.e. only for refund ofmoney with interest, which was not the claim of plaintiff/appellant.Therefore, plaintiff had assailed the judgment of trial court. 10.He next submitted that, case was reiterated in appellate court.That, first appellate court also did not consider and appreciate SA-517-1999-8- plaintiff’s case in proper perspective. That, essential and mandatoryrequirements of Order XLI Rule 31 of the Code of Civil Procedure(CPC) were not adhered to by the first appellate court. Therefore,learned counsel prays to remand the matter back to the appellatecourt for fresh consideration. On behalf of the defendants :11.On the other hand, supporting the judgment passed by trialcourt as well as first appellate court, learned counsel Mr. Shah wouldsubmit that, taking disadvantage of defendant/respondent, anilliterate and rustic lady, transaction of hand loan was tried to beconverted into alleged agreement to sale when there was none. That,defendant was a widow. Plaintiff did not substantiate her claim anddid not approach court with clean hands. That, on completeappreciation, trial court formulated several issues and duly answeredthe same. According to him, there is no illegality or perversity in theconclusion reached at by trial court. He also took this court throughthe observations of trial court in para 33 to 35 and supported thesame as well as the conclusion reached at. He branded the documentExhibit 66 to be fabricated one. He also supported the judgmentpassed by the first appellate court by submitting it to be just, legal SA-517-1999-9- and proper and thereby prays to dismiss the Second Appeal and alsoresisted the prayer of remand. Learned counsel for the defendants sought reliance onPemmada Prabhakar and others v. Youngmen’s Vysya Association andothers (2015) 5 SCC 355 and A. C. Arulappan v. Ahalya Naik 2001DGLS(Soft) 972/(2001) 6 SCC 600.ANALYSIS12.Here, suit was for specific performance of contract on thestrength of agreement to sale. Perused the judgment of trial court.The issues framed at Exhibit 29 are already reproduced in aforesaidpara. It seems that in trial court, to establish claim, plaintiff adducedher own evidence in the capacity as PW1 at Exhibit 38 and alsoadduced evidence of PW2 Samadhan and PW3 Pundlik and Exhibits63 and 65 respectively. 13.The sum and substance of plaintiff’s case in trial court is thatagreement to sale Exhibit 66 was executed on 02.06.1988. As agreed,government encumbrances, which were to be borne by plaintiff, areduly paid and there is documentary evidence to that extent. Plaintiff SA-517-1999-10- also claimed to have been put in possession on the day of agreementto sale itself. 14.All above averments, contentions and pleadings are refuted bydefendant by examining herself at Exhibit 70 along with her evidenceand written statement, she has also placed on record copies of repliesdated 23.02.1993 as well as 05.04.1993 to the notices of plaintiff andalso placed on record application for temporary injunction, orderbelow Exhibit 6 in suit No. 163 of 1993 and certified copy of appealpreferred by her against the order of Tahsildar in respect of makingentries of 8 anna share in the name of plaintiff in possession column.Precisely defence is that, there was no agreement to sale as alleged.She has not received any earnest amount as claimed. Rather, it was asimple hand loan transaction which is surreptitiously converted intoagreement to sale. Plea of plaintiff about plaintiff to be in possessionis also discarded in toto. 15.On going through the record, more particularly judgment offirst appellate court, it is noticed that after hearing learned counselfor appellant and marking absence of learned counsel Mr. D. K.Chaudhary for respondent original defendant even though repeatedlycalled, and taking note of the fact that no cross objection or cross SA-517-1999-11- appeal was filed questioning the findings of trial court which wentagainst the defendant, learned trial court observed in para 5 asunder :“5.I have perused the entire case record and bestowedmy thoughtful considerations to the submissions made byMr. Akole, the learned counsel for the appellant. Since nocross-objection / cross appeal has been filed, the findings inrespect of the issues, which has been answered against thedefendant, has become final and they are not amenable toreassessment. Hence, the only point, which arise for mydetermination, is as under, along with my findings thereagainst, for the reasons to be enumerated in subsequentparagraphs. PointsFindings1.Whether the learned trial court hadexercised its discretion in legal and propermanner while refusing the relief of specificperformance of contract by granting therelief of refund of consideration along withinterest thereon?Yes.2.What order ?The appeal isdismissed.16.Thus, learned first appellate court formulated only and solepoint for determination as above and appeal came to be dismissedconfirming the judgment and order passed by learned Jt. CJSD,Jalgaon dated 29.04.1995. SA-517-1999-12- 17.Here, the fundamental and principal ground in Second Appealis non-compliance of Order XLI Rule 31 of CPC and hence, prayers forremanding back the matter to the first appellate court for fresh andproper re-appreciation.18.For proper apprehension and appreciation order XLI Rule 31 isreproduced as under :“Odrder XLI : Appeals From Original Decrees1. to 30. ….31. Contents, date and signature of judgment.—Thejudgment of the Appellate Court shall be in writing andshall state—(a) the points for determination; (b) the decision thereon;(c) the reasons for the decision; and(d) where the decree appealed from is reversed or varied,the relief to which the appellant is entitled, and shallat the time that it is pronounced be signed and datedby the Judge or by the Judges concurring therein.19.Therefore short ground for consideration in this Second Appealis, whether there is compliance of Order XLI Rule 31 in letter andspirit. SA-517-1999-13- 20.There are catena of judgments on the legal requirements ofOrder XLI Rule 31. Useful reference could be made to the knowndecisions and precedents on the above aspect wherein scope, powerand duty of first appellate court while exercising powers underSection 96 of C.P.C. read with Order XLI Rule 31 are enunciated. In Kurian Chacko v. Varkey Ouseph reported in AIR 1969 Ker316, it has been observed as under ;“2] An appellate court is the final Court of fact ordinarilyand therefore a litigant is entitled to a full and fair andindependent consideration of the evidence at theappellate stage. Anything less than this is unjust to himand I have no doubt that in the present case the learnedSubordinate Judge has fallen far short of what is expectedof him as an appellate Court.”In Santosh Hazari v. Purushottam Tiwari reported in (2001) 3SCC 179, the Hon’ble Apex Court in para 15 has observed that;“15. The appellate Court has jurisdiction to reverse oraffirm the findings of the Trial Court. First appeal is avaluable right of the parties and unless restricted by law,the whole case is therein open for rehearing both onquestions of fact and law. The judgment of the appellate SA-517-1999-14- Court must, therefore, reflect its conscious application ofmind, and record findings supported by reasons, on all theissues arising along with the contentions put forth, andpressed by the parties for decision of the appellate Court.……. while reversing a finding of fact the appellate Courtmust come into close quarters with the reasoning assignedby the trial Court and then assign its own reasons forarriving at a different finding. This would satisfy the Courthearing a further appeal that the first appellate Court haddischarged the duty expected of it.”In H. K. N. Swami v. Irshad Basith, reported in (2005) 10 SCC243, the Hon’ble Apex Court reiterated the same principle in para 3 ofthe judgment, which reads as under :“3. The first appeal has to be decided on facts as well as onlaw. In the first appeal parties have the right to be heardboth on questions of law as also on facts and the firstappellate court is required to address itself to all issues anddecide the case by giving reasons. Unfortunately, the HighCourt, in the present case has not recorded any findingeither on facts or on law. Sitting as the first appellate courtit was the duty of the High Court to deal with all the issuesand the evidence led by the parties before recording thefinding regarding title.” SA-517-1999-15- Very recently, the Hon’ble Apex Court in the case of Manjualand others v. Shyamsundar and others, reported in (2022) 3 SCC 90,observed as under : “8. Section 96 of the Code of Civil Procedure, 1908 (forshort, ‘CPC’) provides for filing of an appeal from thedecree passed by a court of original jurisdiction. Order 41Rule 31 of the CPC provides the guidelines to the appellatecourt for deciding the appeal. This rule mandates that thejudgment of the appellate court shall state(a)points for determination;(b)the decision thereon;(c)the reasons for the decision; and(d)where the decree appealed from is reversed or varied,the relief to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse oraffirm the findings of the trial court. It is settled law thatan appeal is a continuation of the original proceedings. Theappellate court’s jurisdiction involves a rehearing of appealon questions of law as well as fact. The first appeal is avaluable right, and, at that stage, all questions of fact andlaw decided by the trial court are open for re-consideration. The judgment of the appellate court must,therefore, reflect conscious application of mind and mustrecord the court’s findings, supported by reasons for itsdecision in respect of all the issues, along with the SA-517-1999-16- contentions put forth and pressed by the parties. Needlessto say, the first appellate court is required to comply withthe requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in thejudgment.”21.Keeping above settled precedents in mind and on reverting tothe case in hand, it is noticed that the first appellate court has notadhered to the mandate spelt out in Order XLI Rule 31 of CPC. It is soevident from the body of the judgment, as only learned counsel forappellant was heard and solitary point for determination, reproducedabove, was formulated and answered. Here, suit was for specificperformance of contract. It was expected of first appellate court to re-appreciate all 15 issues casted by learned trial judge and ought tohave independently recorded findings whether learned trial court wascorrect in the assessment while recording conclusion to each of theissues independently. Apparently this exercise of re-appreciation of allthe issues and findings has not been undertaken by the first appellatecourt and resultantly, the mandatory requirement has not beencomplied with. 22.Learned counsel for respondent/original defendant merelysupported the findings of first appellate court by relying on above SA-517-1999-17- rulings which are legal issues. Admittedly, even when learned trialcourt has answered issue nos. 1 to 3, 7 and 8 againstrespondent/defendant, there is no cross objection or cross appeal. 23.In the light of above, there is force and substance in the pointraised in Second Appeal regarding non compliance of Order XLI Rule31 as a result of which, this Court is constrained to grant the prayersof remanding the appeal back for fresh consideration in toto, i.e. onall issues, by affording opportunity to both sides to re-agitate theirclaims. Hence, the following order:ORDERI.Second Appeal is partly allowed. II.The matter is remanded to the first appellate court for freshconsideration. III.The first appellate court shall make every endevour to deal withand decide the appeal as expeditiously as possible and moreparticularly within a period of six months from the date ofappearance of the parties. IV.Pending Civil Application stands disposed of. [ABHAY S. WAGHWASE, J.]vre