Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK S.A. O. NO. 10 OF 2004 From a judgment dated 5.4.2004 passed by Shri P.K. Rath, learned Addl. District and Sessions Judge (FTC) Bhadrak in Title Appeal No. 54 of 1994 reversing the judgment dated 12.8.1994 passed by Shri K.N. Panigrahi, learned Civil Judge (Senior Division), Bhadrak in T.S. No. 81 of 1987-I. ------------ Smt. Satyabhama Satpathy and another …… Appellants -Versus- Sri Narana Mishra … Respondent For Appellants: M/s. P.K. Rath, R.C.Jena & R.N. Parija. For Respondent: M/s. D.K.Mishra, G.K. Nayak & B.Behera. --------------------- Decided on 21.08.2012 ---------------------- ------ P R E S E N T :
Legal Reasoning
THE HONOURABLE SHRI JUSTICE M. M. DAS ------------------------------------------------------------------------------ M.M. DAS,J. The appellants have filed the aforesaid appeal challenging the judgment dated 5.4.2004 passed in T.A. No. 54 of 1994 by the learned Additional District Judge (FTC), Bhadrak. 2. The facts reveal that the appellants as plaintiffs filed T.S. No. 81 of 1987-I seeking a decree for declaration, declaring the sale-deed executed by their deceased father (Trilochan Mishra) in 2 favour of the defendant (respondent) to be void on the ground that the said sale-deed has been obtained by exercise of undue influence. The plaintiffs also prayed for a decree for permanent injunction. The case of the plaintiffs is that during the last days of the life of their father Trilochan Mishra, who was ill and under the care and custody of the defendant (respondent), who was none, other than his nephew, the defendant taking advantage of his old age and exercising undue influence, got the disputed sale-deed executed by him when he was in an unconscious state of mind. It was further pleaded by them that their deceased father was never in want of money and, as such, had no legal necessity to sell the suit land. Instead of using the phrase ‘undue influence’, the plaintiffs mentioned in the plaint that the sale-deed was obtained by practicing fraud. The defendant – respondent in his written statement denying the averments made in the plaint specifically contended that the suit is not maintainable. 3. The learned trial court on consideration of the rival pleadings framed as many as ten issues, out of which, issue No. 6 was “ is the sale-deed of defendant from Trilochan Mishra valid, genuine, duly executed and registered and for consideration”. No 3 specific issue was framed with regard to undue influence or fraud. After trial of the suit, with regard to the aforesaid issue no. 6, the learned trial court found the transaction of sale to have been vitiated with fraud and in reaching such conclusion, the learned trial court placed reliance on the fact of the old age and suffering of late Trilochan Mishra and certain other circumstances. The learned trial court ultimately decreed the suit filed by the appellants-plaintiffs. The defendant – respondent challenged the said judgment and decree in T.A. No. 54 of 1994. The learned lower appellate court came to the finding that the case actually involves the issue of undue influence and the word “fraud” has been inappropriately used by the plaintiffs. Finding that no issue of undue influence has been framed by the learned trial court, came to the conclusion that in view of non-framing of such issue, the parties have not led evidence upon the same and the said issue was the crux of the matter. Thus holding, the learned appellate court remanded the case. In the remand order, the learned appellate court held in paragraphs – 7, 8 and 9 as follows:- “7. Perused the learned lower court record. On a close and careful reading of the pleadings of the parties, it is crystal clear that the plaintiffs have averred that as there was no chance of cure of Trilochan from cancer as 4 per the advice of the treating doctors of S.C.B. Medical College and Hospital, they brought back Trilochan to his native village, so that he can breath his last in his own house. They have also further pleaded that in this way Trilochan was seriously ill in his last days of life and bed-ridden and as the plaintiffs were married they left Trilochan under the care and custody of the defendant as it was not possible on their part to remain all the times in the house of Trilochan. It is also averred that during this period when Trilochan was in the care and custody of the defendant who is none other than his nephew a fiduciary relationship developed between them and taking advantage of that relationship exercising undue influence the defendant obtained a registered sale deed. The aforesaid plea of the plaintiffs have been stoutly denied by the defendant. Thus, the tenor of pleadings clearly discloses a case of undue influence and the word ‘fraud’ has been inappropriately mentioned in the pleadings of the plaintiffs. On a careful and in-depth assessment of the evidence and judgment of the learned lower court, I find that the learned lower court has not bestowed its attention to this aspect and no issue on this aspect has been framed which has escaped the notice of the court. So on this point, a specific issue ought to have been framed by the learned lower court. In absence of such an issue the parties did not lead any on that line which has resulted in side- lining the main issue by the lower court. Exercise undue influence is the crux of the matter and the fate of the suit hangs in decision of this material point. Non- framing of such a vital issue has caused prejudiced of these parties. So the impugned judgment and decree is to be set aside. For the right decision of the suit the following issue is to be decided by the learned trial court in addition of the issue already on record. “Whether the registered sale deed dated 28.2.85 was obtained by defendant by exercising undue influence over Trilochan Mishra ? 8. The learned Trial Court is directed to take required evidence on this issue and decided all the issues, i.e., issue already on record and new issue of the suit taking all the evidence on record into account and dispose of the suit 5 afresh. The learned lower court is directed to dispose of the suit as early as possible. 9. Accordingly, the appeal is allowed and the impugned judgment and decree dated 12.8.94 and 26.8.94 respectively of the learned Civil Judge (Senior Division), Bhadrak is hereby set aside. The suit is remanded back to the lower court to dispose of it as afresh as indicated above. The parties are directed to appear before the learned lower court on 29.4.2004 to receive necessary direction”. The appellants being aggrieved have preferred this SAO under the provisions of Order 43, Rule 1 (u) C.P.C. The remand order of the learned appellate court though appears to be one under Order 41, Rule 23-A C.P.C., but, in fact, the learned appellate court in the impugned judgment, as quoted above, has come to the conclusion that due to non-framing of an issue with regard to undue influence which is a vital issue, the same has caused prejudice to the parties. This Court, therefore, finds that the learned appellate court should not have set aside the judgment and decree of the learned trial court in its entirety and remanded the matter back to the learned trial court for fresh adjudication. 4. In the circumstances of the case, the learned lower appellate court should have exercised its power under Order 41, Rule 25 C.P.C. which reads thus:- 6 “25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from - Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor (within such time as may be fixed by the Appellate Court or extended by it from time to time)”. 5. In view of the above conclusion, the judgment and decree of the learned lower appellate court stands set aside. This Court, therefore, directs that in accordance with the provisions of Rule 25 of Order 41 C.P.C. the learned lower appellate court shall keep the appeal record with it and the learned trial court shall proceed to try the issue framed by the leaned lower appellate court in paragraph – 7 of the judgment as quoted above and shall return the evidence to the learned lower appellate court together with its findings thereon and the reasons therefor within a period of six months from today. On return of the findings thus recorded by the leaned trial court along with its findings, to the learned appellate court, the same shall form a part of the record in the suit and the 7 learned lower appellate court thereafter shall proceed with the appeal in accordance with Rule26 of Order 41 C.P.C. and finally dispose of the appeal within a further period of three months from the date of return of the evidence along with its findings by the learned trial court to the learned lower appellate court. 6. The SAO is accordingly allowed, but in the circumstances without cost. The interim order passed on 6.10.2004 stands vacated. ……………………… M. M. Das, J. Orissa High Court, Cuttack. August 21st ,2012/Biswal. 8