High Court
Case Details
Neutral Citation No. - 2024:AHC:116129 Court No. - 36 Case :- SECOND APPEAL No. - 544 of 2024 Appellant :- Smt. Chandrawati Respondent :- Devendra Singh Counsel for Appellant :- Rahul Sahai Counsel for Respondent :- Subedar Mishra Hon'ble Kshitij Shailendra,J. 1. Heard Sri Rahul Sahai, learned counsel for the plaintiff- appellant and Sri Subedar Mishra, learned counsel for the defendant-respondent. 2. A suit for cancellation of registered agreement for sale dated
Facts
08.12.2016 entered into between the plaintiff and defendant as well as decree for permanent prohibitory injunction has been dismissed by both the courts below. 3. As per the plaintiff, the said agreement was executed and consideration settled amongst the parties was Rs.50,16,000/-, out of which only a sum of Rs.15,20,000/- was to be paid but the mode of payment was such that only Rs.20,000/- in cash was actually paid by the defendant and remaining amount of Rs.15,00,000/- was in the form of two cheques No.488853 and 488852, respectively, covering sums of Rs.9,00,000/- and 6,00,000/- but the cheques were dishonored by the concerned bank(s). In paragraph no.13 of the plaint, it was alleged that when the cheques were dishonored and the plaintiff requested the defendant to cancel the agreement but the latter denied, the suit was instituted. There was a vague plea that the defendant was causing interference in the possession of the plaintiff. 4. Admittedly, no written statement was filed by the defendant and the trial court dismissed the suit ex-parte recording finding that the plaintiff had failed to produce the aforesaid cheques or the bank statement(s) of HDFC Bank and Central Bank of India and that he also did not produce any evidence to establish that any proceedings under Section 138 of N.I. Act had been instituted. Consequently, the trial court found the plaintiff's case as "not proved". 5. The plaintiff went in civil appeal which was contested by the defendant-respondent not by filing written statement or leading evidence but only by way of arguments.
Legal Reasoning
CPC, I may refer to a Division Bench judgment of this Court in Khadi Evam Gramodyog Board, U.P., Lucknow and others Vs. Purvanchal Janta Gramodyog Sewa Sansthan, Azamgarh and another: 2014 (5) AWC 4525 (DB) in which, after placing reliance upon the judgments of Supreme Court in the case of Balraj Taneja and another Vs. Sunil Madan and another: 1999 (8) SCC 396: 1999 (4) AWC 2.129 (SC) and Shantilal Gulabchand Mutha Vs. Tata Engineering and Locomotive Company Limited and another: 2013 (4) SCC 396 and various other authorities, this Court, in paragraphs no.44 and 45 of the report, held as under:- "44. Even if the defendant absented himself on the date of hearing and the suit proceeded ex-parte did not by itself entitle the plaintiffs to get a decree in his favour. The court is under an obligation to apply its mind to whatever ex-parte evidence or affidavit filed under Order XIX of the Code is on record of the case and application of mind must be writ large on the face of record. This is possible only if the court directs itself to whatever material is on record of the case, analysis the same and then come to any conclusion on the basis of evidentiary value of the ex-parte evidence or affidavit brought on record by the plaintiffs. The trial court ought to have on consideration of pleadings, formulated points for determination. The trial court ought to consider whether suit was at all maintainable and on the basis of pleadings and material on record plaintiff is entitled for relief claimed. 45. A bare reading of the impugned judgement shows that the Court after narrating the facts pleaded by the plaintiffs mentioned that the defendants is absent and further stated that the plaintiffs proved his case and court passed ex-parte decree. This is totally beyond the description of judgement. The Court has to see whether by any evidence available on record, the plaintiffs have been able to prove his case or not. Even in ex-parte proceedings, the plaintiffs have to prove his case beyond reasonable doubt."
Arguments
6. Sri Sahai urges that though certain documents were admitted by the appellate court by allowing application under Order 41 Rule 27 CPC vide order dated 26.10.2023, the appellate court has dismissed the appeal without considering the said documents. 7. The contention of Sri Sahai is that so long as the agreement stands, the same is causing prejudice to the rights of the plaintiff and, therefore, it should have been cancelled, particularly when there was no contest from the other side. He further submits that even if the courts found the case as regards cancellation of the agreement as not proved, both the courts below have ignored that the second relief claimed was for a decree of permanent prohibitory injunction and, admittedly, the plaintiff being owner of the disputed property, at least the suit was liable to be decreed in part to that extent. He further submits that since there was no contest, the suit should have been decreed under Order 8 Rule 10 CPC. 8. Learned counsel for the caveator respondent, on the other hand, submits that the defendant never caused nor intends to cause any interference in the possession of the plaintiff and even the plaint case was lacking material particulars in that regard and, hence, dismissal of suit in toto is according to law. 9. Having heard learned counsel for the parties, this Court finds that, admittedly, the basis of the claim of the plaintiff was dishonor of cheques by which a sum of Rs.15,00,000/- was intended to be paid by the defendant to the plaintiff, however, neither cheques nor bank statement(s) were filed before the trial court and, consequently, this Court does not find any error in the view taken by the trial court that the plaintiff had failed to prove his case. As far as additional evidence is concerned, I find that though cheques were brought on record but even before the appellate court, the bank statement(s) showing dishonor of cheques were not filed. 10. There is no dispute between the parties that no suit for specific performance of the agreement dated 08.12.2016 was ever filed by the defendant. Therefore, the agreement has not been used by the defendant claiming any right on that basis. The existence of the agreement, in the given facts of the case, would not prejudice to the rights of the plaintiff as regards his ownership in the disputed property about which there is no lis with the defendant. Consequently, the argument of Sri Sahai to the extent that courts below should have decreed the suit for injunction appears to have some force but, even in that regard, the necessary averments made in the plaint are found lacking as neither date nor manner of threat to possession was pleaded by the plaintiff. The plaint, when read as a whole, is for a suit for cancellation of the agreement and cause of action also had arisen on 18.04.2018 when the defendant refused to cancel the agreement. 11. The Court here notices another aspect of the matter. In the agreement itself there was a mention about an Original Suit No.588 of 2016 pending between plaintiff-appellant Chandrawati and one Devendra (not the respondent herein) and it was mentioned that the period for execution of sale deed pursuant to agreement would begin after information with regard to disposal of the said suit is given. There is nothing on record as to what happened to the said suit and as to whether actual cause of action based upon the agreement of 2016 ever arose. 12. As regards argument of Sri Sahai based upon Order 8 Rule 10
Decision
13. In view of the above discussion and undertaking given by the learned counsel for the caveator respondent that he neither intended nor intends to interfere in the possession of the plaintiff- appellant over the disputed property and that no suit for specific performance of the agreement or any other suit has been filed by the caveator, this Court finds that both the courts below have rightly dismissed the suit. 14. Consequently, recording the undertaking and statement given by the learned counsel for the caveator-respondent, the Court finds that no substantial question of law arises for consideration in the present second appeal. 16. Consequently, the second appeal has no force and is, accordingly, dismissed. Order Date :- 22.7.2024 AKShukla/-