RAJAKUMARAN v. RASAMMAL AND GURUVAMMAL — 1997 DIGILAW 845 (MAD)

Judgment : M. KARPAGAVINAYAGAM, J. ( 1 ) THIS civil revision petition is directed against the decreetal order dated 21. 7. 1997 passed in I. A. No. 329 of 1996 in unfiled Appeal Suit on the file of the learned Principle District Judge, srivilliputhur, condoning the delay of 240 days caused in filing the appeal suit and the application filed by the plaintiff-respondent. ( 2 ) THE petitioner is the defendant in a suit filed for partition by the first plaintiff-respondent in O. S. No. 409 of 1994 on the file of the District Munsifs Court, Srivilliputhur by the judgment and decree dated 25. 8. 1995. The Additional District Munsif, Srivilliputhur dismissed the suit. Within the period of limitation to prefer an appeal, the respondents herein did not even apply for copies of the judgment and decree in the above said suit. Only after the expiry of the said period of limitation, the copy of the judgment was applied for and obtained. Thus, there was about 240 days delay to file the first appeal before the Principal District Judge, Srivilliputhur. In order to condone the delay, the respondents filed an Interlocutory Application No. 329 of 1996 which was effectively resisted by the petitioner herein. However, the said application was allowed and the delay was condoned. ( 3 ) AGGRIEVED by the same, this Civil revision Petition has been preferred by the petitioner-defendant. Mr. S. Sundaragopal mainly contended that the delay ought not to have been condoned, in view of the judgment of this Court in S. Pakkiriraj v. S. N. Kulasekaran in which it has been held that it is not possible to condone the delay under section 5 of the Limitation Act, if a copy application was filed after the period of limitation. ( 4 ) ADMITTEDLY, though the decree was passed dismissing the suit on 15. 8. 1995, the plaintiff-respondent through their counsel filed the application for copies only on 20. 2. 1996. The reason for the delay is that after the dismissal of the suit, the plaintiff got back the bundle from her counsel and kept it in her house and the same has been misplaced and she was not able to trace out till 19,2. 1996 and after it was traced out, the plaintiff contacted her counsel on 22. 2. 1996. The reason for the delay is that after the dismissal of the suit, the plaintiff got back the bundle from her counsel and kept it in her house and the same has been misplaced and she was not able to trace out till 19,2. 1996 and after it was traced out, the plaintiff contacted her counsel on 22. 2. 1996 who intum filed a copy application for the judgment and decree and that therefore, on getting the copies immediately, the appeal was filed. As such, the misplacing of the bundle was shown as a reason for the delay of 240 days. ( 5 ) THE Learned Principal Sessions Judge, on considering the judgment of the Supreme court reported in AIR 1962 SC 361 , AIR 1987 SC 1353 and AIR 1969 SC 575 in which the Apex Court has observed as follows : "expression sufficient cause in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bonafides is imputable to the party seeking condonation of the delay. " the lower Court also observed in the main order that it was not able to find that any lack of bonafides on the part of the respondents, especially when they are women, villagers and illiterates, but now, the point raised before this Court is whether in the filing an application for copies, after the expiry of the period of limitation, could the delay be condoned at all. ( 6 ) AS pointed out by the learned counsel for the petitioner, it is true that in 1994 (1) LW 418 , (supra) it is held that when the copy application itself was filed after the period of limitation, the delay at any cost should not be condoned. However, as pointed out by the counsel for the respondent, through his counter, subsequently, the Full Bench of this Court held in the judgment in The Special Tahsildar (L. A.)B. H. E. L. , Ranipet v. M. G. Sampathkumar and another as follows :"section 5 of the Limitation Act does not prohibit any appellant/applicant to file an application under Section 5 of the Limitation Act to condone the delay. Even if the appellant/applicant has applied for and obtained certified copies of judgment and decree after prescribed period of limitation in all cases what is to be decided is! whether sufficient cause to condone the delay has shown or not. "therefore, the main submission made by the counsel for the petitioner would fail in view of the Full Bench judgment of this Court. 7. I have also gone through the Counter and the order passed by the Principal Sessions judge. The details given in the Counter as well as the order would reflect the reasons for the delay that has been caused which was considered to be sufficient. At any rate, I am not able to persuade myself to hold that the delay was missed the appeal by his judgment dated 30. 9. 92. 5. At the time of admission of. this appeal, the. following questions of law were formulated by this Court on 17. 12. 93 : (1) Whether the suit was barred under the provisions of Section 53a of the tp ACT? (2) Whether the order passed by the trial Court under the provisions of order 17, Rule 1, CPC, directing the defendants to produce all the witnesses on the same day is an illegal order?by the said order dated 17. 12. 93, the" appellant-defendants were however given leave to agitate any other point of law at the time of hearing. 6. Mr. K. N. Bhattacharjee, learned counsel appearing for the appellant-defendants, submitted that although the appellant-defendants were ready to examine initially two witnesses and thereafter to produce other witnesses, the respondent-plaintiff insisted on production of all the witnesses at a time and on such insistence on the part of the respondent-plaintiff the trial Court did not permit the appellant-defendants to examine even the two witnesses that they had produced before the court. Mr. Bhattacharjee referred to the order-sheet of the trial Court to show that the trial Court did. npt give proper opportunity to the appellant-defendants to adduce evidence. It was next submitted by MR. Bhattacharjee that Ext. A which has been produced by the appellant-defendants in the Court below would show that the respondent-plaintiff and, the appellant-defendant No. 2 had entered into a contract in writing for sale of the suit land and the appellant-defendant No. 2 had already paid Rs. 3001/- to the respondent-plaintiff for the said contract of sale. Bhattacharjee that Ext. A which has been produced by the appellant-defendants in the Court below would show that the respondent-plaintiff and, the appellant-defendant No. 2 had entered into a contract in writing for sale of the suit land and the appellant-defendant No. 2 had already paid Rs. 3001/- to the respondent-plaintiff for the said contract of sale. He further submitted that the Commissioners report which was submitted before the trial Court would indicate that the appellant-defendants had taken possession of the land and had put fencing around the suit land and had done. some acts in furtherance of the said contract of sale. Ext. B which was a minute of meeting which took place between the representatives of the respondent-plaintiff No. 1 and the appellant-defendants would also show that there was a further compromise to the effect that on the appellant-defendants paying a further sum of Rs. 10,000/-to the respondent-plaintiff, the suit was to be withdrawn. According to Mr. Bhattacharjee, a reading of the evidence on record and in Particular Ext. A and B would show that all the ingredients of Section 53a of the Transfer of Property act was satisfied and that the appellant-defendants were entitled to retain the possession of the suit land. He cited the judgment of the apex Court in the case of Nathulal v. Phoolchand, for the proposition that where the four conditions specified in Section 53a of the Transfer of Property Act are fulfilled, the transferor or any person claiming under him is debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken or continued in possession. Mr. Bhattacharjee vehemently argued that the appellant-defendants were entitled to reply on Section 53a of the Transfer of Property Act as a shield against any action by the respondent-plaintiff for recovery of possession of the suit land and the trial court as well as the first appellate Court have not properly appreciated this position of law. Mr. Bhattacharjee cited the judgment of the learned Single Judge. Judge of this Court in the case of K. Ibhohal Singh v. Ch. Iboyaima Singh, and submitted that under Order 41, Rule 31, cpc, the judgment of the appellate Court must state the points for determination and the decision of the appellate Court on the points for determination as its finding of facts are final. Judge of this Court in the case of K. Ibhohal Singh v. Ch. Iboyaima Singh, and submitted that under Order 41, Rule 31, cpc, the judgment of the appellate Court must state the points for determination and the decision of the appellate Court on the points for determination as its finding of facts are final. But in the instant case, a reading of the judgment of the first appellate Court would show that the points for determination and the decision of the first appellate Court on the said points for determination have not been indicated and hence the judgment of the first appellate Court is liable to be set aside. Mr. Bhattacharjee cited a recent decision of the supreme Court in the case of Kochukakkada abookacker (Dead) by LRs and others v. Attah kasim and others, for his submission that the High Court would not decline to interfere with the judgment of the first appellate Court merely on the ground that there were concurrent findings recorded by the trial Court and the first appellate Court on the issues framed in the suit and he contended that the High court can always interfere with such concurrent findings if it is satisfied that any of the parties has suffered substantial injustice. ( 7 ) IN reply Mr. A. K, Chakravorty, learned counsel for the respondent-plaintiffs, submitted, relying on the judgment of the Supreme court in the case of Sardar Govindrao Mahadik v. Devi Sahai and others, that for qualifying for the protection of the doctrine of part performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by writing signed by the person sought to be bound by it and from which the terms necessary to constituted the transfer can be ascertained with reasonable certainty. In the present case, there was no such contract in writing signed by the respondent-plaintiff for sale of the suit land from which the terms necessary to constitute the transfer could be ascertained and hence the defence against recovery under section 53a of the Transfer of Property Act was not available to the appellant-defendants. He further argued that Ext. A on which the appellant-defendants have relied on is a receipt showing payment of Rs. He further argued that Ext. A on which the appellant-defendants have relied on is a receipt showing payment of Rs. 3001/-by the appellant-defendant No. 2 to the respondent-plaintiff, but the said receipt does not relate to the suit land but to some other land. He contended that so far as the suit land is concerned, the respondent-plaintiff. had issued a letter to the appellant-defendants to pay within two days Rs. 10,000/-towards the balance consideration of the suit land but the appellant-defendants did not pay, which would show that the appellant-defendants were not ready and willing to perform their part of the contract of sale, if any. Mr. Chakravorty finally contended that the power of this Court in a Second Appeal is limited to substantial questions of law arising in the appeal and in the present appeal there is no error of law in the judgments of the trial Court and the first appellate Court for this Court to reverse the said judgments. ( 8 ) THE first substantial question of law which arises for determination in this Second appeal is; as to whether the suit that was. filed by the respondent-plaintiff as owner of the suit land, for recovery of possession of the suit land against the appellant-defendants, was barred under Section 53a of the Transfer of property Act. In Nathulal v. Phoolchand (supra)cited by Mr. Bhatacharjee, learned counsel for the appellants, the Supreme Court after analysing the provisions of Section 53a of the Transfer of Property Act, held that the four conditions necessary for making out the defence of part performance to an action in ejectment by the owner are : (1) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; (2) that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in part performance of the contract; (3) that the transferee has done some act in furtherance of the contract; and (4) that the transferee has performed or is willing to perform his part of the contract. Thus the first condition for making out the defence of part performance to an action for recovery of possession is that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary, to constitute transfer can be ascertained with reasonable certainty. The aforesaid decision of the Supreme Court in the case of Nathulal v. Phoolchand (supra) was again discussed by the Supreme Court in the later case of Sardar Govindrao Mahadik and another v. Devi Sahai and others (supra) relied on by Mr. Chakravorty, learned counsel for, the respondents. The Supreme Court clarified in the said later decision as under :"this view may not be wholly applicable to the situation in India because an oral contract is not envisaged by section 53-A. Even for invoking the equitable doctrine of part performance there has to be a contract in writing from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. Therefore, the correct view in India would be, look at that writing that is offered as a contract for transfer for consideration of any immovable property and. then examine the acts said to have been done in furtherance of the contract and find out whether there is a real nexus" between the contract and the acts pleaded as in part performance so that to refuse relief would be perpetuating the fraud of the party who after having taken advantage or benefit of. the contract backs out and pleads non registration as defence, a defence analogous to section 4 of the Statute of Frauds. "thus the Supreme Court had held in the aforesaid case that Section 53a does not envisage on oral contract, but a contract in writing from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. The question, therefore, is as to whether there was, in the present case, a contract in writing from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. ( 9 ) IN Paragraph-14 of the written statement filed by the appellant-defendants, the appellant-defendants have relied on the money receipt dated 17. 8. 78 as the contract in writing which has been marked in course of trial as Ext. A. The said Ext. A is extracted herein below :"money Receipt received with thanks the sum of Rs. ( 9 ) IN Paragraph-14 of the written statement filed by the appellant-defendants, the appellant-defendants have relied on the money receipt dated 17. 8. 78 as the contract in writing which has been marked in course of trial as Ext. A. The said Ext. A is extracted herein below :"money Receipt received with thanks the sum of Rs. 3001 (Rupees Three Thousand One only) from Smt. Purabi Sarkar W/o shri Niranjan Sarkar of Bordwali, agartala towards part payment of an advance for cost of a plot of land. Sd/- S. C. Dam 17. 8. 78 sukhes Ch. Dam dams Lodge kunjaban Road agartala. "from the aforesaid Ext. A, it appears that the respondent-plaintiff has agreed to transfer a plot of land and for such transfer he has received a sum of Rs. 3001/- from the appellant-defendant No. 1, but the identity and the area of the plot of land agreed to be sold by the respondent-plaintiff to the appellant-defendant No. 1 is not indicated. Further, the aforesaid Ext. A does not show the total consideration for which the plot of land is to be sold. Thus from the Ext. A, the terms necessary to constitute the contract, namely identity and the area of land which was to be transferred and the price for which the land was to be sold cannot be ascertained with reasonable certainty. Therefore, the finding of the first appellate Court in the impugned judgment that the Ext. A does not give with any reasonable certainty the terms constituting the transfer is correct. In my opinion, since the very first condition for a defence of part performance under Section 53a of the transfer of Property Act to an action for recovery of possession instituted by the owner of the land is not satisfied, the trial Court as well as the first appellate Court were right in rejecting the said defence of the appellant-defendants. ( 10 ) MR. Bhattacharjee, learned counsel for the appellants, vehemently argued that subsequent to filing of the suit, the respondent-plaintiff represented by Sri Sukes Ch. Dam agreed at the meeting held on 11. 7. 82 to transfer the suit land to the appellant defendants on payment of balance consideration of Rs. 10,000/-and the said minutes of the meeting has been reduced to writing and marked as Ext. B by the trial Court and that the English rendering of Ext. Dam agreed at the meeting held on 11. 7. 82 to transfer the suit land to the appellant defendants on payment of balance consideration of Rs. 10,000/-and the said minutes of the meeting has been reduced to writing and marked as Ext. B by the trial Court and that the English rendering of Ext. B which was produced before the Court would show that the land has been identified in a sketch map and the area has been mentioned to be 3 gandas of land. Thus, Ext. B can be. treated as a contract in writing from which the terms constituting the transfer can be ascertained with reasonable certainty. It is true that in the said Ext. B identity and the area of the land as well as the balance amount of the price which was to be paid by the appellant-defendants to the respondent-plaintiff is clearly stated, but Ext. B cannot come to the aid of the appellant-defendants for the purpose of defence under Section 53a of the Transfer to property Act because of various reasons. Firstly, the plea that was taken by the appellant-defendants in their written statement filed before the Courts below was that in the year 1978, the respondent-plaintiff agreed to sell the suit land and pursuant to the said contract for sale, the husband of respondent-plaintiff handed over possession of the suit land to the appellant-defendant No. 1 and the appellant-defendant No. 1 after getting possession of the land surrounded the same with fence and since August 78, the appellant-defendants are in possession of the suit land after part performance of the contract of sale. The Court cannot travel beyond the said plea raised by the appellant defendants and accept now a new plea raised by the appellant-defendants that the minutes of meeting held on 11. 7. 82 between the parties or their representatives constituted a contract in writing for sale of the suit land. ( 11 ) MOREOVER, even if the Court accepts this new plea, the defence under Section 53a of the Transfer of Property Act is not available to the appellant defendants because they were in possession of the suit land prior to the said meeting held on 11. 7. 82 in which a compromise between the parties was arrived at. ( 11 ) MOREOVER, even if the Court accepts this new plea, the defence under Section 53a of the Transfer of Property Act is not available to the appellant defendants because they were in possession of the suit land prior to the said meeting held on 11. 7. 82 in which a compromise between the parties was arrived at. In the case of Sardar Govindrao Mahadik and another v. Devi Sahai and others (supra), the supreme Court held in paragraph-39 of the said judgment as reported in AIR 1982 SC 989 : "induction into possession of an immovable property for the first time subsequent to the contract touching the property, may be decisive of the plea of part performance. Mere possession ceases to be of assistance when as in this case the person claiming benefit of part performance is already in possession, prior to the contract and continues to retain possession. " the aforesaid decision makes it clear that where an immovable property under transfer or contract of sale was already in possession prior to contract of sale, mere possession ceases to be of assistance. In paragraph-32 of the aforesaid judgment, the Supreme Court has further held that anything done in furtherance of a contract postulates a pre-existing contract and anything done in pursuance thereof and that acts anterior to the contract or merely incidental to the contract would hardly provide any evidence of part performance. In the present case, the minutes of the meeting held on 11. 7. 82 indicate that the appellant-defendants were already in possession and had put up fencing around the land in their possession" prior to 11. 7. 82. The first appellate Court was, therefore, right in coming to the finding that long before the process of compromise was entered into on 11. 7. 82, the possession of the suit land was handed over to the appellant-defendants and the defence taken by the appellant-defendants under Section 53a of the Transfer of Property Act cannot sustain ( 12 ) THE second substantial question of law which arises for determination in this second Appeal is as to whether the trial Court could under the provisions of Order 17, Rule 1, CPC, direct the appellant-defendants to produce all the witnesses on the same day. On a reading of the judgment of the first appellate court, 1 find that in Paragraph-4 of the said judgment, the first appellate Court has dealt at length the contentions raised by the appellant-defendants that opportunity was not given to them for adducing evidence. From the discussion in Paragraph-4 of the impugned judgment of the first appellate Court it appearss that the suit was filed in the year, 1981, and was fixed for peremptory hearing since 24. 1. 91 and the several dates were fixed for the defendants witnesses but they failed to produce them. On 24. 9. 91 the trial Court ordered that no further time would be granted to the defendants to adduce evidence and the next date was fixed on 23. 11. 91. On that day also the defendants prayed for time. Thereafter, on 22. 1. 92, last chance was given to the defendants fixing the case to 1. 2. 92. Again on 1. 2. 92, the defendants prayed for further time but the Court rejected the prayer and fixed the case to 7. 2. 92 for argument. But the defendants filed Civil Provision before the high Court. The High Court held that there was no error of jurisdiction committed by the trial Court in passing the impugned order. However, in the ends, of justice, the High court directed the trial Court to. give the defendants a last chance. Accordingly, 8. 4. 92 was fixed for adducing evidence but the defendants produced only two witnesses with a prayer that time should be granted to them to adduce more witnesses and this prayer was resisted by the respondent-plaintiffs on the ground that last chance was given to the defendants. The trial Court in the circumstances did not examine the said two witnesses but directed the defendants to produce all the witnesses on 9. 6. 92. On that date also the defendants did not bring all the witnesses and prayed for time for adducing witnesses. As a result, the two witnesses could not be examined and the next date was fixed on 4. 8. 92. But on that date also the defendants prayed for time which was rejected and the case was fixed to 18. 8. 92 for argument. As a result, the two witnesses could not be examined and the next date was fixed on 4. 8. 92. But on that date also the defendants prayed for time which was rejected and the case was fixed to 18. 8. 92 for argument. From the aforesaid facts discussed by the first appellate court in the impugned judgment I am of the opinion the sufficient indulgence was allowed by the trial Court to the defendants to produce their witnesses. ( 13 ) ORDER 17, Rule 1, CPC, states that the Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit. The word "may" in the said provision vests a discretion upon the Court to grant time to the parties and so long as such discretion is judicially exercised by the Court, the exercise of such judicial discretion will not be interfered with by the High Court in a Second Appeal under section 100, CPC. The aforesaid discussion of the first appellate Court in the impugned judgment would show that the trial Court had exercised its discretion judicially and given sufficient time to the defendants to adduce evidence and in the facts and circumstances of the case, the trial Court was right in asking the defendants to produce all their witnesses. ( 14 ) ON a query being put by the Court to Mr. Bhattacharjee, learned counsel for the appellants, as to what he would have established through the witnesses, Mr. Bhattacharjee submitted that the appellant-defendants could have proved through their witnesses about the identity and the area of the land in respect of which the contract of sale was made under ext-A, I am afraid such effort on the part of the appellant-defendants to prove the identity and the area of the land to which Ext. A relates would have served no purpose because on a reading of Section 53a of the Transfer of Property Act as well as the aforesaid judgment of the Supreme Court in the case of nathulal v. Phoolchand (supra) and Sardar govindrao Mahadik v. Devi Sahai (supra), it is clear that the terms necessary to constitute the transfer of property are to be ascertained with reasonable certainty from the contract for transfer of immovable property in writing. Where, therefore, the contract in writing, namely, Ext. A does not itself disclose the terms relating to identity and the area of the land to be sold by the respondent-plaintiff to the appellant-defendants, the case of the appellant-defendants could not be improved, in any manner by oral evidence of witnesses relating to the terms necessary to constitute the transfer. ( 15 ) COMING now to the submission of Mr. Bhattacharjee that the judgment of the first appellate Court does not contain the points for determination and the decision of the first appellate Court on such point for determination as required by Order 41, Rule 30, CPC. 1 find that the points, that were raised before the learned Additional District judge were that sufficient opportunity was not given by the trial Court to the appellant-defendants to produce their witnesses and that the suit was barred by Section 53a of the transfer of Property Act. The point that opportunity was not given by the trial Court to the appellant-defendants to produce their" witnesses has been discussed at length by the first appellate Court in paragraph-4 of the impugned judgment and that the suit was barred by Section 53a of the Transfer of property Act has also been discussed at length in paragraph-5 of the impugned judgment. Thus the first appellate Court has in substance complied with the provisions of Order 41, rule 30, Code of Civil Procedure, and determined the points for decision raised by the appellant-defendants. ( 16 ) ALL the contentions raised by the appellant-defendants, therefore, fail and the second Appeal is dismissed. But considering the entire facts and circumstances of the case, i leave the parties to bear their own costs. Appeal dismissed.