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2001 DIGILAW 726 (PAT)

Ram Charitra Mahto v. Satya Narain Sahu

2001-08-10

S.K.KATRIAR

body2001
Judgment S.K.Katriar, J. 1. The plaintiff is the appellant against a judgment of reversal. This appeal is directed against the judgment and decree dated 9.6.98, passed by the learned 7th Addl. District Judge, Begusarai, in M.T.A. No. 17 of 1991 (Satya Narain Sahu V/s. Ram Charitra Mahto), whereby the defendants appeal was allowed, and the judgment and decree dated 18.7.91, passed by the learned Munsif, second court, Begusarai, in Title Suit No. 58 of 1989 (Ram Charitra Mahto V/s. Satya Narain Sahu), has been set aside. The learned trial court had decreed the suit for specific performance of contract. We shall go by the description of the parties obtaining in the plaint. 2. The plaintiff (the appellant herein) had instituted the suit for specific performance of contract with the defendant (respondent). The plaintiffs case as stated in the plaint is that the defendant (respondent herein) had executed a Mahadnama (Ext.5), being an agreement for sale, for sale of a plot of land, bearing Khesra nos. 2696 and 2697, appertaining to Khata no. 2442, Tauzi no. 826, covering an area of 18 dhurs and 5 dhurkis with a house situate thereon for a total consideration money of Rs. 8,000/-. The plaintiff had handed over a sum of Rs. 7,116/- to the defendant towards part payment of the consideration money at the time of execution of the agreement for sale, and the balance sum of Rs. 884/- was to be handed over at the time of registration of the sale deed which had to be executed on or before 31.3.89. The plaintiffs further case is that he thereafter pressed the defendant to execute the sale deed which he always avoided. In fact, the plaintiff was once called by the defendant to the registration office for execution of the sale deed but he (the defendant) had failed to turn up. The plaintiff is still willing to perform his part of the contract and pay balance of the consideration money. 3. On the other hand, the defendants case, as stated in the written statement, is that he had never executed the Mahadnama (Ext.5) in question. It does not bear his thumb impression or his signature. His further case is that the parties were earlier partners in a business of broken glasses. 3. On the other hand, the defendants case, as stated in the written statement, is that he had never executed the Mahadnama (Ext.5) in question. It does not bear his thumb impression or his signature. His further case is that the parties were earlier partners in a business of broken glasses. Differences arose between the parties during the course of business and a Panchayati was held in which the defendant had handed over to the Panches a blank piece of paper bearing his left thumb impression which he apprehends has been converted into a Mahadnama (Ext.5). The defendants further case is that the plaintiff has never shown willingness to perform his part of the contract. Therefore, according to the written statement, the suit is hit by the provisions of section 16(c) of the Specific Relief Act (hereinafter referred to as the Act). 4. The trial court framed the following issues for adjudication: (i) Is the suit as framed maintainable? (ii) Has the plaintiff any cause of action or right to sue? (iii) Is the suit barred by law of limitation, principles of estoppel, waiver and acquiescence? (iv) Is the execution of Mahadnama executed by defendant is genuine? (v) Is the plaintiff entitled to a decree as prayed for? (vi) To what relief or reliefs, if any, the plaintiff is entitled to? The trial court found that the Mahadnama (Ext.5) is a valid and genuine document. The plaintiff has been willing to perform his part of the contract and was always willing to pay the balance of the consideration money. The suit was decreed. Aggrieved by this judgment, the defendant appealed which has been allowed by the impugned judgment and that of the trial court has been set aside. The learned court of appeal below has held that the plaintiff was not willing to perform his part of the contract. Hence the present appeal at the instance of the plaintiff. 5. While assailing the validity of the impugned judgment, learned counsel for the plaintiff (appellant) submits that this appeal raises a substantial question of law for consideration, namely, the lower appellate court has recorded perverse finding of facts to the effect that the suit is hit by the provisions of section 16(c) of the Act. 5. While assailing the validity of the impugned judgment, learned counsel for the plaintiff (appellant) submits that this appeal raises a substantial question of law for consideration, namely, the lower appellate court has recorded perverse finding of facts to the effect that the suit is hit by the provisions of section 16(c) of the Act. He relies on the judgment of the Supreme Court reported in AIR 1996 SC 2510 (para 5) (Sukhbir Singh V/s. Brij Pal Singh), and the judgment of the Supreme Court reported in AIR 2000 SC 2408 (Motiial Jain V/s. Ramdasi Devi). He submits that the trial court did frame an issue to adjudicate the issue whether or not execution of the Mahadnama by defendant is genuine and valid. 6. On the other hand, learned counsel for the defendant (respondent herein) has submitted in opposition that the issue is concluded by findings of facts. The learned court of appeal below has held that the plaintiff was not ready and willing to perform his part of the contract and, therefore, the suit is hit by the provisions of section 16(c) of the Act. He next submits that the Mahadnama is not a valid and genuine document as it does not bear his signature or his thumb impression. In any case, the blank piece of paper bearing his ieft thumb impression given to the Ranches seems to have been handed over to the plaintiff who have perhaps converted the same into a Mahadnama. He further states that he had recorded only one thumb impression on the blank piece of paper and the other one has perhaps been supplied by the plaintiff. 7. It thus appears to me that the following substantial questions of law arise for the consideration of this court in this appeal: (i) Whether or not the learned court of appeal below, in abdication of his duties and functions as the last court of facts, recorded perverse findings of facts? (ii) Whether or not defendant did execute the Mahadnama (Ext.B), and the same is a valid and genuine document? (iii) Whether or not the plaintiff has made the necessary averments in the plaint in terms of section 16(c) of the Specific Relief Act, and has proved the same by cogent and reliable evidence? 8. (ii) Whether or not defendant did execute the Mahadnama (Ext.B), and the same is a valid and genuine document? (iii) Whether or not the plaintiff has made the necessary averments in the plaint in terms of section 16(c) of the Specific Relief Act, and has proved the same by cogent and reliable evidence? 8. I would first deal with the question whether or not the Mahadnama was executed by the defendant, and whether or not the same is a valid and genuine document. As is manifest from the issues framed by the trial court and set out in paragraph 4 hereinabove, issue no. (iv) formulated by the trial court was whether or not the Mahadnama executed by the defendant is a genuine document. The defendant in his written statement took [he stand that the Mahadnama is not a valid and genuine document for the reasons indicated in paragraph 6 hereinabove. Therefore, the onus was on the defendant to prove that Mahadnama, (Ext. 5) did not bear the thumb impression or the signature of the defendant. I find from the deposition of D.W.4, who is the defendant himself, that he has admitted his signature on the Mahadnama in paragraph 4 of his deposition which is set out hereinbelow for the facility of quick reference: Secondly, learned counsel for the plaintiff has rightly invited my attention to the order dated 21.3.91 of the trial court, whereby he had allowed the defendants application for examination of the handwriting expert and he was directed to deposit the cost of the same. He had directed the disputed handwriting including the signature to be sent to an expert along with specimen writing of the defendant who was also directed to deposit the cost for the same. The defendant deposited the cost after several adjournments on 3.5.91. As is manifest from the orders dated 3.5.91, 10.5.91, 16.5.91, 31.5.91, 10.6.91 and the orders onwards that the defendant never supplied to the court his admitted handwriting inspite of repeated opportunities granted to him. Therefore, the Mahadnama could not be sent to the handwriting expert. Further more, as is manifest from the deposition of P.W.4 (paragraph 2), and the deposition of P.W.8 (paragraph 8), the Mahadnama in question had in fact been executed by the defendant. The said portions of the deposition are extracted hereinbelow. Secondly, according to the defendant, one thumb impression on the Mahadnama is admittedly his. Further more, as is manifest from the deposition of P.W.4 (paragraph 2), and the deposition of P.W.8 (paragraph 8), the Mahadnama in question had in fact been executed by the defendant. The said portions of the deposition are extracted hereinbelow. Secondly, according to the defendant, one thumb impression on the Mahadnama is admittedly his. I have thus no manner of doubt that the defendant did execute the Mahadnama (Ext.5), and denial of the same in the written statement was a mere ploy to defeat the plaintiffs case. 9. This takes me on to another important aspect of the matter, namely, whether or not the suit is hit by the provisions of section 16(c) of the Act. The plaintiff has stated in paragraphs 4 to 9 of the plaint that the plaintiff has always been willing to perform his part of the contract, and always ready and willing to handover the balance sum of consideration money of Rs. 884/-. Paragraphs 4 to 9 of the plaint are set out hereinbelow for the facility of quick reference : "4. That the plff. after the execution of the Mahadnama by the defdt., several times asked the defdt. to execute the sale deed in favour of the plff. and to receive Rs. 884/- the remaining amount of consideration money but the defdt. on some pretext or the other put off the execution of the sale deed. The plff. was and is always willing to perform his part of the agreement. 5. That the plff. ultimately sent a notice through advocate on 10.3.1989 to the defdt. by registered post with acknowledgement due requesting him to execute the sale deed for the land of Schedule I of the piaint in favour of the plff. and to receive the balance consideration amount of Rs. 884/- and the plff. was always ready to get the sale deed executed from the defdt. to pay the remaining amount of Rs. 884/-. 6. That the notice sent through the advocate was refused by the defdt. and did not respond. Thereafter the plff. personally approached the defdt. to come to Teghra Registry office and to execute the sale deed and to receive the balance consideration amount of Rs. 884/- from the plff. and the defdt. promised that he would come on 31.3.1989 and said the plff. to remain present at Teghra. 7. That the plff. and did not respond. Thereafter the plff. personally approached the defdt. to come to Teghra Registry office and to execute the sale deed and to receive the balance consideration amount of Rs. 884/- from the plff. and the defdt. promised that he would come on 31.3.1989 and said the plff. to remain present at Teghra. 7. That the plff. on 31.3.1989 was ready with money, the balance consideration amount of Rs. 884/- and for other expenses to be incurred in execution of the sale deed and waited for the defdt. but the defdt. did not turn up inspite of all efforts made by the plff. the defdt. failed to execute the sale deed in favour cf the plff. which led to the filing of the present suit. 8. That the plff. on his part has always been ready to perform the agreement by getting the sale deed executed and to pay the balance amount of Rs. 884/- to the defdt. but the defdt. knowingly and deliberately failed to perform his part of the agreement and execute the sale deed and the plff. has got right to get the sale deed executed by the defdt. for the land mentioned in Schedule I on payment of Rs. 884/- and for which the present suit is filed. 9. That the cause of action arose on 30.8.1988 when agreement for sale arrived at between the plff. and defdt. and the defdt. notice and on several dates when the plff. personally approached the defdt, to execute the sale deed and lastly on 31.3.1989 when inspite of promise made by the defdt. to execute the sale deed on the date but deliberately failed to execute the sale deed in favour of the plff. within the jurisdiction of the court." Ext. 3 is the notice sent by the plaintiff to the defendant informing him that he was willing to pay the balance of the consideration money and that the defendant should execute registered deed of sale without further delay. The defendant had refused to receive the same and it had, therefore, been returned to the plaintiff. This document also supports the plaintiffs case. In fact, the defendant had once called the plaintiff to the registration office but he (the defendant) did not turn up. P.W.6 is Ashok Kumar Mahto and is a co-villager. The defendant had refused to receive the same and it had, therefore, been returned to the plaintiff. This document also supports the plaintiffs case. In fact, the defendant had once called the plaintiff to the registration office but he (the defendant) did not turn up. P.W.6 is Ashok Kumar Mahto and is a co-villager. He has stated in paragraph-1 of his deposition that the defendant had called the plaintiff to the concerned registration office for execution of the document but himself failed to turn up. P.W.8 is the plaintiff himself and has stated as follows in paragraphs 3 and 4 of his deposition: 10. It is thus manifest that the plaintiff was always ready and willing to perform his part of the contract. in other words, he was always ready and willing to handover the balance of the consideration money of Rs. 884/- at the time of registration of the document. The defendant always purposely avoided to execute the document. The learned court of appeal below does not seem to have read the plaint at all nor has he discussed the evidence of the parties at all on this question. Paragraph 12 of the impugned judgment deals with this question, being the whole of the discussion therein on this issue, is set out hereinbelow for the facility of quick reference: "It appears that the suit is for specific performance of contract, and in a case of specific performance of contract the plaintiff required to establish that he was since the date of contract continuously ready and willing to perform his part of contract continuously between the contract and the date of hearing of the suit. Plaintiff is required to plead in term with section 16(c) of Specific Relief Act, but during trial plaintiff failed to establish his case, plaintiff did not even plead in his plaint in term with section 16(c) of Specific Relief Act, nor proved his readiness and willingness to perform his part of contract continuously between the contract and date of hearing of the suit." (emphasis added). As is manifest from paragraphs 4 to 9 of the plaint and set out hereinabove, the plaintiff did plead clearly and unambiguously that he was always ready and willing to perform his part of the contract. He has recorded the perverse finding that the plaintiff has failed to prove the same without considering at all the evidence on record. As is manifest from paragraphs 4 to 9 of the plaint and set out hereinabove, the plaintiff did plead clearly and unambiguously that he was always ready and willing to perform his part of the contract. He has recorded the perverse finding that the plaintiff has failed to prove the same without considering at all the evidence on record. I, therefore, reach the conclusion that the plaintiff did plead that he was always ready and willing to perform his part of the contract, and has proved the same by cogent and reliable evidence. 11. The High Court exercises powers of second appeal under section 100 C.P.C. The mode and manner of exercise of this power after the 1976 amendment is well settled by a long fine of judgments of high authority. The findings of facts recorded by the first appellate court, being the last court of facts, normally binds the High Court in second appellate jurisdiction. The circumstances under which the High Court in exercise of its second appellate jurisdiction under section 100 CPC would not be justified in interfering with the findings of facts recorded by the court of appeal below is to be found in the judgment of the Supreme Court reported in (1999)6 SCC 343 (Karnataka Board of Wakf V/s. Anjuman-E-Ismail Madris-UN-Niswan). The present case is obviously not covered by this judgment of the Supreme Court. 12. However, the power of the High Court in second appellate jurisdiction to interfere with the findings of facts recorded by the first appellate court is equally well settled. Reference in this connection may be made to the judgment of the Supreme Court reported in (1992) 1 SCC 647 (Jagdish Singh V/s. Natthu Singh), paragraph 10 of which is relevant in the present context and is set out hereinbelow for the facility of quick reference: "10. In our opinion, the High Court was right in its view. The notices must be presumed to have been served as contemplated by Section 27 of the General Clauses Act. In our opinion, the High Court was right in its view. The notices must be presumed to have been served as contemplated by Section 27 of the General Clauses Act. As to the jurisdiction of the High Court to reappreciate evidence in a second appeal it is to be observed that where the findings by the court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings....." The aforesaid judgment has been quoted with approval by the Supreme Court in its judgment reported in (2000)1 SCC 434 = AIR 2000 SC 426 (Ishwar Dass Jain V/s. Sohan Lal), paragraphs 10 to 12 of which are relevant in the present context and are set out herein- below for the facility of quick reference: "10. Now under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. 11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to Section 100 CPC after the 1976 Amendment. In Dilbagrai Punjabi vs. Sharad Chandra while dealing with a second appeal of 1978 decided by the Madhya Pradesh High Court on 20.8.1981, L.M.Sharma, J. (as he then was) observed that : (SCC pp. 712-13, para 5) "The court (the first appellate court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case." In that case, an admission by the defendant tenant in the reply notice in regard to the plaintiffs title and the description of the plaintiff as "owner" of the property signed by the defendant were not considered by the first appellate court while holding that the plaintiff had not proved his title. The High Court interfered with the finding on the ground of non- consideration of vital evidence and this Court affirmed the said decision. That was upheld. In Jagdish Singh V/s. Natthu Singh with reference to a Second Appeal of 1978 disposed of on 5.4.1991, Venkatachaliah, J. (as he then was) held: (SCC p. 652, para 10) "........where the findings by the court of facts is vitiated by non- consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings." Again in Sundra Naicka Vadiyar vs. Ramaswami Ayyar it was held that where certain vital documents for deciding the question of possession were ignored- such as a compromise, an order of the Revenue Courtreliance on oral evidence was unjustified. In yet another case in Mehrunnisa V/s. Visham Kumari arising out of Second Appeal of 1988 decided on 15.1.1996, it was held by Venkataswami, J. that a finding arrived at by ignoring the second notice issued by the landlady and without noticing that the suit was not based on earlier notices, was vitiated and the High Court could interfere with such a finding. This was in second appeal of 1988 decided on 15.1.1996. 12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In Sri Chand Gupta vs. Gulzar Singh it was held that the High Court was right in interfering in second appeal where the lower appellate court relied upon an admission of a third party treating it as binding on the defendant. The admission was inadmissible as against the defendant. This was also a second appeal of 1981 disposed on on 24.9.1985." (emphasis added). The admission was inadmissible as against the defendant. This was also a second appeal of 1981 disposed on on 24.9.1985." (emphasis added). The present appeal is against a judgment of reversal and the mode and manner in which the learned court of appeal below, being the last court of facts, has discharged its essential duties and functions have been discussed hereinabove. 13. The duties and functions of the first appellate court, being the last court of facts, are equally well settled by a long line of judgments of high authority. The same has been dealt with by the Supreme Court in its aforesaid judgments. The court of appeal below, being the last court of facts, is duty bound to reappraise the entire materials and evidence on record and come to independent conclusions, unmindful of the judgment of the trial court. The authorities further lay down that in case of reversal of the judgment of the trial court, the first appellate court should consider the reasonings of the trial court. A learned single Judge of this Court in his judgment reported in 1985 Patna, page 214 (Narain Singh V/s. Kanta Singh), has held as follows in paragraphs 18 and 19 of the judgment: "18. It is well-settled that if a finding of a fact is recorded without any discussion of the evidence, it is no judgment at all. The lower appellate Court is the final Court of fact and a very important duty is cast upon it. It is for this Court to decide final questions of fact on which the disposal of the suit might depend. On a perusal of the judgment of the lower appellate Court, it must appear that it has made an honest endeavour to make a proper appraisement of the merit of the case put forward by the parties. In case of reversal, it is all the more important for the Court of appeal below to consider the evidence and also the reasonings of the trial Court and only thereafter to give its own reasons for not agreeing with the findings of the trial Court. A perusal of the judgment must show that the lower appellate Court has applied its own mind independently to the evidences on the record. 19. A perusal of the judgment must show that the lower appellate Court has applied its own mind independently to the evidences on the record. 19. It is also welt-settled that every non-consideration of the reasons given by the trial Court in a judgment of reversal is not enough for interference by the High Court sitting under S. 100 of the C.P.C. What has to be seen is whether the iower appellate Court has failed to consider the most material evidence and if it has, then in that case finding is not binding on the High Court. If the finding arrived at by the lower appellate Court is sustainable from the reasonings given by the lower appellate Court, in that case finding cannot be interfered with. The judgment of a learned single Judge of the Punjab and Haryana High Court in his judgment reported in AIR 1996 Punjab & Haryana page 120 (Joginder Singh V/s. Nidhan Singh), has held as follows in paragraphs 21 and 49 of the judgment: "21. It was incumbent upon the final Court of fact, i.e. the Lower Appellate Court; and particularly when the judgment and decree of the trial Court was reversed, to meet the reasoning of the trial Court while decreeing the suit and to indicate its own reasons for arriving at a contrary conclusion. It is the duty of the Lower Appellate Court to discuss the entire evidence afresh, take notice of the grounds taken and the reasons advanced by the trial Court to reach its decision. 49. There is no quarrel with the proposition of law laid down in these authorities but they are not applicable to the facts of the present case, as it has been observed by me in the preceding paragraphs that the lower Appellate Court, in arriving at its conclusion while reversing the judgment and decree of the trial Court, had ignored and misread the important evidence on record and has failed to refer to the important pieces of evidence and has also failed to give any sound reason to rebut the grounds taken and the reasons advanced by the trial Court for decreeing the suit of the plaintiff- appellants for specific performance; and has, rather, failed to take stock of the entire material on record and has come to its conclusion while reversing the judgment of the trial Court which is not supportable from the evidence on record. For this decision of mine, I am fully supported by the judgments referred hereunder: (i) Dilbagrai Punjabi V/s. Sharad Chandra, AIR 1988 SC 1858 , wherein it has been held that where in a suit, the iower Courts had without considering any part of the evidence, oral or documentary, come to finding of a fact, the High Court will be right in reversing the finding. The Court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises of a magnitude gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. (ii) in Jagdish Singh V/s. Nathu Singh AIR 1992 SC 1604 , it has been held as under:- "As to the jurisdiction of the High Court to re-appreciate the evidence in a second appeal, it has to be observed that where the finding by the Court of facts is vitiated by non-consideration of relevant evidence, or by an essentially erroneous approach of the matter, the High Court is not precluded from recording proper findings." (iii) In Smt. Sonawati V/s. Sri Ram, AIR 1968 SC 466 , it has been held that where the lower Appellate Court, in arriving at its conclusion ignores important evidence on record, its conclusion is not binding in second appeal." The impugned judgment amounts to a complete abdication of essential duties and functions as the last court of facts. The findings of facts recorded by the court below is perverse on account of total non-consideration of the materials on record which on consideration has led to a different conclusion. He has only recorded the conclusion, and that too on a complete misreading of the plaint. 14 The finding of the learned court of appeal below is thus unsustainable in law, and this Court is forced to reappreciate the entire evidence on record and come to its own conclusions. The matter could have been remitted back to the court of appeal below for a fresh appreciation of the evidence and judgment in accordance with law. But I have chosen to undertake the task myself to cut short a seemingly interminable litigation to save the parties from a remand and the consequent harassment. The matter could have been remitted back to the court of appeal below for a fresh appreciation of the evidence and judgment in accordance with law. But I have chosen to undertake the task myself to cut short a seemingly interminable litigation to save the parties from a remand and the consequent harassment. I am in this connection supported by the judgment of a Division Bench Judgment of this Court reported in AIR 1942 Patna 188 (Kuseshwar Jha V/s. Uma Kant), as well as the judgment of a learned single Judge of the Bombay High Court reported in AIR 1988 Bombay page 22 (para 8) (Dagadu V/s. Vasant). 15. In the result, this appeal is allowed with costs through-out. The impugned judgment dated 9.6.98, passed by the learned 7th Addl. District Judge, Begusarai, in M.T.A. No. 17/91, is hereby set aside. The defendant is hereby directed to execute the sale deed in question within a period of three months from today and the plaintiff shall handover the balance of the consideration money amounting to Rs. 884/- before the Registration Officer at the time of registration of the document, failing which the trial court shall execute the sale deed in question within a period of three months thereafter.