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2002 DIGILAW 721 (PAT)

Nathuni Sah v. Kashi Nath Mishra

2002-07-10

ASHOK KUMAR VERMA

body2002
Judgment Ashok Kumar Verma, J. 1. The plaintiff appellant has filed this appeal against the judgment and decree passed in Title Appeal No. 49 of 1981 by the Additional District Judge V, Arrah, whereby the learned Additional District Judge had allowed the Title Appeal and set aside the judgment and decree passed by the Subordinate Judge, Buxar in Title Suit No. 65 of 1977. The learned Additional District Judge has also ordered that the plaintiff is entitled to recover Rs. 6,000/-with Interest thereon from the defendant No. 5. The plaintiff appellant had filed the Title Suit for Specific Performance of Contract and in the alternative for recovery of a sum of Rs. 6,000/-from the defendant 2nd party and Rs. 1000/- from defendant first party, which had been decreed by the learned Subordinate Judge with a direction to defendant No. 1 to execute the sale deed in respect of the disputed and in favour of the plaintiff. 2. In short the case of the plaintiff appellant is that Raghunath Mishra had died in the state of jointness with defendant first party and defendant first party came in possession over the entire property. Raghunath Mishra had executed a registered Rehan deed for consideration of Rs. 6000/- in favour of defendant second party in respect of the land in suit who came in possession over it as Rehandar. The defendant No. 1, who is karta of the family of defendant first party requested the plaintiff for payment of Rs. 2000/- and agreed to sell the land in suit to him for consideration of Rs. 8,000/- and on that land Rs.6,000/- had been taken earlier by him at the time of Rehan. The defendant No. 1 received Rs. 1000/- from the plaintiff and promised to execute the sale deed within three months and it was also agreed that the plaintiff will refund Rs. 6,000/- of the Rehan money. The plaintiff paid the amount of Rs. 6,000/-the Rehan money on 31.5.1974 to Satya Narain Rai (defendant No. 6) and Satya Narain Rai made an endorsement in respect of it on the back of the Rehan deed and returned the Rehan deed to the plaintiff. Inspite of request made by the plaintiff, the defendant first party did not execute the sale deed and did not receive the balance amount of Rs. 1000/-. The plaintiff was always ready to pay the amount of Rs. Inspite of request made by the plaintiff, the defendant first party did not execute the sale deed and did not receive the balance amount of Rs. 1000/-. The plaintiff was always ready to pay the amount of Rs. 1000/- to the defendant No. 1 and for getting the sale deed executed. 3. A written statement had been filed on behalf of defendant Nos. 3 and 4 and according to them Kashi Nath Mishra, defendant No. 1 was of week mind and half mad from childhood. In view of Section 12 of the Money Lenders Act, the defendant second party left the land under Rehan and these defendants came in possession over it. During consolidation of holdings these defendants got another land in place of the said land and these defendants are coming in possession over it. Further, according to these defendants, Raghunath Mishra was the karta of the family during his life time and defendant No. 1 was of week mind during his (Raghunath Mishra) life time and these defendants used to manage their karobar with the help of others. The defendants had no necessity of Rs. 2000/- and defendant No. 1 had not agreed to sell the land for Rs. 8,000/- and had not requested for the refund of the Rehan money and he had also not received Rs. 1000/- as advance from the plaintiff for selling the land. The plaintiff had no capacity to purchase the land and he had set up a group of Gundas and he had set up defendant second party to file this false case to grab the land. 4. The substantial question of law, which had been formulated in this second appeal is whether the Court had rightly interpreted the Order VIII, Rule 5 of the C.P.C. 5. 4. The substantial question of law, which had been formulated in this second appeal is whether the Court had rightly interpreted the Order VIII, Rule 5 of the C.P.C. 5. It was argued by the learned lawyer for the appellant that the learned Additional District Judge has held in his judgment that the principle of admission by nontraverse embodied in Order VIII, Rule 5 of the C.P.C. applied only to cases where defendant has put in a written statement and mere commission of file written statement does not amount to an admission of facts stated in the plaint and the defendant who does not file written statement is not debarred from giving evidence which traverses the allegation made in the plaint, it was also submitted by him that by the amendment of the C.P.C. in the year 1976, Rule 5(2) in Order VIII, was added which had not been provided in earlier C.P.C. and Rule 5(2) in Order VIII, of C.P.C. which is new addition in Order VIII, Rule 5 has been provided to make the provision of law more clear. A plain reading of Order VIII, Rule 5 of the C.P.C. which was prior to the amendment of 1"979 shows that there was no provision of Order VIII, Rule 5(2). According to Order VIII, Rule 5 of the C.P.C. every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability, provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. The learned Additional District Judge has mentioned in his judgment passed in Title Appeal No. 49 of 1981, that a mere omission to file written statement does not amount to an admission of facts stated in the plaint.Order VIII, Rule 5(2) of the C.P.C. runs as below: Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. 6. 6. It was submitted by the learned lawyer for the appellant that there is concurrent findings of both the Courts below that defendant No. 1 was not of unsound mind. 7. The learned Subordinate Judge has held in his judgment passed in Title Suit No. 66 of 1977 that defendant No. 1 Kashinath Mishra is not suffering from any such mental disease from which he could be said to be unable from understanding. The learned Additional District Judge has held in his judgment passed in Title Appeal No. 49 of 1981 that the facts, circumstances and evidence brought on record could not establish that the defendant No. 1 was mad and mentally unfit and the findings of the Court below on this point could not be assailed and it was rightly held that he was same and mentally fit. It has been held by the Supreme Court in the case of Kendiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors. , that concurrent findings of fact, however, erroneous, cannot be disturbed under Section 100 of the C.P.C. in Second Appeal, Ext. 2 is endorsement of Satya Narain Rai (defendant No. 5) on the Rehan deed for receipt of Rs. 6,000/-from Nathuni Sah. In the Court of learned Subordinate Judge Kashi Nath Mishra, defendant No. 1 had been examined as a witness as D.W. 1 Defendant No. 1 had not filed written statement in the Title Suit which fact has also been mentioned in the judgment of the learned Subordinate Judge. The learned Additional District Judge has mentioned in his judgment that though the plaintiff could not be held to have redeemed the mortgage by making payment of a sum of Rs. 6000/- to defendant No. 5 at the instance of defendant No, 1 he made payment of the aforesaid amount vide Ext. 2 to defendant No. 5 who did not care to file written statement nor did he come to depose. The learned Additional District Judge has held that the plaintiff is entitled to recover the amount of Rs. 6000/- from defendant No. 5 and he shall also be entitled to interest on the aforesaid amount at the rate of 10% per annum. 8. The learned Additional District Judge has held that the plaintiff is entitled to recover the amount of Rs. 6000/- from defendant No. 5 and he shall also be entitled to interest on the aforesaid amount at the rate of 10% per annum. 8. In view of the facts and circumstances of the case and in view of the provision of taw, the Court below had not rightly interpreted Order VIII, Rule 5 of the C.P.C. The judgment and decree passed by the learned Additional District Judge is not tenable in law. Therefore, this appeal is allowed and the judgment and decree passed by the learned Additional District Judge is set aside. The case is remitted to the learned Additional District Judge to dispose of the Title Appeal in accordance with law after giving opportunity of hearing to both the parties. Both the parties are directed to appear in the Court of the learned Additional District Judge within three months from today.