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2007 DIGILAW 855 (PAT)

Ramdai Devi v. Mahendra Kumar Sinha

2007-05-01

REKHA KUMARI

body2007
Judgment 1. This appeal is directed against the judgment dated 18.12.2003 passed by the Addl. District Judge II, Katihar in T.A. No. 1/98 by which he has set aside the judgment passed in T.S. No. 67/87 and has remanded the case to pass a fresh judgment after giving the plaintiff a fresh opportunity of comparing the signature of defendant no.1 on the deed of agreement (Ext. 1) with her admitted signature by another expert. 2. It appears that the plaintiff (respondent no. 1 in the present appeal) had filed a title suit as against the defendant (appellant in the present appeal) for specific performance of contract. The case of the plaintiff is that Ramdai Devi (defendant no. 1) being the only heir of Maya Devi came in possession of the suit land and the house and then she entered into a contract for sale in respect of 2 kathas 10 dhurs alongwith the house standing over plot No,. 535 corresponding to M.S. Plot No. 52, ward No.17 of Katihar municipality with the plaintiff for total consideration of Rs. 15,000.00 and she took advance of Rs. 2,000.00 on 3.6.1307 and executed the Baibayana in favour of the plaintiff. As per agreement defendant no. 1 also agreed to receive the balance consideration of Rs. 13,000.00 by August, 1987 and to execute the sale deed. The possession of the suit premises was also given to the plaintiff. The plaintiff always expressed his wishes to pay the balance money of consideration but defendant no. 1 evaded to receive the same and to execute the sale deed. Hence, the above suit was filed by the plaintiff. 3. Defendant no. 1 in the said suit by filing a written statement denied receiving of any consideration money and executing any Baibayana in favour of the plaintiff. Some portion of the property was also sold to the defendant 2nd party. 4. It further appears from the judgment of T.S. No. 67/87 that since defendant no. 1 had denied the execution of Baibayana deed, hence, her admitted signature and the disputed signature were sent for examination of the expert. The opinion of the expert was received in Court by which it was reported that the admitted signature and the signature on the Baibayana deed did not tally. In other words they were made by two different persons. The plaintiff filed an objection petition but did not examine the expert. The opinion of the expert was received in Court by which it was reported that the admitted signature and the signature on the Baibayana deed did not tally. In other words they were made by two different persons. The plaintiff filed an objection petition but did not examine the expert. The learned lower court accordingly after discussing the evidence adduced on behalf of both the parties came to the finding that the Baibayana deed was not genuine, valid and not executed by defendant no. 1 in favour of the plaintiff. He accordingly dismissed the suit. Being aggrieved by the said judgment the plaintiff filed Title Appeal. 5. The appellate court after discussing the facts and circumstances and the evidence came to the conclusion that the main point for consideration in the appeal was whether the alleged Ext. 1 was duly executed by defendant no. 1 Ramdai Devi in favour of the plaintiff. The lower court decided the issue on the basis of fact that there was no expert report showing that the alleged Baibayana deed was executed by the defendant and an expert report was though received in court the same was not brought on record by the plaintiff and simply an objection petition was filed by the plaintiff. The learned appellate court further mentioned in his judgment that the lower court record showed that it was wrong to say that the plaintiff simply filed objection petition, rather the objection petition challenging the expert report was considered by the learned lower court and by an order it rejected the objection petition. The said order was challenged in a civil revision bearing No. 1934/ 2001 but this Hon ble Court in the said civil revision dismissed the application on withdrawal of the same order at the appellate stage. Therefore, the learned appellate court on the basis of this order as also on the basis of other materials came to the conclusion that the plaintiff should be given an opportunity to get the disputed signature examined by another expert and hence remanded the case setting aside the judgment directing the lower court to consider the evidence afresh after getting the disputed document examined by another expert and pass a fresh judgment and both the parties were also directed to co-operate the court below so that he may take effective steps in disposing of the suit expeditiously. 6. 6. Learned counsel appearing for the appellant assailing the impugned judgment submitted that the learned appellate court made an error of record by writing in the judgement that the objection petition filed by the plaintiff before the lower court (in title suit) was rejected by the Presiding Officer and as against the said order civil revision had been filed. The correct fact is that a petition was filed by the appellant in the appellate court under Order 41 Rule 21 C.P.C. for adducing additional evidence as also to send the disputed signature to the competent expert. Rejoinder and supplementary rejoinder were filed to the said petition and the then 2nd Addl. District Judge by giving a reasoned order rejected the same holding that he does not find it proper to allow the appellant opportunity for additional evidence and for fresh comparison of signature of Ramdai Devi by another expert. He further mentioned in the order that there is no provision of law to fill up the lacuna before the appellate court. Therefore, there was no scope to allow the petition of the appellant for additional evidence. Learned counsel further submitted that as gainst this order passed by the 2nd Addl. District Judge on 14.9.2001, the abovementioned civil revision was filed and the said application for civil revision was dismissed as withdrawn and though a liberty was also sought for by the plaintiff in the civil revision while withdrawing the application to challenge the impugned order at the appellate stage, but the operative portion of the order does not show that such liberty was given rather the operative portion only is to the extent that the application is dismissed as withdrawn. Learned counsel further pointed out that a court of competent jurisdiction i.e. 2nd Addl. District Judge in the present case, when has already rejected a petition by a reasoned order, his successor in the office in the same capacity i.e. 2nd Addl. District Judge can not review the order in course of hearing of the appeal. In fact the matter of re-examination of the disputed document could have been raised at the time of final decision of the appeal. 7. Learned counsel for the appellant thus contended that there was no justification for the appellate court for remanding the case to the lower court for reexamination of the disputed document by another expert. In fact the matter of re-examination of the disputed document could have been raised at the time of final decision of the appeal. 7. Learned counsel for the appellant thus contended that there was no justification for the appellate court for remanding the case to the lower court for reexamination of the disputed document by another expert. Hence, the judgment is bad on this score alone and it was fit and proper for the appellate court to decide the appeal on merit on the basis of the material and evidence already before it. Hence, judgment setting aside the lower court judgment passed in the title suit and remanding the case is not fit to be sustained and the impugned judgment of the appellate court is fit to be set aside. 8. Counsel for the respondent/plaintiff defended the impugned judgment and submitted that the appellate court under Order 41 rule 23A was very much competent to remand the case. He further submitted that the main question involved in the suit and the appeal was whether Ext. 1 (Barbaiyana) was genuine and was executed by defendant no. 1. Since the objection petition was not considered by the trial court, hence, the appellate court was very much justified in remanding the case. He also submitted with regard to the objection taken by the appellant in Ground No. 10 of the Memo of Appeal, that the entire case can be remanded back to the lower court if it is thought fit and proper by the appellate court and the learned appellate court was very much competent to remand the whole case to the trial court. 9. It may be stated that the plaintiff has filed the title suit for specific performance of contract on the basis of a deed of agreement (Ext.1) executed by the defendant. It is also admitted that defendant no. 1 has denied her signature on Ext. 1 and admitted signature of defendant no. 1 were sent to an expert for comparison and the report of the expert is that the signature did not tally. The case of the plaintiff is that he had filed objection against the report of the expert which was rejected by the lower court and against that order he had filed revision in the court and the revision was permitted to be withdrawn with the liberty to place this point in appeal. 10. The case of the plaintiff is that he had filed objection against the report of the expert which was rejected by the lower court and against that order he had filed revision in the court and the revision was permitted to be withdrawn with the liberty to place this point in appeal. 10. The contention of the learned counsel for defendant no. 1 on the other hand, is that the objection petition was not moved and that in appeal the plaintiff had filed a petition for adducing further evidence and for comparison of the signature by another expert and the said petition was rejected by 2nd Addl. Sessions Judge in appeal and as against his order a revision was filed which was dismissed as withdrawn and no liberty was given to the plaintiff to agitate the matter in appeal. To remove any confusion the records of civil revision was called for and the perusal of the record it appears that actually the order of the 2nd Addl. District Judge passed in appeal was challenged and it was dismissed as withdrawn without any liberty to press the matter again before the appellate court. 11. So when the report of the hand writing expert was against the case of the plaintiff and the plaintiff though filed objection against the report did not press the objection and in the appeal a prayer was made by the plaintiff to adduce further evidence and to get the signatures compared by another expert and the same was rejected in appeal itself, and against that order the plaintiff preferred civil revision and the same was dismissed by the High Court and the matter was finally settled. I agree with the learned counsel for the appellant that there was no legal jurisdiction to remand the case to the lower court for allowing the plaintiff to get the signatures compared by another expert. As the entire evidence was before the appellate court, it could not also direct the lower court to examine the correctness of Ext. 1 series as has been done by it. 12. In the result, this appeal is allowed and the impugned judgment is set aside. The lower appellate court is directed to hear the matter and pass a fresh order on the basis of evidence available on the record.