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2008 DIGILAW 2379 (RAJ)

LRs of Sukh Ram v. Jagdish

2008-10-22

DINESH MAHESHWARI

body2008
JUDGMENT 1. - Though listed for admission, with the consent and at the request of the learned counsel for the parties, the matter has been heard finally. 2. This appeal is directed against the judgment and decree dated 24.05.2008 as passed by the Additional District Judge (Fast Track) No.1,Hanumangarh in Civil Suit No.350/2005. 3. The suit aforesaid was filed by the plaintiffs, Jagdish, Om Prakash, and Sumitra Devi (respondents Nos.1 to 3 herein) against Sukh Ram (since deceased and represented by his legal representatives - appellants Nos.1/1 to 1/5 herein) seeking specific performance with the submissions that under the agreement dated 10.04.2003, the defendant Sukh Ram agreed to sell his agricultural land at Chak 25 LLW as described in the plaint, in all measuring about 4.554 hectares, at a price of Rs.40,000/- per bigha. According to the plaintiffs, the agreement was executed on 10.04.2003; was registered with the Sub-Registrar, Hanumangarh; an amount of Rs.4,00,000/- was paid by them against the said agreement to the defendant; and 15.05.2005 was the date fixed for execution of the sale document, delivery of possession of the land, and for payment of the remaining sale consideration. The plaintiffs alleged that they were always ready and willing to have the agreement performed; that on 05.05.2005 a notice was also served on the defendant by registered post; that they attended the office of Sub-Registrar, Hanumangarh for the purpose of execution of the document on 16.05.2005 (15.05.2005 being a holiday) and submitted an application to that effect to the Sub-Registrar. The plaintiffs further alleged that the defendant did not attend the office of the Sub- Registrar and when called upon to perform the agreement, avoided to do so and did not even respond to the notice dated 11.07.2005 served in that regard. The plaintiffs further alleged that the defendant was trying to avoid the performance and after execution of the agreement, in a mala fide manner, placed the land in question in mortgage with the State Bank of Patiala, Branch Hanumangarh; and asserted their entitlement to obtain the directions against the defendant that after getting the mortgage redeemed, the sale document be executed in their favour. 4. 4. The defendant in his written statement denied the existence of agreement itself and rather alleged that an amount of Rs.1,60,000/- was taken on loan from Krishan Ram Patwari, husband of the plaintiff No.3 and brother of the plaintiffs Nos.1 and 2 that was repaid after placing the land in mortgage with the State Bank of Patiala in the year 2004. The defendant asserted that the land in question was the only source of his livelihood and the agreement, wherein the said Krishan Ram Patwari stood in the capacity of a witness, was false and fabricated. Various other submissions were made particularly to emphasis that there was no likelihood of the parties entering into such kind of an agreement. The plaintiffs filed a rejoinder refuting the allegation of the defendant. 5. The defendant expired during the pendency of the suit; and his legal representatives, the present appellants, were substituted as defendants. 6. On the pleadings of the parties, on 08.03.2007, the learned Trial Court framed the following issues for determination of the questions involved in the matter:- (1) vk;k izfroknh lq[kjke us oknhx.k ds lkFkk fooknxzLr d`f"k Hkwfe fodz; djus dk djkj fnukad 10-4-2003 dks lkbZ isVs pkj yk[k :i;s izkIr dj oknhx.k ds gd esa bdjkjukek rgjhj o rdehy djokdj iathc) djok;k\ oknhx.k (2) vk;k oknhx.k bdjkukek fnukafdr 10-4-2003 dh vius fgLls dh 'krksZa dh ikyuk djus ds fy, lnSo rS;kj ,oa rRij jgs Fks o gS\ oknhx.k (3) vk;k oknhx.k ds lkFk bdjkjukek djus ds mijkar fooknxzLr d`f"k Hkwfe dks izfroknhx.k }kjk LVsV cSad vkWQ ifV;kyk 'kk[kk guqekux<+ ds ;gka jgu j[kk\ oknhx.k (4) vk;k oknhx.k 'ks"k izfrQy jkf'k 2]92]000@& :i;s izfroknhx.k dks vnk dj cSad ds gd esa fd;k jgu fujLr djok dj vius gd esa c;ukek iathc) djokus ds vf/kdkjh gS\ oknhx.k (5) vk;k oknhx.k] izfroknhx.k ls fooknxzLr d`f"k Hkwfe dk dCtk izkIr djus ds vf/kdkjh gS\ oknhx.k (6) vk;k oknhx.k] izfroknhx.k ds fo:) LFkkbZ fu"ks/kkKk bl vk'k; dh tkjh djokus ds vf/kdkjh gS fd izfroknhx.k fooknxzLr d`f"k Hkwfe dks fdlh izdkj ls jgu] c; vFkok fdlh rjhds ls eqarfdy ugha djs o uk gh vf/kHkkfjr djs\ oknhx.k (7) vk;k oknhx.k] izfroknhx.k ls c;ukek gksuk lEHko u gksus dh lwjr esa nh x;h jkf'k :i;s pkj yk[k o gtkZ izkIr djus ds vf/kdkjh gSA ;fn gka rks fdruk\ oknhx.k (8) vuqrks"kA 7. It appears from the record of the suit proceedings that the plaintiffs evidence was concluded on 02.11.2007 and the case was fixed for the defendants' evidence on 27.11.2007. 8. On this date, the defendants prayed for and were granted time to lead evidence and the matter was adjourned to 14.12.2007. On 14.12.2007 and so also on 25.01.2008, the matter was adjourned for the Presiding Officer being on leave. Then, on 22.02.2008, another opportunity was extended to the defendants to adduce their evidence with the stipulation that upon failure to do so on the next date, their evidence would stand closed. Pursuant to the said order, and when no witness was present on behalf of the defendants on 05.03.2008, the learned Trial Court proceeded to close down their evidence and thereafter proceeded to decree the suit on 24.05.2008. Hence, this appeal. 9. Though various submissions have been made in this appeal challenging the findings on the relevant issues by the learned Trial Court but fundamentally, the submission on behalf of the defendants-appellants has been that the learned Trial Court acted wholly illegally in closing down their right of adducing evidence and the same has resulted in serious injustice. It has been prayed that the defendants-appellant may be permitted to lead their evidence in this case wherein substantial property rights are involved. The submissions have been opposed on behalf of the plaintiffs and it has been contended that the learned Trial Court extended adequate and enough opportunities to the defendants and even after closure of the evidence on 05.03.2008, the matter was adjourned on various occasions before the same was decided on 24.05.2008 but in meantime, the defendants neither put any proposition for examining any witness nor even challenged the order of closure of evidence before the High Court. It is also submitted that the defendants had not been fair in their conduct and had attempted to somehow delay the proceedings at every stage and even filed the written statement after taking more than reasonable opportunities. It is also submitted that the defendants have enjoyed the part of sale consideration received; then, have enjoyed the land in question; and then, put the land in mortgage with the Bank and the same is being subjected at present to the recovery proceedings and all this had been to the serious prejudice and disadvantage of the plaintiffs. It is also submitted that the defendants have enjoyed the part of sale consideration received; then, have enjoyed the land in question; and then, put the land in mortgage with the Bank and the same is being subjected at present to the recovery proceedings and all this had been to the serious prejudice and disadvantage of the plaintiffs. It is submitted that the defendants have nothing to substantiate in their evidence and the suit for specific performance having rightly been decreed, the impugned judgment and decree call for no interference. 10. Having examined the record of the case, this Court is unable to agree with the submissions made on behalf of the plaintiffs and having regard to the facts and circumstances, this Court is of considered opinion that while setting aside the impugned judgment and decree, the matter deserves to be remanded to the Trial Court for decision of the suit after affording adequate opportunity of leading evidence to the defendants. 11. The submissions as made on behalf of the plaintiffs respondents that the defendants did not earlier challenge the order closing their evidence or did not put an effort to seek permission to lead evidence even after closure before the Trial Court are hardly of any bearing; and cannot be accepted. The defendants are entitled to challenge the order passed during the course of trial of the suit in this regular appeal and merely because no effort was made before the Trial Court, it cannot be said that they were not interested in leading evidence. Other submission with reference to the past conduct of the defendants is also not of much relevance on the questions if the defendants were afforded adequate opportunity of leading evidence; and as to whether they could have been granted another opportunity on 05.03.2008 or not. Equally, the submissions as made in relation to the dealings of the defendants with the land in question and their having enjoyed the alleged sale consideration etc. might have some bearing on any other aspect related with the merits of the case but and however, for such submissions, it cannot be said that the defendants were not to be afforded adequate opportunity of leading their evidence. 12. The approach of the learned Trial Court in closing down the right of the defendants to lead their evidence is difficult to be countenanced. 12. The approach of the learned Trial Court in closing down the right of the defendants to lead their evidence is difficult to be countenanced. True it is that on two occasions the defendants-appellants did pray for time to adduce evidence but the fact of the matter remains that the Trial Court granted such prayer and adjourned the matter for the purpose. Noticeable it is that on 14.12.2007 and on 25.01.2008, though the matter was fixed for defendants evidence, the learned Presiding Officer was on leave and the evidence was not likely to be recorded on those dates even if the defendants would have kept their witnesses present. Taking a practical view of the matter, the learned Trial Court could have granted another opportunity to the defendants for adducing their evidence on reasonable terms of costs if so required, without causing any prejudice to the other side. 13. It is to be imbibed, as impressed upon repeatedly by the Courts, that the rules of procedure are ultimately intended to subserve the cause of justice; that a matter is always preferred to be decided on merits after affording fullest opportunity of hearing to the parties; and that, except in the case of compelling circumstances, ex parte or default decisions are avoided. The approach of mere disposal of the matter with closing down of evidence only leads to unnecessary elongating the life of a litigation, as is to be happen in the present case, where this Court has no option except to remand the matter for reconsideration. 14. The learned Trial Court ought to have reminded itself of the principles in relation to the rules of procedure as enunciated by the Hon'ble Apex Court in the case of Sangram Singh v. Election Tribunal, Kotah & Anr. : AIR 1955 SC 425 that have been followed and applied hitherto by the Courts that,- "16. Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it. 17. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it. 17. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle. 15. In the present case, denial of adequate opportunity of adducing evidence to the defendants has practically resulted in a decree more or less ex parte in the nature and, looking to the serious questions involved in the matter in relation to the property rights of the parties, it appears appropriate and in the interest of justice that the defendants be allowed an opportunity of leading evidence before the Trial Court who is required to arrive at a considered finding on the relevant issues. 16. For the order of remand proposed to be passed in the matter, this Court would not like to comment on the merits of the case, but prima facie it does appear that the learned Trial Court has not scanned through the entire record while passing impugned judgment and decree in the present suit. Want of thorough consideration of the record by the learned Trial Court is amply demonstrated by the application moved by the plaintiffs under Sections 151 and 152 of the Code of Civil Procedure (CPC) after passing of the decree in the present case that was pending when this Court requisitioned the record. 17. In the said application under Sections 151 and 152 CPC, the plaintiffs have pointed out to the Trial Court that the observations regarding the dues of the State Bank of Patiala were not correct and the decree was required to be modified accordingly. 17. In the said application under Sections 151 and 152 CPC, the plaintiffs have pointed out to the Trial Court that the observations regarding the dues of the State Bank of Patiala were not correct and the decree was required to be modified accordingly. It is noticed that while deciding issue No.4, the learned Trial Court observed that as on 01.01.2007, an amount of Rs.1,03,596.71 was due in the State Bank of Patiala and interest must have accrued thereupon but then, the amount due would appear to be lesser than the remaining amount of sale consideration i.e., Rs.2,92,000/-. The plaintiffs have pointed out in their application that there were two loan accounts with the said Bank and in those accounts respectively Rs.3,47,289/- as on 10.04.2007 and Rs.1,03,796/- as on 18.07.2007 were the dues, totaling to Rs.4,51,085/-. The submissions so made by the plaintiffs appear to be correct when examined in the light of the documents Ex.7 and Ex.8 available on record showing two different bank accounts and different dues, sum total whereof exceeds the alleged remaining sale consideration. Apparently, the learned Trial Court has not examined the entire of the record of the case. The plaintiffs have also pointed out in their application that all the particulars of the suit land have not been mentioned in the decree passed by the learned Trial Court and even the names of legal representatives of the deceased defendant have not been not mentioned therein. It is at once apparent that the decree had not been drawn in conformity with the judgment delivered in the matter. Every litigation is, of course, required to be decided with reasonable promptitude and expediency but the requirements of particularity and thorough examination of record cannot be compromised. 18. No further comments are made in this case as the matter is being remanded but, for all the reasons aforesaid, this Court is of considered opinion that the impugned judgment and decree cannot to be sustained and deserve to be set aside. 19. Accordingly, this appeal is allowed to the extent indicated above; the impugned judgment and decree dated 24.05.2008 are set aside; Civil Suit No.350/2005 shall stand restored to its number with the Additional District Judge (Fast Track) No.1, Hanumangarh and the Trial Court shall proceed with the matter while affording an opportunity to the defendants to lead their evidence; and thereafter the shall decide the matter on merits. However, costs of this appeal shall follow the final decision by the learned Trial Court. 20. During the course of submissions, it has been submitted by the learned counsel for the plaintiffs-respondents that the land in question is being subjected to coercive proceedings for recovery of the dues of the Bank and if such proceedings are continued and finalised, the plaintiffs might suffer irreparable injury. Having regard to the facts and circumstances of the case, this Court would only observe in this regard that if the plaintiffs make any prayer for any interim relief, the same may also be dealt with by the learned Trial Court in accordance with law. 21. The parties through their counsel shall stand at notice to appear before the Trial Court on 01.12.2008.Record be returned immediately.Appeal Allowed. *******