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2012 DIGILAW 2330 (BOM)

Victorina J. Travasso v. Rosy Noronha

2012-12-13

A.P.LAVANDE

body2012
Judgment : The application filed by the respondent for payment of deficit Court fee of Rs.2,100/-, is taken on record. 2. Heard Mr. Teles, learned Counsel for the appellants and Mr. Coelho Pereira, learned Senior Counsel for the respondent. 3. By this Second Appeal, the appellants take exception to judgment and decree dated 14/10/2003 passed by the Additional District Judge, Margao in Regular Civil Appeal No.56/2002 by which the appeal preferred by the appellants against the judgment and decree dated 28/12/2001 passed in Regular Civil Suit No.17/1998 by learned Civil Judge, Junior Division, Quepem, has been dismissed. 4. The appellants are the original defendants and the respondent is the plaintiff in the above suit. 5. The parties shall hereinafter be referred to as per their status before the trial Court. 6. The plaintiff filed the suit seeking declaration and consequential reliefs against the defendants on the ground that an agreement was entered into between the parties by virtue of writing dated 03/02/1995 by which a plot admeasuring 1000 square metres of Survey No.127/4(part) of village Sirvoi of Quepem Taluka, was agreed to be sold and part consideration of Rs.10,000/- was advanced to the defendants. It was the case of the plaintiff that the said plot was agreed to be sold for a total consideration of Rs.40,000/- out of which as stated above, an advance of Rs.10,000/- was paid and the plaintiff was ready and willing to pay the balance consideration of Rs.30,000/-. Since it was the case of the plaintiff that since defendants have refused to transfer the suit plot, she has no other alternative but to file the suit. The suit was contested by the defendants by filing written statement on 27/04/1998. Thereafter, additional written statement was filed on 13/12/1999. 7. In the suit, the plaintiff examined herself and PW2 Anthony Fernandes whereas defendant no.1 examined himself. 8. Learned trial Court framed the following issues : “(i) Whether the plaintiff proves that defendants entered into an agreement to sell the suit plot to her and towards which she paid the advance of Rs.10,000/- to the defendants on 3.2.95 out of total purchase amount of Rs.40,000? (ii) Whether the plaintiff proves that the possession of suit plot was handed over to the plaintiff by the defendants, but the defendants forcibly constructed boundary wall of laterite stones around the suit plot? (ii) Whether the plaintiff proves that the possession of suit plot was handed over to the plaintiff by the defendants, but the defendants forcibly constructed boundary wall of laterite stones around the suit plot? (iii) Whether the plaintiff proves that she approached defendants requesting them to accept balance consideration amount of Rs.30,000/- and to execute the final sale deed and that she is willing and ever ready to perform her part of contract ? (iv) Whether the defendants prove that the plaintiff voluntarily paid Rs.10,000/- as advance expressing her desire to purchase any plot of defendants and defendants told her that any suitable plot will cost Rs.50,000/- and would identify plot for her only if she paid Rs.40,000/- within a year or would return her Rs.10,000/- without interest ?” (v) Whether defendants prove that defendant no.2 returned Rs.25,000/- to the plaintiff paid by her and defendants told plaintiff to take back the advance amount of Rs.10,000/- and informed that they would not identify any suitable plot for her? (vi) Whether the defendants prove that plaintiff has no cause of action to file the suit? (vii) Whether the plaintiff proves that she is entitled for the relief claimed? (viii) What Order? What relief?” ADDITIONAL ISSUE “Whether the plaintiff proves that she is entitled for Mandatory injunction to demolish the boundary wall of laterite stones constructed around the suit plot and for restoration of the land in its original position? ” 9. Learned trial Court answered issues no.1 and 3 in the affirmative and issue no.7 partly in the affirmative whereas rest of the issues were answered in the negative. Learned trial Court also answered additional issue in the negative. Learned trial Court, upon appreciation of the evidence led by the parties, accepted the case set up by the plaintiff and consequently, decreed the suit. The appeal bearing Regular Civil Appeal No.56/2002 was preferred before the District Court, South Goa, Margao which was made over to District Judge-I, South Goa, Margao. 10. Learned trial Court, upon appreciation of the evidence led by the parties, accepted the case set up by the plaintiff and consequently, decreed the suit. The appeal bearing Regular Civil Appeal No.56/2002 was preferred before the District Court, South Goa, Margao which was made over to District Judge-I, South Goa, Margao. 10. Learned lower appellate Court framed the following points for determination in the appeal in terms of Order XLI, Rule 31 of C.P.C. : “(i) Whether the so called agreement of sale is bad in law in view of the provisions of Article 1119 of Civil Code?” (ii) Whether any interference is called for with the findings given by the learned trial Court?” The lower appellate Court answered both the points in favour of the plaintiff and consequently, dismissed the appeal. 11. The appeal was admitted on the following substantial questions of law: “(i) Whether the valuation of the suit was according to the valuation of the consideration in terms of Section 7(X)(A) of the Court Fees Act, 1870? (ii) Whether the trial Court had pecuniary jurisdiction to try and entertain the present suit? (iii) Whether a mere suit for declaration without claiming relief of specific performance was maintainable and if so, whether the plaintiff/ respondent had averred and proved readiness and willingness to perform her part of the contract under Section 16(c) of the Specific Relief Act ?” 12. At the outset, Mr. Teles submitted that two additional substantial questions of law arise in the second appeal and as such, they be formulated and be taken into consideration for the purpose of disposal of Second Appeal. The prayer was opposed by Mr. Coelho Pereira, learned Senior Counsel for the respondent. Having perused the questions sought to be raised, at this stage, I am of the considered opinion that these questions do not arise, having regard to the pleadings between the parties and the contentions raised by the defendants before the trial Court and before the lower appellate Court. Hence, the prayer for framing additional substantial questions of law is rejected. 13. Mr. Teles, learned Counsel for the appellants/ defendants submitted that the suit is simpliciter for declaration and such a suit without seeking relief of specific performance, was not maintainable. Learned Counsel further submitted that receipt exhibit PW1/A upon which reliance has been placed by the plaintiff does not specify the plot which has to be transferred. 13. Mr. Teles, learned Counsel for the appellants/ defendants submitted that the suit is simpliciter for declaration and such a suit without seeking relief of specific performance, was not maintainable. Learned Counsel further submitted that receipt exhibit PW1/A upon which reliance has been placed by the plaintiff does not specify the plot which has to be transferred. As such, no decrees could have been passed by both the Courts below in favour of the plaintiff. Learned Counsel further submitted that the suit was filed in the Court of Civil Judge, Junior Division in the year 1998 when the pecuniary jurisdiction of Civil Judge, Junior Division in terms of the Goa Civil Courts Act, 1965 was Rs.25,000/- and having regard to the fact that the value of the property which according to the plaintiff, was agreed to be sold by the defendants was Rs.40,000/-, learned Civil Judge, Junior Division had no jurisdiction to entertain the suit. Learned Counsel further submitted that since the trial Court had no pecuniary jurisdiction to entertain the suit, the decree passed by the trial Court was nullity and consequently, the decree passed by the lower appellate Court is also nullity. Learned Counsel further submitted that the defendants and more particularly, defendants no.1 and 2 had no right to agree to sell the plot to the plaintiff inasmuch as they were not the owners of the suit plot. Learned Counsel, therefore, submitted that the decrees passed by both the Courts below are patently illegal and as such, are liable to be quashed and set aside. In support of his submissions, Mr. Teles placed reliance upon the following judgments : “(i) ChiranjilalShrilal Goenka Vs. Jasjit Singh and others; (1993)2 SCC 507 . (ii) ChandrikaChunilal Shah Vs. Orbit Finances Pvt. Ltd & Ors.; 2011(4) All MR 275. (iii) A. V. M. Sales Corporation Vs. Anuradha Chemicals Private Limited; (2012)2 SCC 315 .” 14. Per contra, Mr. Coelho Pereira, learned Senior Counsel appearing for the respondent/plaintiff submitted that the suit filed by the plaintiff was essentially the suit for declaration and specific performance. Learned Counsel further submitted that no doubt the suit was valued at Rs.100/- although the plaintiff was bound to pay ad valorem court fee on the consideration amount of Rs.40,000/-. Mr. Per contra, Mr. Coelho Pereira, learned Senior Counsel appearing for the respondent/plaintiff submitted that the suit filed by the plaintiff was essentially the suit for declaration and specific performance. Learned Counsel further submitted that no doubt the suit was valued at Rs.100/- although the plaintiff was bound to pay ad valorem court fee on the consideration amount of Rs.40,000/-. Mr. Coelho Pereira, learned Senior Counsel, therefore, submitted that the plaintiff has filed an application seeking extension of time to pay deficit court fee in terms of Section 149 of C.P.C. which deserves to be allowed. Learned Senior Counsel further submitted that the trial Court has not framed the issue that the defendants are not the owners of the suit property and as such the defendants cannot be compelled to transfer the suit plot to the plaintiff and the said issue was raised before the lower appellate Court which was dealt with by lower appellate Court. As such, no interference is warranted with the impugned judgment of lower appellate Court. Learned Senior Counsel further submitted that having regard to the pleadings in the plaint read as a whole, it is evident that the suit is for declaration and for specific performance, though appropriate court fees were not paid by the plaintiff at the time of institution of the suit. Learned Counsel further submitted that the pleadings in the plaint as well as the evidence led by the plaintiff clearly disclose that the plaintiff was all throughout ready and willing to perform her part of the contract in terms of Section 16(c) of the Specific Relief Act and, therefore, the plaintiff is entitled to the relief of specific performance. Insofar as jurisdiction of the trial Court is concerned, learned Senior Counsel submitted that though at the time of institution of the suit in the year 1998 the pecuniary jurisdiction of Civil Judge, Junior Division was upto Rs.25,000/- in terms of Section 20(3) of Goa Civil Courts Act, 1965, in terms of amendment carried out to the Goa Civil Courts Act on 18/08/1998, the pecuniary jurisdiction of Civil Judge, Junior Division was extended upto Rs.1,00,000/-and as such, learned trial Court has jurisdiction to pass impugned decree. As such, the said decree cannot be said to be either illegal or without jurisdiction. As such, the said decree cannot be said to be either illegal or without jurisdiction. Learned Senior Counsel lastly submitted that there are concurrent findings of fact recorded by both the Courts below and the appellants are not entitled to succeed on any of the substantial questions of law formulated at the time of admission of appeal. Learned Counsel further submitted that the defendants at no point of time before the trial Court took objection as to jurisdiction on the ground that the suit was undervalued and such objection ought to have been raised at the earliest before the trial Court in terms of Section 11 of the Suit Valuation Act. In support of his submissions, Mr. Coelho Pereira placed reliance upon the judgment of Punjab and Haryana High Court in the case of Sat Paul and another Vs. Jai Bhan Ananta Saini; AIR 1973 Punjab and Haryana 58. 15. I have carefully considered the rival submissions, perused the record and the judgments relied upon. 16. Insofar as the first substantial question of law is concerned, no doubt, the suit was valued as the suit for the purpose of declaration and no court fees were paid in respect of the relief of specific performance. However, upon meaningful reading of the plaint and the evidence led by the parties, it is evident that the suit filed by the plaintiff was not only for declaration but also for specific performance though the prayer clause is not couched in happy language. Needless to mention that the plaintiff would not get anything tangible by simply asking for relief of declaration in respect of the receipt and obviously, therefore, the plaintiff was interested in getting declaration as well as transfer of the suit plot in her favour upon payment of balance consideration. 17. As stated above, on behalf of the plaintiff, an application has been filed for payment of deficit court fee of Rs.2,100/-which is taken on record. The application has been opposed by Mr. Teles on the ground that the plaintiff had not prayed for specific performance in respect of the suit plot. I have already held that suit was not only for declaration but also for specific performance. Therefore, the plaintiff is justified in invoking Section 149 of C.P.C. which permits payment of deficit court fees at any stage. Teles on the ground that the plaintiff had not prayed for specific performance in respect of the suit plot. I have already held that suit was not only for declaration but also for specific performance. Therefore, the plaintiff is justified in invoking Section 149 of C.P.C. which permits payment of deficit court fees at any stage. Section 149 of C.P.C. provides that if the court fee prescribed for the time being has not been paid, the Court in its discretion, at any stage, may allow the person, by whom such fee is payable to pay deficit court fee. In my view, it would be highly unjust to non-suit the plaintiff solely on the ground that the plaintiff did not pay the requisite court fee in respect of the suit for specific performance. Therefore, it would be just and proper to permit the plaintiff to pay deficit court fee. Therefore, I deem it appropriate to permit the plaintiff to pay deficit court fee of Rs.2,100/- before the trial Court. 18. Coming to second substantial question of law, no doubt the plaintiff had valued the suit for the purpose of court fees and jurisdiction at Rs.100/-as on the date of filing of the suit i.e. on 31/01/1998. Firstly, the defendants in the written statement did not take any objection regarding pecuniary jurisdiction of the Court which was required to be taken in terms of Section 11 of the Suit Valuation Act. Moreover, as rightly submitted by Mr. Coelho Pereira, the jurisdiction of Civil Judge, Junior Division which was upto Rs.25,000/- as on the date of filing of the suit, was increased to Rs.1 Lakh with effect from 18/08/1998 by virtue of amendment carried out to Section 20(3) of the Goa Civil Courts Act. As such, on the date of passing of the decree, learned trial Court had very much jurisdiction to pass the decree which was impugned before the lower appellate Court. Therefore, in my view, the decree passed by the trial Court cannot be said to be without jurisdiction and illegal inasmuch as on the date of passing of the decree, learned trial Court had very much jurisdiction to pass the decree. 19. Therefore, in my view, the decree passed by the trial Court cannot be said to be without jurisdiction and illegal inasmuch as on the date of passing of the decree, learned trial Court had very much jurisdiction to pass the decree. 19. Insofar as third substantial question of law is concerned, in my view, as stated above, the suit though styled for declaration and consequential relief, was essentially a suit for declaration and specific performance though the prayer clause was not properly worded. Moreover, if the suit was simpliciter for declaration, there was no question of trial Court granting the decree of declaration in view of Section 34 of the Specific Relief Act inasmuch as admittedly, the plaintiff was not put in possession and as such even prayer (b) could not have been granted by the trial Court on admitted facts. In addition, the defendants were very much aware that the plaintiff was claiming transfer of the suit plot by filing the suit and as such, at no point of time took defence that the suit simpliciter for declaration, was not maintainable. No doubt, the plaintiff had sought permanent injunction in respect of the suit plot, but such relief was available to the plaintiff only upon transfer of the suit plot in her favour. 20. Coming to the aspect of compliance of Section 16(c) of the Specific Relief Act, upon meaningful reading of the plaint and the evidence led by the plaintiff, it is evident that the plaintiff was all throughout ready and willing to perform her part of the contract. She was ready to pay balance consideration of Rs.30,000/-for conveying the suit plot in her favour. Moreover, it is pertinent to note that no such issue or point for determination was framed either by the trial Court or by the lower appellate Court respectively. Moreover, in paragraph 8 of the plaint, the plaintiff had specifically mentioned that she was willing and ever ready to perform her part to purchase the suit plot by paying balance consideration of Rs.30,000/-. Therefore, in my view, the plaintiff had complied with the mandatory provision of Section 16(c) of the Specific Relief Act. 21. Coming to the submission made by Mr. Teles that the defendants are not the owners of the suit plot, therefore, no decree for specific performance can be passed against them is concerned, as rightly pointed out by Mr. Therefore, in my view, the plaintiff had complied with the mandatory provision of Section 16(c) of the Specific Relief Act. 21. Coming to the submission made by Mr. Teles that the defendants are not the owners of the suit plot, therefore, no decree for specific performance can be passed against them is concerned, as rightly pointed out by Mr. Coelho Pereira, learned Counsel for the respondent/ plaintiff, no issue has been framed in this regard by the trial Court but the issue was raised by the appellants before the lower appellate Court and the lower appellate Court dealt with this issue. In the absence of specific pleadings the defendants were not entitled to raise such issue for the first time before the Appellate Court. That apart, there was agreement between the original owners and developers in which right has been given in favour of defendants no.1 and 2 to sell the plot independently to respective buyers and purchasers. Moreover, the evidence discloses that some of the remaining plots were taken by the defendants pursuant to agreement of development entered into with the owners. Therefore, in my view, the question of non-suiting the plaintiff on the ground that the defendants have no title to the suit property, does not arise. 22. I shall now deal with the judgments cited by both sides. In the case of AVM Sales Corporation (supra), the Apex Court held that the parties by consent cannot confer jurisdiction on the Court which has no territorial or pecuniary jurisdiction to entertain the lis. There can be no dispute with this proposition of law but as already held, the defendants had not taken specific objection regarding jurisdiction in the written statements filed and in any case though the decree was passed by learned trial Court in the year 2001, by virtue of amendment carried out to Civil Courts Act, learned trial Court had jurisdiction to entertain the suit and pass the impugned decree. Therefore, in my view, the said judgment does not advance the case of the defendants. In the case of Chiranjilal Goenka (supra), the Apex Court has held that the decree passed without jurisdiction is nullity and non-est, and its validity can be challenged even at the stage of execution. For the very same reason, this judgment does not help the case of the defendants. In the case of Chiranjilal Goenka (supra), the Apex Court has held that the decree passed without jurisdiction is nullity and non-est, and its validity can be challenged even at the stage of execution. For the very same reason, this judgment does not help the case of the defendants. In the case of Chandrika Shah (supra), learned Single Judge of this Court has held that upon amendment being granted to the plaint seeking cancellation of agreement, the plaintiff was required to value the suit in terms of Section 6(iv)(ha) of Bombay Court Fees Act. I have already permitted the plaintiff to pay additional court fee in terms of Section 149 of C.P.C. and as such, this judgment also does not advance the case of the defendants. In the case of Sat Paul (supra) relied upon on behalf of the plaintiff placing reliance upon Section 11 of Suits Valuation Act, learned Single Judge of Punjab and Haryana High Court held that objection to jurisdiction of the Court to entertain the appeal based on undervaluation would succeed only when it was shown that undervaluation had prejudicially affected disposal of the appeal on merits, although it was further held that deficiency in the Court fee on the memorandum of appeal before the lower appellate Court can be allowed to be made good even at the stage of Second Appeal. 23. In view of the above, I do not find any merit in Second Appeal and all the substantial questions of law mentioned in paragraph no.11 hereinabove, are answered in favour of the respondent/ plaintiff. Consequently, Second Appeal stands dismissed with costs. 24. The respondent/ plaintiff is permitted to pay deficit court fee of Rs. 2,100/- in the trial Court, within a period of eight weeks from today. 25. The respondent / plaintiff is directed to deposit balance consideration of Rs.30,000/-in the trial Court within a period of eight weeks from today. 26. Record and Proceedings be sent to the trial Court in order to enable the plaintiff to pay the deficit court fees.