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2014 DIGILAW 160 (BOM)

Rosarinho D'Costa v. A. B. Menezes

2014-01-23

F.M.REIS

body2014
JUDGMENT Heard Mr. N. Sardessai, learned counsel appearing for the appellants and Mr. A. F. Diniz, learned counsel appearing for the respondents. 2. The above appeal came to be admitted by order dated 31.03.2008 on the following substantial questions of law. (a) Whether the clauses of the Agreement dated 8.12.1984 executed by the builder with the respondents, which were clearly in excess of the powers/authority given by the appellants to the builder by Agreement dated 31.03.1984 and the Power of Attorney dated 29.03.1984 be said to be binding on the appellants especially when the respondents were aware that the builder's Agreement with the appellants and the Power of Attorney given by the appellants to the builder did not empower the builder to execute such clauses ? (b) Whether it was mandatory for the Appellate Court to have framed issues/points for determination and decide the same while disposing the Regular Civil Appeal No.160/2001 ? (c) Whether the findings of the Courts below are unsustainable in law, for having arrived at, without considering the effect of the clause Nos.4 and 11 of the Agreement dated 31.03.1984 especially when it was the appellants' case that in view of the Agreement dated 31.03.1984, the builder could not have legally agreed with the respondents not to put up construction of the third storey on the north-south wing of the proposed building ? (d) Whether the Appellate Court erred in deciding the appeal without adverting to the binding nature of the entire Agreement dated 8.12.1984 on the appellants when it was the appellants' case that all the clauses of the said Agreement were not at all binding on the appellants as they were executed in excess of the authority given by the appellants to the builder ? (e) The appellants crave leave to urge such other and further substantial questions of law at the time of hearing ? 3. At the time of the hearing of the above appeal, both the learned counsel have pointed out that the above appeal can be disposed of by examining the substantial questions of law (a) and (b) referred to herein above. 4. Mr. 3. At the time of the hearing of the above appeal, both the learned counsel have pointed out that the above appeal can be disposed of by examining the substantial questions of law (a) and (b) referred to herein above. 4. Mr. Sardessai, learned counsel appearing for the appellants has assailed the impugned judgments of the Courts below on the ground that though an agreement for sale cum development clearly specified the terms and conditions upon which the builder had carried out the development, such builder has exceeded his power to enter into an understanding or transaction with the respondents contrary to such terms and conditions. The learned counsel has thereafter taken me through the agreement and pointed out that the agreement clearly specified that the builder had to put up a ground plus two floors and the construction is to be shared between the appellants who were the owners of the land to the extent of 35% and the remaining 65% was to be retained by the builder. The learned counsel has thereafter taken me through the other terms of the agreement and pointed out that there is a specific term therein that the appellants would be entitled to put up a third floor in case FAR had changed and that the builder would have no claim therein. The learned counsel further pointed out that to comply with the terms of the said agreement a power of attorney was also executed and as such the terms of the agreement had to be read in the power of attorney. The learned counsel further pointed out that there was no powers given to the builder with regard to the construction of the third floor and as such any condition that impinges the rights of the appellants to put up such additional floor would not be binding on the appellants. The learned counsel has pointed out that though this contention was raised before the learned Lower Appellate Court, the learned Judge without framing the point for determination nor adverting to any such contention has dismissed the appeal filed by the appellants. The learned counsel has pointed out that though this contention was raised before the learned Lower Appellate Court, the learned Judge without framing the point for determination nor adverting to any such contention has dismissed the appeal filed by the appellants. The learned counsel has taken me through the impugned judgment of the learned Lower Appellate Court and pointed out that there is no scrutiny of evidence nor discussion with regard to the contentions raised by the appellants which itself vitiate the judgment of the learned Lower Appellate Court and deserves to be quashed and set aside. The learned counsel as such points out that the above substantial questions of law are to be answered in favour of the appellants and consequently, the suit filed by the respondents deserves to be dismissed. 5. On the other hand, Mr. Diniz, learned counsel appearing for the respondents has vehemently argued that in terms of the agreement as well as the consequent power of attorney, the appellants had no right to any built up area beyond 35% reserved for the appellants. The learned counsel as such points out that any further area constructed or to be constructed in the disputed property was exclusively belonging to the said builder and as such free to dispose of in any manner if he so desired. The learned counsel further pointed out that the Courts below have also come to the conclusion that the builder has not put up any foundation which would withstand another third floor and as such according to him the appellants are not in a position to put up any such construction. The learned counsel further pointed out that as the trial Judge has rightly appreciated the material on record and has come to the conclusion that the agreement executed in favour of the respondents can be enforced there is no reason for any interference in the impugned judgment. 6. I have considered the submissions of the learned counsel and I have also gone through the records. In view of the contention of the learned counsel, I have initially examined the second substantial question of law referred to herein above. On perusal of the records, I find that the suit was filed by the respondents for permanent injunction as well as for mandatory injunction. In view of the contention of the learned counsel, I have initially examined the second substantial question of law referred to herein above. On perusal of the records, I find that the suit was filed by the respondents for permanent injunction as well as for mandatory injunction. Essentially, the case of the respondents was that by way of an agreement dated 08.12.1984 the builder engaged by the appellants had reserved the proportionate right to the plot on which the said building was constructed to the respondents including the proportionate right to the terrace. It is further their case that it was further agreed by the builder that in the event an additional FAR is sanctioned to the defendants to make any additional construction than the said construction should be done on the wing which is on east-west direction and it was specifically agreed that no construction would be carried out on the wing of the said building which is north-south direction. In such circumstances, one of the essential aspects to be examined was whether the builder was empowered in terms of the agreement executed by the appellants to enter into such transaction and/or whether the power of attorney given by the appellants would authorise the said builder who is not otherwise a party to the suit to enter into such commitment. By judgment dated 20.10.2001 the learned Civil Judge Junior Division, at Margao, after framing the issues and recording of the evidence inter-alia came to the conclusion that the respondents/plaintiffs have got the proportionate right to the suit plot so also to the terrace of the building. The judgment passed by the Trial Court was assailed by the appellants before the Appellate Court being Regular Civil Appeal No.160/2001 which came to be disposed of by judgment dated 27.10.2006. The learned Appellate Court without examining the rival contentions as to whether on the basis of the agreement and power of attorney, the builder was authorized to enter into the said commitment has disposed of the appeal without recording any specific reasons with that regard. In fact, this Court in the judgment passed in Second Appeal No. 78 of 2012 dated 12.07.2013 has held at para 8 thus : “8.................................The judgment of the First Appellate Court should disclose the detailed discussion regarding the material on record and the findings arrived at being supported by proper reasoning. In fact, this Court in the judgment passed in Second Appeal No. 78 of 2012 dated 12.07.2013 has held at para 8 thus : “8.................................The judgment of the First Appellate Court should disclose the detailed discussion regarding the material on record and the findings arrived at being supported by proper reasoning. The discussion in the judgment should not only reveal mere analysis and the findings on such analysis but should also disclose proper application of mind on consideration of the provisions of law applicable to the facts of a given case. Such exercise would reveal the application of mind by the First Appellate Court which would in turn show the manner in which the point which has been considered to arrive at its findings. It is not open to the First Appellate Court only to reproduce the submissions advanced before the Court and summarily decide the matter in controversy. If such exercise is resorted to there would be no consideration by the First Appellate Court of the detailed analysis of the material on record or recording of reasons in terms of Order 41 Rule 31 of C.P.C.” 7. Considering the observations of this Court referred to above, I find that the learned Lower Appellate Court has not complied with the requirements of Order 41 Rule 31 of Civil Procedure Code while passing the impugned judgment. There is no appreciation of evidence on record nor the material adduced by the parties to draw the conclusion referred to in the impugned judgment. The agreement for sale nor the power of attorney has been examined by the learned Lower Appellate Court while deciding the dispute between the parties. Before the First Appellate Court the issues on fact and law are open for discussion and as such all the aspects raised by the parties would have to be scrutinized by the Appellate Court and give reasons for their consideration. Even the point for determination referred to in the impugned judgment cannot meet the requirements of Order 41 Rule 31 of Civil Procedure Code. The First Appellate Court should note that it is the last Court on fact and as such it is expected that the First Appellate Court is required to examine each and every submissions as well as the material on record to come to a definite conclusion. Even on perusal of the findings of the learned Lower Appellate Court, Mr. The First Appellate Court should note that it is the last Court on fact and as such it is expected that the First Appellate Court is required to examine each and every submissions as well as the material on record to come to a definite conclusion. Even on perusal of the findings of the learned Lower Appellate Court, Mr. Diniz, learned counsel appearing for the respondents was unable to point out any specific discussions by the learned Lower Appellate Court while deciding the appeal on merits. 8. As the learned Lower Appellate Court has not examined the matter in terms of Order 41 Rule 31 of Civil Procedure Code and without going into the rival contentions on merits, I find it appropriate and in the interest of justice to quash and set aside the judgment of the learned Lower Appellate Court dated 27.10.2006 and remand the matter to the learned Judge to decide the appeal filed by the appellants afresh after hearing the parties in accordance with law. The second substantial question of law is answered accordingly. 9. In view of the findings rendered aforesaid on the second substantial question of law, I did not proceed to examine the rival contentions advanced by both the learned counsel with regard to the first substantial question of law. All contentions on merits advanced by both the parties are left open. 10. In view of the above, I pass the following : ORDER (i) The appeal is partly allowed. (ii) The impugned judgment dated 27.10.2006 of the learned Lower Appellate Court passed in Regular Civil Appeal No. 160/2001 is quashed and set aside. (iii) Regular Civil Appeal No.160/2001 is restored to the file of the learned Lower Appellate Court. (iv) The learned Lower Appellate Court is directed to decide the said appeal afresh in the light of the observations made herein above in accordance with law preferably within three months from the date of the receipt of the order. (v) All contentions of both the parties on merits are left open. (vi) The parties are directed to appear before the learned Lower Appellate Court on 04.03.2014 at 10.00 a.m. (vii) The appeal stands disposed of accordingly.