Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 3221 (ALL)

Siraj Nasreen v. Begum Jani

2014-10-28

MAHENDRA DAYAL

body2014
JUDGMENT Mahendra Dayal,J. 1. The plaintiff/appellant having lost from both the courts below, has filed the instant second appeal, assailing the judgment and order dated 8.8.2012, passed by the Additional Civil Judge Court No.2, Lucknow in Regular Suit No. 394 of 2007 and the judgment and order dated 14.2.2013, passed by the Additional District Judge, Court Civil Appeal No. 203/2012. 2. The case of the plaintiff/appellant is that he entered into an agreement on 28.9.1999 for sale of 1/8 share measuring 500 Sq. Ft. in House no. 395/35 situated at Kashmiri Mohalla, Police Station Saadat Ganj, District Lucknow. The agreement was registered and the sale consideration as agreed between the parties was 62,500/- and a some of Rs. 5000/- was paid as earnest money at the time of agreement. It was agreed upon between the parties that the sale deed will be executed within six months and in case the plaintiff/ appellant does not pay the remaining amount of sale consideration and does not get the sale deed executed, after payment of the balance amount of sale consideration, the agreement shall stand cancelled. When no sale deed was executed within the stipulated period, notice was issued by the appellant requiring the respondent to execute the sale deed. The notice was replied by the defendant/ respondent stating therein that her elder sister had filed a suit for partition in the court of Civil Judge, Malihabad (Senior Division) Lucknow being R.S. No. 50/2000 and as such she was not in a position to execute the sale deed. The said partition suit was decided on 21.7.2001 and thereafter an application for final decree was moved which is still pending. It was also stated by the plaintiff/appellant that he has always been ready and willing to perform his part of the contract but the defendant/respondent did not execute the sale deed within the time fixed in the agreement. 3. The defendant/ respondent filed her written statement before the trial court admitting factum of executing agreement but denied having received any notice issued by the plaintiff/ appellant. 3. The defendant/ respondent filed her written statement before the trial court admitting factum of executing agreement but denied having received any notice issued by the plaintiff/ appellant. She again stated that as per the terms and conditions of the agreement the sale deed was to be executed within six months but the plaintiff/appellant himself did not pay the balance amount of sale consideration and as such the sale deed could not be executed and after the expiry of six months and again after a period of about 3 years from the date of agreement, the suit has become barred by limitation. 4. The defendant/ respondent after filing of the written statement did not appear before the trial court and the suit proceeded exparte. However, the learned trial court dismissed the suit on the ground that the suit was barred by limitation. 5. Feeling aggrieved by the dismissal of the suit the plaintiff/appellant preferred First Appeal before the District Judge, Lucknow, which was disposed of by the Second Additional District Judge, Lucknow vide judgment and order dated 14.2.2013, whereby the appeal was dismissed. The learned appellate court also found that the suit for specific performance of contract was not filed within time as provided under the Limitation Act. 6. I have heard learned counsel for the parties and have gone through the impugned judgment as well as the pleadings of the parties. 7. The Second Appeal has been admitted only on one substantial question of law which reads as under: - "Whether civil court can dismiss suit of plaintiff exparte on the basis of the pleas taken in the written statement though the defendant did not participate in the hearing." 8. It is a submission on behalf of the learned counsel for the respondents that since the second appeal has been admitted only on a single substantial question of law, hence this court can only consider the scope and ambit of this appeal within the substantial questionof law on whcih the second appeal has been admitted. 9. The learned counsel for the appellant has, on the other hand, submitted that the hands of the Court are not tight and the Court while appreciating the impugned judgment can always examine the correctness and validity of the findings arrived at by the courts below. 10. 9. The learned counsel for the appellant has, on the other hand, submitted that the hands of the Court are not tight and the Court while appreciating the impugned judgment can always examine the correctness and validity of the findings arrived at by the courts below. 10. The learned counsel for the appellant Shri S.M. Nasir has submitted that the judgment of the First Appellate Court is vitiated for the simple reason that the compliance of the Order 41 Rule 31 has not been made which requires that the judgment of the appellate court shall state the points of determination, the decision thereon, the reasons for decision and where the decree in appeal is reversed on merit, relief which the appellant is entitled. 11. The submission on behalf of the appellant is that from the perusal of the judgment of the first appellate court it is clear that the learned appellate court has not framed any point of the determination and has proceeded to decide the appeal in a routine manner. Reliance has been palced upon a judgment of this Court rendered in Second Appeal 197 of 1991, in which the Hon'ble Single Judge has placed reliance upon the judgment of Hon'ble Supreme Court in the case of Union of India and another Vs. Ranchod and others, 2009(27)LCD 407, in which it has been held that there is non compliance of mandatory provision of Order 41 Rule 31 CPC the judgment of the appellate court has to be set aside and the matter be remanded for fresh consideration. Similar view has been expressed by the Hon'ble Supreme Court of India in United Engineers and Contractors Vs. Secretary to Govt. A.P. And others, AIR 2013 SC 2239. In this case also the Hon'ble Supreme Court has taken same view that the provision of Order 41 Rule 31 CPC is mandatory and non compliance thereof would render the judgment illegal. 12. The learned counsel for the respondents in reply to the aforesaid argument has submitted that although the first appellate court has not framed points of determination but has dismissed the appeal on merits. In these circumstances mere non framing of points of determination will not vitiate the judgment of the first appeal. 13. 12. The learned counsel for the respondents in reply to the aforesaid argument has submitted that although the first appellate court has not framed points of determination but has dismissed the appeal on merits. In these circumstances mere non framing of points of determination will not vitiate the judgment of the first appeal. 13. I do not find force in the submission of learned counsel for the respondents because in successive judgments the Hon'ble Supreme Court of India has held that the provision of Order 41 Rule 31 CPC are mandatory and the appellate court has to frame the points of determination while deciding the appeal. 14. In the instant matter as the appellate court without following the procedure prescribed under Order 41 Rule 31 CPC has passed the impugned judgment and decree, therefore, without entering into the merits of the case I hereby set aside the impugned judgment and decree of the first appellate court dated 14.2.2013, passed in Regular Civil Appeal No. 205 of 2012 and remand the matter to the appellate court to decide the same in accordance with law expeditiously. 15. With the aforesaid observations, the second appeal is allowed without any order as to costs.