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2015 DIGILAW 1264 (JHR)

Naresh Chandra Agarwal v. Tathagat Roy

2015-10-09

AMITAV K.GUPTA

body2015
ORDER : The present appeal has been filed by the plaintiff/appellant against the order dated 16.12.2011 passed by Sri Soukat Iqbal, Subordinate Judge-II, Hazaribagh, whereby and whereunder he has dismissed Title Suit No.94/97 of the plaintiff holding that the plaintiff was non-suited as the cause of action in favour of the plaintiff, came to an end with the execution of the sale deed. 2. Brief fact of the case is that the suit was instituted by the plaintiff for specific performance of a contract for sale of the immovable property described in schedule of the plaint. It was alleged that he had paid a large portion of the agreed consideration amount. The suit was contested on various grounds and the trial proceeded and evidence was recorded in the case. During the pendency of the suit, a petition was filed by defendants no.3 and 4 alleging therein that the sale deed has already been executed through the power of attorney holders of the vendors with whom the plaintiff had a contract for sale of the property. The defendants therefore prayed for dismissal of the suit as the contract was already performed. The plaintiff, in reply, admitted the fact that sale deed was executed in his favour but made prayer for rejection of the application of the defendant. The court below held that since the agreement has already been performed, hence the plaintiff is fit to be non-suited and also imposed cost of Rs.2000/-under Section 35A of C.P.C. for false and vexatious claim. 3. The appellant submits that the court below committed error in holding that the plaintiff was fit to be non-suited and imposition of cost is also illegal. 4. The learned counsel for the respondent submits that the appeal is not maintainable as there is no decree and further submits that the court below has rightly held that the plaintiff is fit to be non-suited. 5. Heard the parties. Perused the impugned order. Non-suit is a judgment against a plaintiff in a civil action for failure to prosecute the case or to introduce sufficient evidence. It is a judgment against a plaintiff when he is unable to prove his case or refuses or neglects to proceed in the trial. It is abundantly clear that the requirement of non-suit is not applicable as none of the above facts had happened. It is a judgment against a plaintiff when he is unable to prove his case or refuses or neglects to proceed in the trial. It is abundantly clear that the requirement of non-suit is not applicable as none of the above facts had happened. On the contrary, the defendant is alleged to have fulfilled the contractual obligations in favour of the plaintiff. Thus it appears to be a case of satisfaction of the claim of the plaintiff which is covered under Order XXIII Rule 3 of C.P.C. Hence it appears that the court below has apparently passed a wrong order of non-suiting of the plaintiff. So far the maintainability of the appeal is concerned, dismissal of a suit also comes within the definition of decree and hence the appeal is maintainable. 6. In view of the facts stated above the impugned order is set aside. The matter is remitted to the trial court for passing fresh order on the basis of the materials available on record in accordance with law.