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2015 DIGILAW 156 (GAU)

Dula Bose v. Biswajit Biswas

2015-02-10

SUMAN SHYAM

body2015
JUDGMENT : Suman Shyam, J. 1. This Second Appeal has been directed against the judgment dated 10.09.2012 passed by the learned Additional District Judge, FTC, Cachar, Silchar in Title Appeal No. 9/2007 whereby the matter was remanded for a fresh trial by setting aside the judgment and decree dated 13.08.2007 passed in Title Suit No. 24/2001 by the learned Civil Judge No. 1, Cachar, Silchar dismissing the suit. The plaintiff's case in brief is that Late Nripendra Chandra Bose, the husband of the defendant No. 1, had started a construction as a promoter over a plot of land owned by the proforma defendant Nos. 2 to 9. Since Late Nripendra Chandra Bose was authorized by the owners to receive money from prospective buyers for selling rooms and/or apartments in the proposed construction, hence, the plaintiff had entered into an agreement dated 28.10.1999 with Nripendra Chandra Bose for purchasing a room/flat on the ground floor of the building for a consideration of Rs. 3,50,000/- The plaintiff had paid an amount of Rs. 15,000/- as earnest money to Nripendra Chandra Bose in terms of the agreement dated 28.10.1999, under which he was required to pay an amount of Rs. 20,000/- per month as installment amount until the time the entire amount of Rs. 3,50,000/- is cleared by him. It was only thereafter the plaintiff would be entitled to ownership of the purchased room/flat. It is admitted case of the plaintiff that he has not been able to make regular payment of the monthly installment amount of Rs. 20,000/- but the plaintiff claims that he has paid a total amount of Rs. 2,20,000/- to Nripendra Chandra Bose on different occasions by obtaining receipts. However, due to the death of Nripendra Chandra Bose, transaction was put to jeopardy. As such, the plaintiff had instituted the Title Suit No. 24/2001 in the Court of Civil Judge No. 1, Cachar, Silchar, inter alia, praying for a decree of specific performance of the contract by executing a sale deed in respect of the suit room upon receiving the balance amount payable by the plaintiff. 2. The plaintiff's suit was contested by the defendant No. 1 by filing a written statement whereby, besides denying the case of the plaintiff, the defendant No. 1 had also disputed the fact that her deceased husband had received the amounts as claimed by the plaintiff. 3. 2. The plaintiff's suit was contested by the defendant No. 1 by filing a written statement whereby, besides denying the case of the plaintiff, the defendant No. 1 had also disputed the fact that her deceased husband had received the amounts as claimed by the plaintiff. 3. The learned trial Court framed as many as six issues, which are as follows:- "1) Is there any cause of action for the suit? 2) Whether the suit is maintainable in the present form? 3) Is the suit bad for non-joinder of necessary parties? 4) Whether the agreement dated 28.10.99 is legal and proper? 5) Whether the plaintiff violated the terms of agreement dated 28.10.99 and thereby forfeited the right of getting sale deed or kabala? 6) To what relief, if any, the plaintiff is entitled to?" 4. After hearing the parties the issue Nos. 1, 2, 3 and 4 were decided in favour of the plaintiff whereas Issue Nos. 5 and 6 were decided against the plaintiff. The result was that the plaintiff's suit stood dismissed. 5. Being aggrieved by the judgment and decree passed by the trial Court, the plaintiff as appellant had preferred Title Appeal No. 9/2007. The defendant No. 1, being aggrieved with the findings of the trial court in respect of Issue Nos. 1 to 4, had also filed a Cross-Objection. By the impugned judgment and decree under appeal the learned First Appellate Court disposed of the Title Appeal as well as the Cross-Objection by remanding the matter back to the trial Court for a fresh decision of the suit after obtaining the authenticity of the money receipts Exts-2, 3 and 4 on the basis of a scientific tests on the prayer of the defendant No. 1. 6. On a perusal of the judgment under appeal it appears that the entire issue before the learned First Appellate Court boiled down to the authenticity of the money receipts Exts-2, 3 and 4 and in that context the question as to upon whom the burden of proof lies to prove/disprove the genuineness of the aforesaid exhibits. The learned First Appellate Court issued a direction to the trial Court to ascertain whether the signatures appeared in Exts-2, 3 and 4 were the signatures of Nripendra Chandra Bose by way of scientific test and thereafter decide the suit. The learned First Appellate Court issued a direction to the trial Court to ascertain whether the signatures appeared in Exts-2, 3 and 4 were the signatures of Nripendra Chandra Bose by way of scientific test and thereafter decide the suit. Save and except the aforesaid observation, no other ground has been cited for setting aside the judgment and decree passed by the trial Court. 7. It is settled law that for the Appellate Court to remand a matter it is necessary to set aside the judgment and decree under appeal and the same can be done only when there are justifiable grounds available for doing so. If the only ground on which the matter has been remanded to the trial Court was to refer the Exts-2, 3 and 4 for scientific examination, the said exercise could have very well been carried out by the Appellate Court itself on a proper application being made by the interested party. The same could not have been a ground to set aside the judgment and decree of the trial Court, more so, when the plaintiff did not make any such prayer for scientific examination of the Exts-2, 3 and 4. In such view of the matter, the learned First Appellate Court committed manifest illegality in setting aside the judgment and decree under appeal without recording any justifiable reason for doing so. 8. In view of the above, the judgment dated 10.09.2012 passed by the learned First Appellate Court is not sustainable in law and the same is hereby set aside. 9. Since the learned First Appellate Court did not either consider or adjudicate any of the contentious issues involved in the first appeal bearing No. Title Appeal No. 9/2007 while delivering the judgment dated 10.09.2012, hence, the First Appellate Court would now decide the Appeal as well as the Cross-Objection filed by the parties on their merits. In the event of any application being made by the parties to the proceeding for reference of any document for scientific examination in accordance with law the same will be considered and disposed of on merit by the learned Appellate Court. The Second Appeal is allowed and shall stand disposed of with the aforesaid directions. Having regard to the facts and circumstances of the case, there would be no order as to cost.