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2016 DIGILAW 3688 (ALL)

Mitthan Lal v. Har Devi

2016-11-10

RAGHVENDRA KUMAR

body2016
JUDGMENT Raghvendra Kumar, J. – Heard learned counsel for the appellants and learned counsel for the respondents. 2. Initially a suit was filed on behalf of Mitthan Lal against Smt. Har Devi and others for the relief of cancellation of sale deed dated 8.4.1992 The suit NO. 1055 of 1992 was decided by the Add. Civil Judge ( Jr. Division), Room No.4, District Etah whereby the suit of the plaintiff was dismissed. Being aggrieved by the aforesaid dismissal of the suit, the plaintiff preferred first appeal before the District Judge, Etah, The District Judge, vide its order dated 27.4.2016 dismissed the appeal of the plaintiff in negative. Being aggrieved by the aforesaid judgement and order of the court below, the instant appeal is before this court. Heard learned for the appellant and learned counsel for the respondent. 3. It has been submitted by learned counsel for the appellant that the plaintiff has challenged the judgement of the trial court as well as the first appellate court. The sale deed in question was assailed on the ground that Mitthan Lal who has executed the sale deed in favour of Smt. Har Devi (Now deceased) was not mentally sound as such he was not capable of executing the deed. Further ground of assail was that the sale reconsideration was not passed and the deed was fabricated. Learned counsel for the appellant further submitted that he moved an application under Order 41, Rule 27 C.P.C. before the first appellate court for accepting the evidence with respect to the mental condition of Mitthan Lal which was rejected by the first appellate court and the same order was challenged before this Hon'ble Court and the learned Coordinate Bench of this Court considering the order to be interlocutory rejected the prayer of the plaintiff. It has further been submitted that the learned first appellate court has failed to comply with the provisions contained under Order 41, Rule 31 C.P.C. which are mandatory in nature. 4. Per cantra, learned counsel for the respondent has submitted that the learned trial court has appraised the evidence in the light of pleadings and then recorded its finding and dismissed the suit. The first appellate court has also considered the pleas raised for cancellation of the deed and accordingly dismissed the appeal. 5. 4. Per cantra, learned counsel for the respondent has submitted that the learned trial court has appraised the evidence in the light of pleadings and then recorded its finding and dismissed the suit. The first appellate court has also considered the pleas raised for cancellation of the deed and accordingly dismissed the appeal. 5. For better appreciation of the judgement of the appellate court, it appears expedient to extract the provision of Order 41, Rule 31C.P.C. which is herein below: 31. Contents, date and signature of judgment.- The judgment of the shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which entitled, and shall at the time that it is pronounced be signed and dated by the Judges concurring there in. HIGH COURT AMENDMENTS Allahabad. - At the end of the rule, substitute a semi-colon for the stop and add the following : "Provided that where that presiding Judge pronounces his judgment by shorthand-writer in open court, the transcript of the judgment so pronounced such revision as may be deemed necessary, be signed by the Judge and shall of its pronouncement." (13-1-1939). 6. Learned counsel for the appellant has placed reliance upon the decision of Hon'ble Apex Court, passed in the case of Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan reported in 2002 Law Suit (SC) 1104 in which the Hon'ble Apex Court has made the observation that "Order 41, Rule 31 of the C.P.C. casts an obligation on the author of the appellate judgement to state the points for determination, the decision thereon, the reasons for the decision" 7. Learned counsel for the appellant has also placed reliance upon the judgment of this Court, passed in the case of Ved Ram v. Harish Chandra, reported in 2004 Law suit (All) 768, wherein the Cordinate Bench of this Court has made the observation that "Looking at the plain language of the section, it is clear that failure to comply with this provision would not be a mere irregularity but would render the judgement nugatory" 8. From the perusal of the legislative provision as well as observation contained in the aforesaid proposition of law, it is ample clear that the Order 41, Rule 31 C.P.C. is in the nature of procedural safeguard. From the perusal of the legislative provision as well as observation contained in the aforesaid proposition of law, it is ample clear that the Order 41, Rule 31 C.P.C. is in the nature of procedural safeguard. It is required to be adhered by the first appellate court. The legislature in its wisdom has incorporated the safeguard so as to avoid the possibility of injustice being committed by the first appellate court in disposing of the controversy before it. 9. During the course of submissions, learned counsel for the appellant fairly conceded that there is no specific pleading about the mental condition of the deceased, Mitthan Lal. Even if it is presumed that the evidence with respect to the mental condition of the deceased Mitthan Lal would have been taken on record by the first appellate court, it would have been of no avail to the plaintiff-appellant since the law on this point is ample clear and has been established by now that any evidence beyond pleadings can not be considered by the court. 10. The evidence on the mental condition has been well considered by the trial court. the trial court has also considered the fact that Mitthan Lal moved application under Order 32, Rule 12 C.P.C. praying therein for discharge of next friend. This is indicative of the fact that Mitthan Lal was conscious enough that the suit should be pursued by him. 11. The legal position is settled that any evidence with respect to the fact if do not find place in the pleadings of parties, is of no avail. The evidence led if any in the absence of pleading is of no consequence. Both courts below have passed a reasoned judgement after appreciating the pleadings and the evidence of the parties. There is concurrent finding on the factual aspect of the mental condition of Mitthan Lal. Both courts below have not committed any mistake in reading the evidence and recording the findings. The inference drawn by the courts below is substantiated from the material available on record. 12. There is concurrent finding on the factual aspect of the mental condition of Mitthan Lal. Both courts below have not committed any mistake in reading the evidence and recording the findings. The inference drawn by the courts below is substantiated from the material available on record. 12. The law has been settled that the interference by the High court, in exercise of jurisdiction, in Second Appeal, would be permissible when the finding recorded by the court below suffers from perversity or based on surmises and conjuncture or where there is misreading of the evidence or findings have been recorded where no evidence has been led to that effect. 13. In view of the aforesaid discussions, no substantial question of law arises. The appeal is bereft of merit and it is accordingly dismissed. Appeal Dismissed.