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2017 DIGILAW 1776 (BOM)

Manoj Madhukar Gadge v. Dattatraya

2017-08-31

A.S.CHANDURKAR

body2017
JUDGMENT : 1. Admit. 2. Heard finally with consent of the learned Counsel for the parties on the following substantial questions of law: (1) Whether the suit was barred by the law of limitation prescribed under Article 54 of the Limitation Act? (2) Whether the judgment of the first appellate Court meets the requirements of the law laid down by the Hon'ble Supreme Court in para 15 of its judgment in Santosh Hazari Versus Purushottam Tiwari (2001) 3 SCC 179 ? 3. The appellants are the original defendants in the suit for specific performance passed by the respondent. It is the case of the respondent that on 21-1-2002 an agreement was entered into by the respondent – plaintiff with the predecessor of the appellants – Madhukar. By said agreement, the house property owned by Madhukar was agreed to be sold for a consideration of Rs.50,000/-. Amount of Rs.15,000/- was paid as earnest amount. The sale deed could not be executed till 14-5-2005 and therefore further amount of Rs.13,000/- was paid. Madhukar executed a possession deed on said date. Thereafter the plaintiff renovated the suit property. On 14-1-2007 said Madhukar expired. The legal heirs of Madhukar forcibly took possession and hence, the suit came to be filed for specific performance on 352008. 4. In the written statement a stand was taken that the parties were related and Madhukar had obtained hand loan from the plaintiff. As said Madhukar was in need of money same was borrowed from the plaintiff. The plaintiff was also entrusted with the work of repairing the house. It was thus prayed that in absence of any such agreement of sale, the suit was liable to be dismissed. 5. The plaintiff examined himself. He was not cross-examined. The defendants did not lead any evidence. The trial Court held that the plaintiff had proved the agreement of sale and that he was ready and willing to perform his part of the agreement. In absence of any evidence being led by the defendant the case of the plaintiff was accepted and decree for specific performance was passed. The legal heirs of the original defendant Madhukar filed appeal. In that appeal, a prayer was made for remanding the proceeding to the trial Court as the defendants could not lead any evidence. An opportunity was sought in that regard. The legal heirs of the original defendant Madhukar filed appeal. In that appeal, a prayer was made for remanding the proceeding to the trial Court as the defendants could not lead any evidence. An opportunity was sought in that regard. The appellate Court after considering the material on record held that sufficient opportunity was granted to the defendants before the trial Court to defend the suit but the said parties did not participate before the trial Court. After examining the findings on record, the appeal came to be dismissed. Being aggrieved this Second Appeal has been filed. 6. Shri U.K. Bisen, learned Counsel for the appellant submitted that the defendants did not have sufficient opportunity to contest the suit before the trial Court. The proceedings in the suit that was initially filed at Nagpur were subsequently transferred to the Court at Kalmeshwar. Though a Counsel was appointed to look after the matter, he did not participate in the proceedings. The defendants in absence of any intimation from their Counsel could not lead any evidence before the trial Court. It was submitted that in this backdrop a request was made before the appellate Court to remand proceedings for grant of further opportunity. It was submitted that the appellate Court in a cursory manner merely considered the findings of the trial Court and dismissed the appeal. It was submitted that such exercise of jurisdiction by the appellate Court was contrary to the law laid down by the Hon'ble Supreme Court in Santosh Hazari Vs. Purushottam Tiwari (2001) 3 SCC 179 . As per said law, it was necessary for the appellate Court to have considered all the findings recorded by the trial Court and it thereafter ought to have given independent findings on the same. Reference was made to the memorandum of appeal filed before the first appellate Court to demonstrate that various grounds for challenging the decree had been raised. However, merely by considering the aspect of the remand the appeal came to be dismissed. The learned Counsel also placed reliance on the decisions in B.V. Nagesh and anr. vs. H.V. Sreenivasa Murthy (2010) 13 SCC 530 and Vinod Kumar vs. Gangadhar 2015(3) Mh.L.J. 547. It was also urged that the suit was barred by limitation inasmuch as the agreement dated 21-1-2002 was sought to be specifically enforced in the year 2008. 7. The learned Counsel also placed reliance on the decisions in B.V. Nagesh and anr. vs. H.V. Sreenivasa Murthy (2010) 13 SCC 530 and Vinod Kumar vs. Gangadhar 2015(3) Mh.L.J. 547. It was also urged that the suit was barred by limitation inasmuch as the agreement dated 21-1-2002 was sought to be specifically enforced in the year 2008. 7. Shri P.V. Vaidya, learned Counsel for the respondent – original plaintiff supported the impugned judgment. It was submitted that sufficient opportunity was granted to the defendants to lead evidence before the trial Court. Despite this, the defendants did not lead any such evidence and therefore, the trial Court was justified in proceeding with the matter. This fact was evident from the record. It was then submitted that before the appellate Court the only arguments raised were with regard to lack of opportunity before the trial Court on the basis of which remand was sought. The merits of the findings recorded by the trial Court were not contested. He referred to paragraph 6 of the judgment of the first appellate Court in which this aspect was referred to. According to him, merely raising grounds in the memorandum of appeal was not sufficient and said grounds ought to have been argued before the appellate Court. He submitted that there was no challenge to the observations of the appellate Court that the merits of the dispute had not been touched. He therefore submitted that the appellate Court did not commit any error in dismissing the appeal. In support of his submissions, the learned Counsel placed reliance on the decisions in C.M. Arumugam vs. S. Rajgopal (1976) 1 SCC 863 , Cosmmic Dye Chemical vs. Collector of Central Excise, Bombay (1995) 6 SCC 117 , Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 and ThanikkudamW Bhagwati Mills vs. Reena Ravindra Khona and others 2007(4) ALL MR 504. It was then submitted that the suit as filed was within limitation. He referred to the possession receipt at Exhibit 27. The burden to prove that the suit was barred by limitation was on the defendants which was not discharged. Hence, it was submitted that no interference with the impugned judgment was called for. 8. I have heard the learned Counsel for the parties at length and I have perused the material placed on record. The burden to prove that the suit was barred by limitation was on the defendants which was not discharged. Hence, it was submitted that no interference with the impugned judgment was called for. 8. I have heard the learned Counsel for the parties at length and I have perused the material placed on record. The same indicates that after the plaintiff led his evidence, there was no cross examination on the part of the defendants. Thereafter the plaintiff closed his evidence and the suit was fixed for evidence of the defendants. The defendants failed to lead evidence as a result of which the trial Court on the basis of evidence on record decreed the suit. This decree was challenged in appeal. The appeal memo indicates reference to various grounds as raised for challenging the decree of the trial Court. The appellate Court in paragraph 6 of its judgment has observed thus: “6................................................................................ .................................................................................. Learned counsel for the defendants has not stated anything in respect of the Agreement of Sale vide at Exh.26 and the Possession receipt vide at Exh. 27. He has not touched the merits of the civil suit nor pointed out any error, mistake on the part of the trial Court.” 9. Thereafter in paragraph 7 it has further observed as under: “7................................................................................ .................................................................................. The contention of learned counsel for the appellant seems to be that instead of touching to the merits, he submitted to remand the matter and give an opportunity of the evidence.” 10. The appellate Court then considered the ground raised by the defendants regarding lack of opportunity for leading evidence. It found that despite grant of sufficient opportunity, the defendants failed to lead evidence before the trial Court. They had also failed to cross examine the plaintiff. It was noted that from 20-7-2013 till 28-2-2014, opportunity was given to the defendants to cross-examine the plaintiff and lead evidence. Despite this, the said opportunity was not availed. The appellate Court then considered the judgment of the trial Court and in paragraphs 9 and 11, it held that the evidence on record was sufficient to reach the conclusion that the plaintiff was ready and willing to perform his part of the contract. On that basis, the said decree was maintained and the appeal came to be dismissed. 11. The appellate Court then considered the judgment of the trial Court and in paragraphs 9 and 11, it held that the evidence on record was sufficient to reach the conclusion that the plaintiff was ready and willing to perform his part of the contract. On that basis, the said decree was maintained and the appeal came to be dismissed. 11. While considering the question as to whether the judgment of the first appellate Court was in accordance with the law laid down by the Hon'ble Supreme Court in Santosh Hazari (supra), it would be necessary to refer to some earlier decisions of the Hon'ble Supreme Court. In Thakur Sukhpalsing Vs. Thakur Kalyansingh AIR 1963 SC 146 , the question that came up for consideration was whether the appellate Court was bound to decide an appeal on merits on the basis of the material on record though the appellant appears at the hearing but does not address the Court. In that case, when the appeal had come up for hearing before the High Court, the Counsel representing the appellant stated that he had no instructions to represent the appellant. The appellant did not address the Court and the High Court, therefore, dismissed the appeal. After considering various provisions of the Code, it was held that very often numerous grounds of objections are raised in the memorandum of appeal. They are however not argued or pressed at the hearing. It is for the appellant to raise points against the judgment. It was observed that the appellant could not raise objections in memorandum of appeal and leave it to the appellate Court to give its decision on those points after going through the record and determining the correctness thereof. It was further observed that it was not for the appellate Court itself to find out what could be the points for determination and then proceed to give a decision on those points. It was thus held that if the appellant submitted nothing for its consideration, the appellate Court could decide the appeal without reference to any proceedings of the Courts below and while doing so, it could simply say that the appellant had not urged anything that would show that the judgment and decree under appeal was wrong. It was thus held that if the appellant submitted nothing for its consideration, the appellate Court could decide the appeal without reference to any proceedings of the Courts below and while doing so, it could simply say that the appellant had not urged anything that would show that the judgment and decree under appeal was wrong. In the aforesaid backdrop, the contention that the High Court ought to have decided the appeal after going through the record of the case, the judgment of the Court below and should have complied with the provisions of Order XLI Rule 31 of the Code of Civil Procedure, 1908 when the appellant did not address the Court was repelled. 12. In Cosmic Dye Chemicals (supra), the Hon'ble Supreme Court declined to deal with certain grounds raised in the appeal memo on the ground that the Counsel for the appellant had not chosen to press the same. Thus, from the aforesaid legal position, it can be safely held that mere raising of various grounds in the memorandum of appeal is not sufficient. Such grounds ought to be urged and argued before the Court whose decision has been impugned. If certain grounds though raised in the memorandum of appeal are not pressed then it is not obligatory on the Court deciding the proceeding to deal with the same. Refusal to deal with such points that are not argued or pressed cannot be the basis for holding that the proceedings have not been satisfactorily decided. 13. It is also necessary at this stage to note that in certain cases the Court while deciding the proceedings observes that though various grounds were raised in the memorandum of appeal, they were not pressed and hence said grounds have not been considered. If the appellant feels that the above position has been incorrectly recorded by the said Court, it is for said party to immediately bring said fact to the notice of that Court to enable the error, if any, to be corrected. This position is clear from the judgment of the Hon'ble Supreme Court in State of Maharashtra v. Ramdas Shrinivas Nayak and anr, AIR 1982 SC 1249 . It was held therein that the statements recorded in the judgment as to what transpired in Court have to be accepted. These statements cannot be permitted to be contradicted by statements at the bar or by any other evidence. It was held therein that the statements recorded in the judgment as to what transpired in Court have to be accepted. These statements cannot be permitted to be contradicted by statements at the bar or by any other evidence. The course to be adopted if a party thinks that the happenings in the Court have been wrongly recorded in a judgment is that it is incumbent upon the said party while the matter is still fresh in the mind of the Judge to call the attention of the very Judge who made that order to the effect that the statement made therein was in fact an error. It was held that the aforesaid was the only way to have the record corrected and if no such steps are taken then the matter must necessarily end there. The aforesaid legal position has been followed in T. Bhagawati Mills (supra). 14. If the judgment of the appellate Court in the backdrop of aforesaid legal position is examined, it is clear that the appellate Court has observed in clear terms that on behalf of the defendants the merits of the adjudication of the civil suit were not touched nor was any error or mistake on the part of the trial Court pointed out. Thus, from the record it is clear that the only submission made before the appellate Court was with regard to absence of opportunity for leading evidence before the trial Court and hence the prayer for remand. The appellate Court has thereafter perused the record as observed in paragraph 9 and after considering the same has held that the findings given by the trial Court appeared to be legal and proper. In the aforesaid facts when the findings recorded by the trial Court were not sought to be attacked by the defendant before the appellate Court though the grounds in that regard were duly raised in the memorandum of appeal, it cannot be said that the appellate Court committed an error by failing to deal with those grounds despite the same not being urged. This exercise by the appellate Court cannot be said to be in contravention of the provisions of Order XLI Rule 31 of the Code. This exercise by the appellate Court cannot be said to be in contravention of the provisions of Order XLI Rule 31 of the Code. The law as laid down in Santosh Hazari (supra) to the effect that the judgment of the appellate Court must reflect its conscious application of mind and record findings supported by reasons on all the issues arising along with the contentions put-forth and pressed by the parties for decision of the appellate Court have to be read in that context. In other words, the contentions put-forth and pressed by the parties for decision of the appellate Court are required to be dealt with and this exercise must reflect conscious application of mind of the appellate Court. The decision in D.V. Nagesh and another, Shashidhar and Vinodkumar (supra) on the scope and powers conferred under Section 96 of the Code read with provisions of Order XLI Rule 31 of the Code contemplate entertainment and consideration of the points urged for determination. In other words, failure to consider the grounds urged by the appellant and the respondent would result in failure to properly exercise the powers conferred by provisions of Order XLI Rule 31 of the Code. In the present facts, I do not find that the ratio of these decisions could be made applicable as urged by the appellants. Substantial question of law no.2 is answered by holding that the judgment of the first appellate Court satisfies requirements of law as laid down by the Hon'ble Supreme Court in Santosh Hazari (supra). 15. In so far as the substantial question of law no.1 is concerned, it is to be noted that the question whether the suit for specific performance was barred by the law of limitation is a mixed question of law and facts. In the plaint it was pleaded that the agreement of sale was entered into on 21-1-2002 by paying earnest amount of Rs.15,000/-. As the sale deed could not be executed, Madhukar further accepted an amount of Rs.13,000/- on 14-5-2005 from the plaintiff. He also executed a possession receipt – Exhibit 27 and also handed over the possession of the suit house. After the death of Madhukar on 14-1-2007, it is pleaded that his legal heirs tried to encroach in the premises. Hence, suit came to be filed on 3-5-2008 seeking specific performance of the agreement. He also executed a possession receipt – Exhibit 27 and also handed over the possession of the suit house. After the death of Madhukar on 14-1-2007, it is pleaded that his legal heirs tried to encroach in the premises. Hence, suit came to be filed on 3-5-2008 seeking specific performance of the agreement. In the written statement the agreement itself was denied. It was pleaded that the transaction was in the nature of borrowing of hand loan and that by fabricating documents the relief of specific performance was sought. As noted above, the plaintiff after examining himself was not subjected to any cross-examination. The defendants also did not lead any evidence. Considering the nature of documentary evidence placed on record by the plaintiff, I find that the issue of limitation in these facts is a mixed question of fact and law. The suit has been filed within three years from execution of the possession receipt on 14-5-2005 as per Exhibit-27. The trial Court did not frame any issue on limitation. The appellants did not choose to challenge the findings on merit as recorded by the trial Court. Thus, if the question of limitation was not tried by the trial Court and same was not urged before the appellate Court, then the appellant cannot be permitted to urge this ground for the first time in the second appeal especially when the same is a mixed question of fact and law. 16. In C.M. Arungam (supra), a question of fact arising in the proceedings was not challenged before the High Court. The High Court, therefore, acting on the concession refrained from examining the question on merits. Said question was sought to be reagitated before the Hon'ble Supreme Court. In that context it was held that having failed to raise the said question before the High Court, the said party could not be permitted to raise it before the Hon'ble Supreme Court. Thus, in view of aforesaid, I am not inclined to go into substantial question of law No.1 on the ground that it is a mixed question of law and fact and that this ground was not pressed by the appellants before the first appellate Court. 17. Thus, as a result of the answer to the aforesaid substantial questions of law, I do not find any reason to interfere with the impugned judgment. 17. Thus, as a result of the answer to the aforesaid substantial questions of law, I do not find any reason to interfere with the impugned judgment. The Second Appeal is accordingly dismissed with no order as to costs.