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2021 DIGILAW 109 (JK)

Qazi Arshid Hussain v. Farooq Ahmad Wani

2021-03-24

SANJAY DHAR

body2021
Judgment Sanjay Dhar, J.—The instant appeal is directed against the judgment and decree dated 25.07.2005 passed by the learned Principal District Judge, Anantnag, whereby the suit of the respondents (hereinafter referred to as the ‘plaintiffs’) has been decreed against the appellants (hereinafter referred to as the ‘defendants) and the plaintiffs have been held entitled to recover an amount of Rs. 7.00 lacs along with interest @ 5% per annum and costs of the suit from the defendants. 2. Briefly stated the facts leading to filing of the instant appeal are that the plaintiffs filed a suit for recovery of an amount of Rs. 7.00 lacs against the defendants with a relief of decree for settlement of accounts and perpetual injunction. The case of the plaintiffs before the Trial Court was that they along with one-Qazi Abdul Salam were running partnership business of extracting, lifting and forwarding of Mini Forest Produce (MFP). The partnership was in equal shares and the business was being run by the partners under the name and style of M/s Friends Dhoop and Aggarbatti Works Qazigund. 3. It was averred that after running the business for some time, certain disputes arose between the partners, which resulted in filing of a suit by Dr. Qazi Abdul Salam. During the pendency of the aforesaid suit, the said Dr. Qazi Abdul Salam is stated to have died on 11.04.2003. The deceased partner is survived by the defendants and other legal heirs. It appears that after the death of the above named partner, defendants in terms of the covenants of the Partnership Deed opted to join the partnership business. The dispute between the partners, i.e., the defendants and plaintiffs is stated to have been resolved by execution of a Relinquishment Deed dated 30.06.2003, registered on 01.07.2003, whereby the plaintiffs relinquished their rights in favour of the defendants. 4. It is alleged in the plaint that at the time of execution of the Relinquishment Deed, the accounts between the parties could not be settled, as such, another agreement was executed by the partners, which was registered with Sub-Registrar, Qazigund on 01.07.2003, whereunder it was agreed by the parties that the accounts would be settled by 15.08.2003 and it was further agreed that the defendants would pay a sum of Rs. 7.00 lacs to the plaintiffs, which amount was due to be recovered by the plaintiffs from M/S Om Parkash of Amritsar. 5. 7.00 lacs to the plaintiffs, which amount was due to be recovered by the plaintiffs from M/S Om Parkash of Amritsar. 5. It is further averred that despite execution of the Deed of Relinquishment and the aforestated agreement, the defendants did not settle the accounts and they did not pay an amount of Rs. 7.00 lacs to the plaintiffs before the stipulated date, i.e., 15.08.20003. It is, in these circumstances, that the plaintiffs approached the learned Trial Court by way of a suit for recovery of an amount of Rs. 7.00 lacs from the defendants and for relief of a decree of settlement of accounts with a perpetual injunction, restraining the appellants/defendants from lifting or forwarding any Mini Forest Produce (MFP) till accounts between the parties are settled. 6. A perusal of the Trial Court record reveals that the defendants had put in their appearance before the Trial Court and the parties sought time to enter into negotiations with each other. After appearing for some dates, the defendants stopped appearing in the case and the learned Trial Court vide its order dated 24.05.2004 proceeded ex parte against the defendants and directed the plaintiffs to lead ex parte evidence. It is pertinent to mention here that from the Trial Court record, it comes to the fore that the defendants had filed objections to the application for grant of interim injunction, but no written statement was filed by them in the main suit. In their objections, the defendants primarily took a stand that with the execution of Relinquishment Deed by the plaintiffs in favour of the defendants, the accounts between the partners stood settled amicably and peacefully and as such, no cause of action was left with the plaintiffs to file the suit. 7. The plaintiffs in order to prove their case besides examining plaintiff No. 1, have examined five more witnesses, namely, PW-Haji Ghul Mohammad Rather, PW-Ghulam Qadir Malik, PW-Mohd. Yaqoob Wani, PW-Mohd. Ramzan Dar and PW- Mushtaq Ahmed. 8. The learned Trial Court has, after quoting the evidence led by the plaintiffs, come to the conclusion that the plaintiffs have succeeded in establishing their claim to the extent of recovery of Rs. 7.00 lacs against the defendants, but have failed to substantiate their claim regarding settlement of accounts and grant of decree for perpetual injunction. Accordingly, decree for recovery of an amount of Rs. 7.00 lacs against the defendants, but have failed to substantiate their claim regarding settlement of accounts and grant of decree for perpetual injunction. Accordingly, decree for recovery of an amount of Rs. 7.00 lacs with interest @ 5% per annum along with costs, has been passed in favour of plaintiffs and against the defendants, which is under challenge before this Court. 9. The defendants have challenged the impugned judgment and decree on the grounds that the documents relied upon by the learned Trial Court were not placed in original on record of the said Court and the learned Trial Court has erred in relying upon photo copies of the documents like Relinquishment Deed dated 30.06.2003 and Agreement dated 27.06.2003, which is contrary to the provisions contained in the Evidence Act; that the learned Trial Court has simply decreed the suit in favour of the plaintiffs without bothering to see as to whether the plaintiffs have actually been successful in establishing their claims against the defendants by observing that case of plaintiffs has remained unrebutted and as such, they are entitled to the relief; that there is non-joinder of the necessary parties, inasmuch as, all the legal heirs of deceased-Dr. Qazi Abdul Salam-the father of the defendants, were not made parties to the suit; that the covenant regarding payment of money in agreement dated 30.06.2003, which has been relied upon by the learned Trial Court while passing the impugned judgment and decree, is conditional upon the settlement of accounts and as such, the money could not have been recovered from the defendants on the basis of the said covenant without settlement of the accounts; that there are contradictions between the evidence led by the plaintiffs and their pleadings and that the impugned judgment and decree is a result of lack of application of mind. 10. I have heard learned counsel for the parties and perused the impugned judgment/decree, the grounds of appeal and the record of the learned Trial Court. 11. A perusal of the plaint filed by the plaintiffs before the Trial Court reveals that the claim of the plaintiffs against the defendants is based upon the covenants of the agreement dated 27.06.2003, registered with Sub-Registrar, Qazigund on 01.07.2003. According to the plaintiffs, there is a covenant in the said agreement, which entitles the plaintiffs to recover an amount of Rs. According to the plaintiffs, there is a covenant in the said agreement, which entitles the plaintiffs to recover an amount of Rs. 7.00 lacs from the defendants, which amount the defendants had agreed to pay to the plaintiffs. 12. It is contended by the defendants that the documents relied upon by the learned Trial Court while passing the impugned judgment/decree, were not placed in original before the Trial Court and as such, the same could not have been relied upon. However, the Trial Court record shows that the original agreement dated 27.06.2003 is on record of the file and in fact not only the plaintiff-Farooq Ahmad Wani, but even marginal witness to the said document, namely, PW- Haji Ghul Mohammad Rather and the scribe PW-Ghulam Qadir Malik have testified about the execution of the said document by the parties. Otherwise also, the document in question has been registered before the Sub-Registrar, Qazigund and there is a presumption of due execution attached to it. In the absence of any evidence in rebuttal, it has to be held that the document in question, i.e., EXPWGQ was executed by the parties. 13. The question, which falls for determination is as to what was agreed upon by the parties vide the aforesaid document. According to the plaintiffs, the defendants had agreed to pay an amount of Rs. 7.00 lacs to them, which was due to the firm from M/S Om Parkash Ramesh Kumar, Jeth Mandi, Amritsar. The plaintiff-Farooq Ahmad Wani and his witnesses, particularly, marginal witness to the document (EXPWGQ), namely, Haji Ghul Mohammad Rather has stated that the defendants had agreed to pay an amount of Rs. 7.00 lacs by 15.08.2003. PWs-Haji Ghul Mohammad Rather and Ghulam Qadir Malik have also stated that at the time of execution of the document EXPWGQ, the Lala from Amritsar, which probably is the person, who owed an amount of Rs. 7.00 lacs to the partnership firm of the parties, was also present on the spot. However, the said person is not executant of the document. 14. Coming to the actual expressions used in the agreement EXPWGQ, which are relevant for the determination of the issue at hand, the same convey that M/S Om Parkash of Amritsar owes an amount of Rs. However, the said person is not executant of the document. 14. Coming to the actual expressions used in the agreement EXPWGQ, which are relevant for the determination of the issue at hand, the same convey that M/S Om Parkash of Amritsar owes an amount of Rs. 7.00 lacs towards the joint account of the first party, i.e., plaintiffs and the responsibility in this regard has been owned by the second party, i.e., defendants and the amount is to be retained by the said party. The agreement further goes on to provide that the accounts pertaining to business of first party with late Qazi Abdul Salam would be settled by the parties amicably before the panchayat and whatever will be decided by the panchayat, the same would be acceptable to both the parties. It is also provided that these accounts will be settled by 15.08.2003. 15. The aforesaid covenants of the agreement nowhere provide that the defendants would pay an amount of Rs. 7.00 lacs to the plaintiffs and that they would recover the same from M/S Om Parkash of Amritsar. It only provides that responsibility to recover the said amount would be that of the defendants and the amount would become the property of the defendants. There was nothing on record before the learned Trial Court to show that the amount of Rs. 7.00 lacs was actually recovered by the defendants from the M/S Om Parkash of Amritsar. Although the witnesses have stated that the Lala from Amritsar was present on spot at the time of execution of the documents, yet the said Lala not signed the document-EXPWGQ. Therefore, the covenant cannot be enforced even against M/S Om Parkash. 16. Although the plaintiff-Farooq Ahmad Wani and his witnesses have stated that the defendants had agreed to pay an amount of Rs. 7.00 lacs to the plaintiffs in their presence at the time of execution of the aforesaid document, i.e., EXPWGQ, yet no such term, condition or covenant is incorporated in the document-EXPWGQ. Section 92 of the Evidence Act clearly provides that when the terms of any agreement have been reduced into writing, no evidence of any oral agreement or statement is admissible as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms. Section 92 of the Evidence Act clearly provides that when the terms of any agreement have been reduced into writing, no evidence of any oral agreement or statement is admissible as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms. Therefore, once it is shown that the written agreement-EXPWGQ did not provide for payment of Rs. 7.00 lacs by the defendants to the plaintiffs by 15.08.2003, as claimed by the plaintiffs, the same cannot be read into it on the basis of oral statements of the plaintiffs and their witnesses. The matter becomes further clear when we have a look at the covenants of the Relinquishment Deed dated 30.06.2003, which is a document admitted by the parties. The relevant covenants are reproduced as under:- i. That the parties on the 1st part shall have no interest or concern with the business of M/s Friends/Dhoop and Agarbati works which henceforth shall be the sole proprietary concern of the parties on the 2nd part of this deed. ii. That the parties on the 2nd part shall be the sole partners in equal shares of the partnership concern of M/s Friends Dhoop and Agarbati Works. iii. That all rights and liabilities of the partnership concern of M/s Friends Dhoop and Agarbati Works shall now be equally shared by the parties on the 2nd part of this deed who are at liberty to execute a separate partnership deed in this regard. iv. That the parties on the 1st part to this deed are running their business of collecting, lifting and forwarding of mini Forest Produce and the said business is being run by them under the name and style of MIs Lucky Dhoop Industries and the parties on the 2nd part shall have no interest or concern with the said firm. v. That the parties on the 2nd part are now the sole surviving partners of the firm M/s Friends Dhoop and Agarbati Works having entered into the shoes of their deceased father Dr. Qazi Ab. Salam and the parties on the 1st part are having no right to interfere or meddle with the business of M/s Friends Dhoop and Agarbati works and are absolved of all the liabilities. vi. The parties on the 1st part have agreed to relinquish their rights as partners. Qazi Ab. Salam and the parties on the 1st part are having no right to interfere or meddle with the business of M/s Friends Dhoop and Agarbati works and are absolved of all the liabilities. vi. The parties on the 1st part have agreed to relinquish their rights as partners. Of the firm M/S Friends Dhoop and Agarbati Works in favour of the parties on the 2nd part. As they have settled all the accounts. vii. That the parties on the 2nd part are at liberty to collect, lift and forward any mini Forest Produce in the name of the firm M/s Friends Dhoop and Agarbati works that is already allotted to the firm or shall be allotted to the firm in future. viii. That all the money/payments due to the firm M/S Friends Dhoop and Agarbati works shall be received by the parties on the 2nd part to this deed without any intervention on the part of the parties on the 1st part. ix. That the suit captioned as Qazi Ab. Salam V/S Farooq Ahrnad Wani and another pending disposal before the Hon’ble Court of District Judge, Anantnag shall be deemed to have been withdrawn. 17. From a perusal of the afore-quoted covenants, it is clear that upon execution of the Relinquishment Deed, the parties had settled the accounts between themselves and the plaintiffs had relinquished their rights as partners of the firm in favour of the defendants. In the Relinquishment Deed, there is no mention about any outstanding amounts or liabilities, to be paid/discharged by the defendants towards the plaintiffs. The document is dated 30.06.2003, whereas the agreement on the basis of which the suit has been filed by the plaintiffs is dated 27.06.2003. When we read the covenants of the two document conjointly, it becomes clear that the parties had settled the accounts qua their business concern and the plaintiffs had relinquished their interests in the partnership business in favour of the defendants and it is in that context that in the agreement-EXPWGQ, the responsibility to recover dues of the firm from M/S Om Parkash was taken upon themselves by the defendants. A harmonious construction of the covenants of the two documents, i.e., Relinquishment Deed dated 30.06.2003 and the Agreement-EXPWGQ would lead us to this conclusion only. 18. A harmonious construction of the covenants of the two documents, i.e., Relinquishment Deed dated 30.06.2003 and the Agreement-EXPWGQ would lead us to this conclusion only. 18. In the face of the aforesaid discussion, it becomes clear that the learned Trial Court while relying upon the oral evidence with regard to terms of agreement-EXPWGQ, has landed itself into error and arrived at an erroneous conclusion. 19. Even otherwise, the impugned judgment and decree passed by the learned Trial Court is cryptic in nature and the same is devoid of any reasons. This is clear from the perusal of the impugned judgment, particularly, the portion thereof, which relates to reasoning. The said portion of the impugned judgment reads as under:- “Heard and considered the arguments and the record on the file. The statements of the witnesses produced by the plaintiffs in ex parte remain unrebutted as the defendants have chosen not to appear and participate in the proceedings. The plaintiffs have succeeded in establishing their claim in ex parte to the extent of recovery of rupees seven lacs from the defendants but have failed to substantiate their claim regarding settlement of accounts and the grant of a decree for perpetual injunction. The result therefore is that the suit of the plaintiffs for recovery of rupees seven lacs with costs from the defendants is decreed in ex parte against the defendants only. Decree sheet be prepared and the file after its due completion consigned to records.” 20. From the above, it is clear that the suit has been decreed by the learned Trial Court only because statements of the witnesses produced by the plaintiffs in ex parte have remained un-rebutted and because the defendants have not chosen to participate in the proceedings. 21. As is evident from the discussion made herein before, the plaint and the documents attached thereto itself showed that the suit involved serious disputed questions of fact and it also involved interpretation of the terms of the covenant of the agreement-EXPWGQ, which formed the basis of the claim of the plaintiffs. Unfortunately, the learned Trial Court did not consider these issues and proceeded almost blindly to pass a decree in favour of the plaintiffs merely because the defendants did not participate in the proceedings. This approach of the learned Trial Court is not permissible under law. Unfortunately, the learned Trial Court did not consider these issues and proceeded almost blindly to pass a decree in favour of the plaintiffs merely because the defendants did not participate in the proceedings. This approach of the learned Trial Court is not permissible under law. A plaintiff irrespective of the fact that whether or not the defendants contest the suit, unless the averments in the plaint are specifically admitted by the defendants, has to prove each and every vital fact, which entitles plaintiff to a decree by leading cogent and convincing evidence. 22. “Judgment” as defined under Section 2(9) of the Civil Procedure Code means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20 Rule 4(2) of the CPC, which provides that a judgment shall contain a concise statement of the case, the points for determination, the decision thereon and reasons for such decision. Thus, a judgment should be a self contained document, from which it should appear as to what were the facts of the case and what was the controversy, which was tried to be settled by the Court and in what manner. The process of reasoning, by which the Court came to ultimate conclusion and decreed the suit, should be reflected clearly in the judgment. 23. In the instant case, the learned Trial Court has followed the aforesaid provisions in breach and has mechanically passed the impugned judgment and decree simply on the reasoning that the ex parte evidence led by the plaintiffs has remained unrebutted without discussing as to whether the said ex parte evidence has been able to establish the facts pleaded by the plaintiffs on the touchstone of law. 24. For the foregoing discussion, the impugned judgment and decree is held to be unsustainable in law and the same is set aside. Accordingly, the appeal is allowed. The parties are left to bear their own costs. The trial Court record be sent back.