Research › Search › Judgment

Himachal Pradesh High Court · body

2022 DIGILAW 307 (HP)

Sanjeev Kumar, S/o Shri Shyam Parkash v. Suman Jain, W/o Shri Adesh Jain

2022-06-20

JYOTSNA REWAL DUA

body2022
ORDER : Caveat Petition No. 203 of 2022 Discharged. The Caveat Petition stands disposed of. CMPMO No. 210 of 2022 1. An application was moved by the petitioner under Order 41 Rule 25 read with Section 151 of Code of Civil Procedure before the learned Appellate Court with a prayer to frame additional issues and to remand the matter to the learned Trial Court for calling findings on the additional issues after taking evidence of the parties and also to direct the learned Trial Court for recording proper findings on issues No. 3 and 6. This application was dismissed on 4.4.2022. Dissatisfied, the petitioner has invoked Article 227 of the Constitution of India. Parties to the present petition are referred to hereinafter according to their status before the learned Trial Court. 2. Facts: Facts required to be noticed for the adjudication of the present petition are that: 2(i) Respondent No. 1 instituted a Civil Suit for declaration to the effect that sale deed dated 18.12.2001 executed by respondent No. 2 (original defendant No. 1) in favour of present petitioner (defendant No.2) registered at Sr. No. 517 on 18.12.2001 with Sub Registrar Shimla (Urban), Shimla, was null, void, illegal, forged, sham, fraudulent and inoperative qua the plaintiff. Further declaration was prayed to the effect that mortgage, if any, created by defendant No. 2 in favour of defendant No. 3 on the basis of the said sale deed was also void ab initio, forged, fraudulent and not binding upon the plaintiff. A permanent prohibitory injunction restraining the defendants from interfering with the peaceful possession of the plaintiff over the suit property was also prayed for. 2(ii) On 15.03.2010, learned Trial Court framed the following issues: “1. Whether mortgage, if any, created by defendant No. 2, qua the suit property or any part thereof in favour of defendant No. 3 is void-ab-initio, forged and fraudulent and inoperative and not binding upon the plaintiff as alleged? OPP 2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for? OPP 3. Whether the suit of the plaintiff is within time as alleged? OPP 4. Whether the suit of the plaintiff is not maintainable in the present form, as alleged? OPD 5. Whether the suit of the plaintiff is bad for non-joinder of necessary parties, as alleged? OPD 6. OPP 3. Whether the suit of the plaintiff is within time as alleged? OPP 4. Whether the suit of the plaintiff is not maintainable in the present form, as alleged? OPD 5. Whether the suit of the plaintiff is bad for non-joinder of necessary parties, as alleged? OPD 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 7. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD Parties led evidence in support of their respective assertions and pleadings. After appreciating the pleadings, evidence and the submissions advanced on behalf of the parties, learned Trial Court decreed the suit on 24.12.2019. The sale deed dated 18.12.2001 executed by defendant No. 1 in favour of defendant No. 2 was declared null, void, illegal, sham, fraudulent and executed due to misrepresentation. The sale deed was held to be inoperative and not binding upon the plaintiff. The mortgage, if any, created by defendant No. 2 qua the suit property in favour of defendant No. 3 was also held to be void ab initio and not binding upon the plaintiff. Since defendant No. 2 was held to have no legal right over the suit property, therefore, he was restrained from interfering in the suit property. Defendant No. 3, through its agents or representatives was also permanently restrained from taking any coercive action, taking possession or alienation, causing any obstruction, damaging or changing the nature of the suit property or any part thereof in any manner whatsoever arising on the basis of the aforesaid transaction held to be sham. 2(iii). Defendant No. 2 assailed the judgment and decree passed by the learned Trial Court by filing an appeal under Section 96 of the Code of Civil Procedure on 18.1.2020. Defendant No. 2 in his appeal, inter alia, contended that the judgment and decree passed by the learned Trial Court was unsustainable as the learned Trial Court had failed to struck proper issues arising out of the pleadings of the parties for determination. That the learned Trial Court exceeded its jurisdiction while passing impugned judgment and decree. Defendant No. 2 also contended that the findings on issues No. 3 and 6 had not been returned in accordance with law. The appeal was put to hearing. That the learned Trial Court exceeded its jurisdiction while passing impugned judgment and decree. Defendant No. 2 also contended that the findings on issues No. 3 and 6 had not been returned in accordance with law. The appeal was put to hearing. In December, 2021, defendant No. 2 (appellant before the First Appellate Court) moved an application under Order 41 Rule 25 read with Section 151 of the Code of Civil Procedure. The application was with the contention that the learned Trial Court while passing impugned judgment and decree had omitted to frame issues about the relief of declaration claimed by the plaintiff in the Civil Suit. That no issue was framed regarding declaration sought by the plaintiff in respect of sale deed dated 18.12.2001. Defendant No. 2 also contended that proper issue was not framed by the learned Trial Court in respect of the relief claimed by the plaintiff regarding permanent prohibitory injunction. Prayer was made in the application that after framing the following additional issues the matter be remanded to the learned Trial Court for giving findings thereupon: “Additional issues: 1(a). Whether plaintiff is entitled for relief of declaration to the effect that the Sale Deed No. 517 dated 18.12.2001 registered in Book No. 1 Vol. No. 44 at page 353 with the office of Sub Registrar, Shimla (Urban) executed by Janki Devi defendant No. 1 in favour of defendant No. 2 Shri Sanjeev Kumar is null & void, illegal, sham, forged and fraudulent document prepared due to misrepresentation of facts and is inoperative against the plaintiff Smt. Suman Jain? OPP 1(b) Whether plaintiff is entitled for relief of permanent prohibitory injunction against defendants claiming her right in the suit property based on sale deed executed in her favour by her predecessors in interest vide Sale Deed No. 227 dated 12.06.2009 registered in Book No. 1, Vol. No. 44 at page 353 with the office of Sub Registrar, Shimla (Urban) executed by Janki Devi defendant No. 1 in favour of defendant No. 2 Shri Sanjeev Kumar is null & void, illegal, sham, forged and fraudulent document prepared due to misrepresentation of facts and is inoperative against the plaintiff Smt. Suman Jain? OPP Defendant No. 2 also contended that learned Trial Court had not recorded its findings on Issues No. 3 and 6. OPP Defendant No. 2 also contended that learned Trial Court had not recorded its findings on Issues No. 3 and 6. That defendant No. 2 had pleaded in the written statement about the suit having not been valued properly for the purpose of Court fee and jurisdiction but the learned Trial Court had not decided the issues in accordance with law. Therefore, the matter was required to be referred back to the learned trial Court not only for calling findings on the additional issues proposed to be framed by defendant No. 2 after taking evidence of the parties but also for recording proper findings on already framed issues No. 3 and 6. The application was opposed by the plaintiff. At the insistence of defendant No. 2 (appellant before the Appellate Court), parties were heard on the application moved under Order 41 Rule 25 of the Code of Civil Procedure. Vide order dated 4.4.2022, learned Appellate Court dismissed the application. Learned Appellate Court observed that the question of determining the legality and validity of the sale deed Ext. DX-1 has already been dealt with by the learned Trial Court. The appellant has also availed opportunity to prove this document. It was further observed that the learned Trial Court has returned specific findings regarding validity of the execution of the sale deed and its impact on the relief sought by the plaintiff and that no prejudice has been caused to defendant No. 2 by non-framing of the two additional issues mentioned in the application. Regarding alleged non-returning of proper findings on the already framed issues No. 3 and 6, learned Appellate Court observed that objection in this regard has already been raised in the main appeal by defendant No. 2, therefore, question relating to the findings on issues No. 3 and 6 can be considered along with the main appeal. It is in the aforesaid background that defendant No. 2 has assailed order dated 4.4.2022 by means of present petition filed under Article 227 of the Constitution on India. 3. Contentions: 3(i) Learned counsel for defendant No. 2 (present petitioner) vehemently argued that the learned Trial Court exceeded its jurisdiction and exercised its jurisdiction with material irregularity and illegality in not framing the proper issues. Plaintiff had claimed relief of declaring the sale deed in question as null and void. 3. Contentions: 3(i) Learned counsel for defendant No. 2 (present petitioner) vehemently argued that the learned Trial Court exceeded its jurisdiction and exercised its jurisdiction with material irregularity and illegality in not framing the proper issues. Plaintiff had claimed relief of declaring the sale deed in question as null and void. Mortgage, if any, executed on the basis of this sale deed was also sought to be declared null and void. It was on the basis of these two declarations sought for that the plaintiff had also prayed for the relief of permanent prohibitory injunction. However, specific issues in this regard were not framed. The onus to prove that sale deed in question was result of fraud and mis-representation lay upon the plaintiff. Since there was no issue framed with respect to declaratory reliefs, plaintiff cannot be said to have discharged the burden of proof that the sale deed in question was sham, forged and illegal document not binding upon him. Relying on Harbans Lal vs. Bhim Sain etc, 1977 (Vol. 17) Current Law Journal (Civil) (P&H) 259, learned counsel for the petitioner contended that the question of title was raised before the Civil Court, therefore, without framing specific issue concerning title of the suit property, the impugned judgment and decree becomes vitiated. Learned counsel also argued that defendant No. 2 had taken specific objection regarding incorrect valuation of the suit property and that the learned Trial Court had no jurisdiction to entertain the suit. Proper findings in accordance with law on these objections framed as issues No. 3 and 6 were not returned by the learned Trial Court. Therefore, application moved by defendant No.2 (petitioner herein) under Order 41 Rule 25 of the Code of Civil Procedure was liable to be allowed. Learned Counsel prayed that the impugned order dated 4.4.2022 passed by the learned Appellate Court be set aside and the matter be remanded to the learned Trial Court in terms of the prayer made by the petitioner in his application under Order 41 Rule 25 CPC. 3(ii) Learned Counsel for the plaintiff (respondent No. 1 herein), emphatically opposed the petition. Learned counsel argued that the main appeal preferred by the petitioner contained the very grounds which were specifically put forth by the petitioner in the application moved under Order 41 Rule 25 CPC. 3(ii) Learned Counsel for the plaintiff (respondent No. 1 herein), emphatically opposed the petition. Learned counsel argued that the main appeal preferred by the petitioner contained the very grounds which were specifically put forth by the petitioner in the application moved under Order 41 Rule 25 CPC. The appeal was at the stage of hearing when petitioner moved the miscellaneous application for remanding the matter back to the Trial Court in respect of non framing of two issues as aforesaid by the learned Trial Court and alleged incorrect finding on issues No. 3 and 6. This was only a delay tactics on the part of defendant No. 2. Learned counsel also invited attention towards the provisions of Order 41 rule 24 alongwith Rule 25 CPC to contend that the application preferred by the petitioner was wholly misconceived. Learned counsel also submitted that issues in the Civil Suit were framed as far back on 15.3.2010 without any demur or objection by the petitioner. Ten years after framing of the issues it was not open to the petitioner to seek remand of the case from the learned Appellate Court on the ground that proper issues had not been framed by the learned Trial Court. It was also submitted that the instant petition filed under Article 227 of the Constitution of India did not even satisfy the parameters for the exercise of discretionary relief. Prayer was made for dismissal of the petition. 4. Reasoning: Defendant No. 2’s application rejected by the learned Appellate Court was moved under Order 41 Rule 25 CPC. It will be appropriate to first take note of Order 41 Rule 25 CPC which reads as under: “25. Prayer was made for dismissal of the petition. 4. Reasoning: Defendant No. 2’s application rejected by the learned Appellate Court was moved under Order 41 Rule 25 CPC. It will be appropriate to first take note of Order 41 Rule 25 CPC which reads as under: “25. Where Appellate Court may frame issues and refer them for trial to court whose decree appealed from: Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore within such time as may be fixed by the Appellate Court or extended by it from time to time.” According to the above extracted provision where the Court from whose decree the appeal is preferred has omitted to frame or try any issue or to determine any question of fact, which fact according to the learned Appellate Court is essential for the right decision of the case on merits, then the Appellate Court may, if it consider necessary, frame the issues and refer those issues for trial to the learned Court from whose decree the appeal is preferred. If required, the Appellate Court is also to direct the said Court to take additional evidence. Such Court is then to proceed to try the additional issues and is to return the evidence to the Appellate Court alongwith its findings thereupon. In the facts of the case, in my considered view, there is no infirmity in the impugned order passed by the learned Appellate Court in dismissing the application moved by the petitioner under Order 41 Rule 25 CPC. This is on account of the following reasons: 4(i) Suit was filed by respondent No. 1 for declaration that sale deed dated 18.12.2001 executed by respondent No.2 (defendant No. 1) in favour of present petitioner (defendant No. 2) was null, void and inoperative qua the plaintiff. This is on account of the following reasons: 4(i) Suit was filed by respondent No. 1 for declaration that sale deed dated 18.12.2001 executed by respondent No.2 (defendant No. 1) in favour of present petitioner (defendant No. 2) was null, void and inoperative qua the plaintiff. That mortgage, if any, created by defendant No. 2 in favour of defendant No. 3 on the basis of the aforesaid sale deed was also forged and fraudulent and not binding upon the plaintiff. On the basis of the aforesaid declaration, relief of permanent perpetual prohibitory injunction was sought by the plaintiff (respondent No.1) against defendant No. 2(petitioner) and defendant No.3 (respondent No.3). Issues in the Civil Suit were framed on 15.3.2010. Two such issues framed were: “1. Whether mortgage, if any, created by defendant No. 2 qua the suit property or any part thereof in favour of defendant No. 3 is void-ab-initio, forged and fraudulent and inoperative and not binding upon the plaintiff, as alleged?… OPP; and 2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for?…..OPP”. The issues were framed in the presence of the learned Counsel for the parties. The parties were fully aware about the matter and the controversy involved therein. No application was moved on behalf of defendant No. 2 under Order 14 Rule 5 CPC for amending the issues. Order 14 Rule 5 CPC reads as under: “Power to amend and strike out issues: (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.” In case defendant No. 2 had any grievance in respect of non framing of a specific issue, as is being projected now, it was incumbent upon him, in the facts and circumstances of the case, to seek amendment of the issues. Such recourse was not adopted. 4(ii) Parties went to trial and evidence was led by them. Such recourse was not adopted. 4(ii) Parties went to trial and evidence was led by them. On considering the pleadings, evidence and the arguments advanced by the parties, the learned Trial Court vide judgment and decree dated 24.12.2019 decreed the suit of the plaintiff observing therein that sale deed dated 18.12.2001 (Ext. DX-1), was null, void, illegal, sham, fraudulent and executed due to misrepresentation, hence the same was held to be inoperative and not binding upon the plaintiff. In this regard, it will be worthwhile to extract the following findings returned by the learned Trial Court in the judgment and decree dated 24.12.2019: “76. As such, through the testimony of the witnesses brought on record, the defendant No. 2 has failed to prove the fact that sale deed Ext. DX1 was executed by Smt. Janki Khanna with her own will and consent. Even, the witness to the sale deed Ext. DX1 has not duly supported the case of defendant No. 2. 77. The defendant No. 3 has examined one witness who has admitted in his cross-examination that the entry qua khasra Nos. 1884 was wrongly made as 884 and has not been corrected in mortgage register. Perusal of document Ext. DW10/D3 shows that the entry of khasra No. 884 has been made on 12.02.2002. This shows that even the bank officials did not act vigilantly while sanctioning the loan to defendant No. 2 as they have not make proper inquiries as required under the rules before sanctioning of loan. The bank has failed to produce on record the search report. He has admitted that in the present case the title has not been verified. The fact that the entries in the bank record qua loan have been made against wrong khasra and that the loan has been sanctioned without mutation and verification of title of the property. This shows that the loan has been sanctioned by the bank officials without following proper procedure in connivance with the defendant No. 2. 78. Hence, it is clear from the above discussion that no valid sale deed was executed in favour of the defendant No. 2 by Smt. Jankij Devi Khanna in the year 2001. The defendant No. 2 in order to create mortgage over suit property has fraudulently executed the sale deed Ext. DX1. As such, this mortgage is void-ab-initio and fraudulent and not binding upon the plaintiff. 79. The defendant No. 2 in order to create mortgage over suit property has fraudulently executed the sale deed Ext. DX1. As such, this mortgage is void-ab-initio and fraudulent and not binding upon the plaintiff. 79. In view of above discussion, both the points are answered in affirmative and in favour of the plaintiff.” A perusal of the judgment & decree passed by the learned Trial Court clarifies that not only the parties were very well aware of the points actually in issue, but they had also led evidence on all the contentious points after truly understanding the gist of the controversy. Learned Trial Court has already given the findings on the points now sought to be framed as additional issues. In fact, issues No. 1 and 2 actually covered the entire lis. No prejudice, therefore, can be said to have been caused to defendant No. 2 on account of non framing of two issues now proposed by him in his application. It would be beneficial to refer here to the judgment of the Hon’ble Apex Court reported in Kali Prasad Agarwalla (Dead) by LRs. & others vs. M/s. Bharat Coking Coal Limited & others, 1989 Supp (1) SCC 628, wherein it was held as under:- “19. It was, however, urged for the appellants that there is no proper pleading or issue for determination of the aforesaid question and the evidence let in should not be looked into. It is too late to raise this contention. The parties went to trial knowing fully well what they were required to prove. They have adduced evidence of their choice in support of the respective claims. That evidence has been considered by both courts below. They cannot now turn round and say that the evidence should not be looked into. This is a well accepted principle.” 4(iii) Aggrieved of the judgment and decree dated 24.12.2019, defendant No.2 preferred an appeal under Section 96 CPC. In the said appeal, defendant No. 2 has taken ground of non framing of proper issues by the Trial Court as well as in respect of not recording proper findings on issues No. 3 and 6. This is a well accepted principle.” 4(iii) Aggrieved of the judgment and decree dated 24.12.2019, defendant No.2 preferred an appeal under Section 96 CPC. In the said appeal, defendant No. 2 has taken ground of non framing of proper issues by the Trial Court as well as in respect of not recording proper findings on issues No. 3 and 6. It is an admitted position that during the course of hearing of the appeal, the application under Order 41 Rule 25 CPC was moved praying for framing of additional issues in respect of the plaintiff’s entitlement for relief of declaration to the effect that sale deed in question was null, void, illegal and fraudulent document and also plaintiff’s entitlement for the relief of permanent prohibitory injunction based on the proposed issues. Defendant No. 2 also prayed for remand of the matter to the learned Trial Court for recording proper findings on issues No. 3 and 6. Even though the main appeal was being heard but on the persistence of defendant No. 2 for disposing his application under Order 41 Rule 25 CPC prior to hearing of the main appeal the application was considered for disposal. When the main appeal was itself being heard finally and when the grounds put forth in the new application were also the grounds of main appeal, then the question arises what led defendant No. 2 to institute separate application a year later to the filing of the main appeal, putting forth the same very grounds? The obvious conclusion that can be drawn is that defendant No. 2 was adopting delay tactics. 4(iv) While deciding the application under Order 41 Rule 25 CPC, the submission of defendant No. 2 in respect of there being improper and incorrect findings on issues No. 3 and 6 has been left open to be considered alongwith the main appeal. No illegality can be said to have been committed by the learned Appellate Court in observing that the ground put forth by defendant No.2 regarding incorrect and improper findings on issues No. 3 and 6 will be taken up alongwith hearing of the main appeal. The ground has still been left open for defendant No. 2 to be raised in appeal. No prejudice has been caused to defendant No. 2 by reserving right to him to raise this ground during hearing of appeal. The ground has still been left open for defendant No. 2 to be raised in appeal. No prejudice has been caused to defendant No. 2 by reserving right to him to raise this ground during hearing of appeal. As it is, this point has already been taken by him in his grounds of appeal. Hence there is no error in the impugned order regarding this aspect also. 4(v) It is also to be noticed that the present petition has been filed under Article 227 of the Constitution of India. It would be beneficial to refer here to the judgment of the Hon’ble Apex Court reported in Garment Craft vs Prakash Chand Goel, (2022) 4 SCC 181 , wherein the nature and scope of exercise of supervisory jurisdiction under Article 227 was reiterated. The Hon’ble Apex Court held that while exercising supervisory jurisdiction under Article 227 of the Constitution of India, the High Court does not act as a Court of First Appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. Power under Article 227 is to be exercised where there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion arrived at by the Courts below. Relevant part of the judgment reads as under: “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. 16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. (2001) 8 SCC 97 has observed:(SCC pp. 101-102, para 6) “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.” The petitioner has failed to bring his case as urged within the ambit of parameters laid down for exercise of supervisory jurisdiction under Article 227 of the Constitution of India. For all the aforesaid reasons, no case for interference in the impugned order is made out. Petition being devoid of merits is dismissed. Pending application(s), if any, shall also stand disposed of accordingly. It goes without saying that above observations are confined to the adjudication of present petition only.