HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 19 Case :- SECOND APPEAL DEFECTIVE No. - 347 of 2015 Appellant :- Dharmveer Respondent :- Suresh Chandra Bhardwaj And Another Counsel for Appellant :- Ram Kishore Pandey,Uday Prakash Srivastava Hon'ble Pramod Kumar Srivastava,J.
1. Original suit no. 599/2009 (Suresh Chandra Bhardwaj & another v. Dharmveer) was instituted for the relief of specific performance of contract. The plaint case in brief was that parties had executed a registered agreement to sell dated 10.10.2007, by which it was agreed between them that defendant will sell the property in suit to plaintiff for a consideration of Rs. 60,000/-; and at the time of execution of said contract, Rs. 20,000/- was received by the defendant as advance consideration. Plaintiff had b een ready and willing to perform his part of contract and had kept the amount of remaining of consideration ready for payment at the time of registration of sale-deed; but defendant had not executed the sale-deed in spite of repeated reminders and notices to him, and in spite of the plaintiff being present in Sub-Registrar office after notice for executing the registered sale-deed. Therefore, plaintiff had filed the suit for specific performance of contract of sale.
2. In original suit, defendant no.-1 Dharmveer (present appellant) appeared and filed written-statement, in which he had admitted the execution of registered agreement to sell of disputed property on 10.10.2007, and receiving of advance consideration of Rs. 20,000/-. buthe had not admitted remaining contents of the plaint, and pleaded that he had been ready and willing to perform his part of contract of sell of property dated 10.10.2007, but plaintiffs were not ready for the same. The defendant had not denied the presence of plaintiffs on 16.10.2008 in Sub-Registrar Office but pleaded that since the said date was not agreed between the parties for execution of sale-deed, therefore, plaintiffs cannot get the benefit of it. He further pleaded that parties had agreed to execute the sale-deed within one year of registered agreement to sell but when plaintiffs had not showed their willingness for the same then defendant no.-1 had sold the disputed property on 14.09.2009 to defendant no.-2. Therefore, plaintiff's suit is liable to be dismissed.
3. During proceeding of the suit, after filing w.s. The defendant no.-1 had absented himself, and defendant no.-2 had also not contested he suit in spite of service, therefore suit proceeded ex-parte against them. The plaintiff's side had examined PW-1 Suresh Chandra Bhardwaj and PW-2 Wahid and filed documentary evidences. Then Civil Judge (S.D.), Bareilley had passed the ex-parte judgment dated 26.11.2010 by which plaintiffs' suit was partly decreed. By this judgment the trial court had declined the relief of specific performance of contract, but passed the decree against defendant no.-1 for return of money advanced at the time of execution of registered agreement to sell dated 10.10.2007 with interest of 12 per cent per annum. Not satisfied with the decree of the trial court, the plaintiff had preferred Civil Appeal no. 11/2011 (Suresh Chandra Bhardwaj v. Dharmveer and another) by which relief was sought for the specific performance of contract. The notice of first appeal was served on respondents/defendants, but when they absented themselves, then appeal was heard in their absence, and then the Additional District Judge, Court No. 11, Bareilly had passed the judgment dated 2.7.2015 by which appeal was allowed, the judgment dated 26.11.2010 passed by trial court was set aside, and original suit was decreed for relief of specific performance of contract with direction to defendant no.-1 Dharmveer (present appellant) to execute the registered sale-deed within two months after receiving the remaining amount of consideration. Aggrieved by this judgment of first appellate court, the defendant no.-1 of original suit had preferred present appeal.
4. Learned counsel for the appellant contended that it is the duty of the Court to ensure that even in case of ex-parte decree, plaint case must be proved. He further contended that at the time of passing ex-parte judgment issues must be framed. He contended that since the trial court had passed the judgment without ensuring that plaint case is proved and issues were not framed, therefore, judgment of trial court, and for the same reasons judgment of appellate court are erroneous. In the light of above argument, legal position was scrutinized. This part of argument of the appellant side is acceptable that suit should be decreed only when plaintiffs' case is proved. But from a perusal of the record this argument is unacceptable that trial court or first appellate court had not considered the facts and evidences before passing their judgments. Both the courts below had found that plaint case is proved and then passed their respective judgments.
5. A perusal of the record reveals that trial court specifically mentioned the admission of defendant no.-1 (/appellant) in its judgment regarding his admission of execution of registered agreement to sell, therefore, if there would have been no evidence even then on the basis of admission of defendant through his written statement, the execution of registered agreement to sell dated 10.10.2007 as pleaded in plaint was proved. So far as, the averment of defendant no.-1 in his written statement regarding parties being agreed to execute the registered agreement to sell within one year is concerned, this was a new fact pleaded by defendant no.-1 (/appellant) and burden of provinf said fact was on him; but he had absented himself and had not adduced any evidence in that regard, thus he had failed to prove it. On the other hand, plaintiffs had examined himself as PW-1 and other witness Wahid as PW-2, and they had proved the plaint case in toto, which was discussed and considered by the two courts below, and their findings in this regard appear correct and acceptable. Therefore this argument of appellant is not acceptable that trial court or the first appellate court had decreed the suit without plaint case being proved.
6. So far as the argument of appellants counsel regarding non framing of issues in ex parte judgment is concerned, in Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7 SCC 350, the apex court has held as under:
"In a case which has proceeded ex parte the court is not bound to frame issues under Order 14 and deliver the judgment on every issue as required by Order 20 Rule 5. Yet the trial court should scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the "points for determination" and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence."
7. Thus, this contention is unacceptable that in ex-parte judgments the issues must be framed. As held earlier, the trial court and first appellate court had also discussed the evidences and appreciated the points required for being considered for decision of the original suit as well as the first appeal, and then passed judgments. Therefore above mentioned arguments of learned counsel for the appellant have no force.
8. Learned counsel for the appellant contended that in the present case the 'readiness and willingness' on the part of plaintiff is not proved. In this regard a perusal of the records reveals that plaintiff had specifically mentioned in plaint that after execution of registered agreement to sell dated 10.10.2007, every moment he was ready and willing to perform their part of contract with availability of that much money which could be bear expanses of remaining consideration of Rs. 60,000/- and expanses of sale-deed. He had further pleaded that when the defendant no.-1 had not executed the sale-deed then he had sent notice to him for execution of sale-deed on 16.10.2008 and remained present in person in Sub-Registrar office as per notice. These were not only plaint averments but also these facts had been proved properly and sufficiently by plaintiffs' side by their evidences. These evidences of plaintiff-respondent remained uncontroverted. It is pertinent also that there are specific finding of facts of two courts below in that regard. Therefore the appellant's argument for non readiness or willingness of respondent is unacceptable.
9. Last argument of learned counsel of the appellant was that first appellate court had not framed any point on determination under Order XLI, Rule 31 CPC at the time of passing of its judgment in first appeal, therefore, the said judgment is erroneous and should be quashed. I have considered this argument which is a fact that first appellate court had not framed the point of determination as directed in Order XLI Rule 31 CPC in so many specific words, but in this regard it is pertinent to mention that most of the facts of plaint case on facts were not only admitted in written statement of defendant no.-1/appellant, but also were held to be proved by the two courts below. The trial court had decreed the suit over alternative relief of return of money under Section-16 of the Specific Reliefs Act, but the first appellate court had not accepted the said judgment of trial court only on point of granted relief and decreed the suit for the main relief of specific performance. The first appeal was preferred only on the point that in spite of plaintiffs' case being proved, the main relief of specific performance was not granted, and this was only point of determination in first appeal, which was properly mentioned, discussed, appreciated and determined before passing of the judgment in first appeal.
10. In first appeal the only point of determination was whether the plaintiff is entitled for the main relief of specific performance of contract of sale or not. This was properly mentioned and discussed by the first appellate court and judgment was passed on it. In these circumstances, the first appellate court had complied the mandate of Order XLI Rule 31 CPC in its spirit. In fact, before reaching to the conclusion, first appellate court had specifically discussed and dealt that in spite of decree of return of advance money in this matter why relief for specific performance contract for sale was being granted. Therefore although formal point of determination was not framed but it was mentioned in descriptive form and finding was given on it by a speaking order in which reason was also given.
11. In G. Amalorpavam v. R.C. Diocese of Madurai, (2006) 3 SCC 224, the Apex Court has held as under:
The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC.
12. On the basis of this Ruling of Hon'ble Apex Court, and considering the aforementioned discussion, it is found that mandate of Order XLI Rule 31 CPC had been fully complied with by the first appellate court in spirit, and therefore, for the reasons discussed above, the judgment of first appellate court cannot be treated to be erroneous.
13. By this second appeal, judgments of two courts below were challenged. So far factual aspect is concerned, as discussed above, the two courts below had properly appreciated the pleadings, evidences and thereafter gave concurrent finding of facts about the plaint case being proved, and those findings are apparently correct and acceptable. Therefore on the facts regarding plaint averment of execution of registered agreement to sell , readiness and willingness of plaintiff to execute his part of contract, and default on part of defendant/appellant are proved, and these findings are not such which can be interfered in second appeal by re-appreciation of evidences by this Court.
14. So far as decreeing the suit by the trial court is concerned, it is pertinent to mention that in spite of judgment of trial court against him, the defendant no.-1/appellant had not challenged the same and permitted it to become final against him. It was the plaintiffs who challenged only that part of judgment in first appeal which related to declining of main relief of specific performance and granting on alternative relief of return of advance amount of advance consideration amount. The first appellate court had also discussed the facts, circumstances and legal position and thereafter passed its decree for specific performance. It is pertinent to mention that the judgment of two courts below were never challenged by defendant no.-2 Krishna Pal Singh who had also permitted them to become final against him. In these circumstances, the judgments of first appellate court is not such which should be interfered with any exercise of jurisdiction of this Court in second appeal.
15. On examination on reasoning recorded by learned first appellate court in first appeal, I am of the view that the judgment of first appellate court is well reasoned and is based on proper appreciation of the entire evidences on record. No perversity or infirmity is found in finding of fact and judgmenta by the first appellate court to warrant interference through this appeal. In the light of admitted legal position and facts including concurrent finding of fact, there appears no involvement of any question of law that may affect the rights of defendant no.-1/appellant. Therefore, no substantial question of law arises in this matter. None of the contentions of learned counsel for the appellant can be sustained.
16. For the reasons discussed above, this second appeal is dismissed.
Order Date :- 7.12.2015 Sanjeev