Bombay High Court
Sanjay S/O Nilkanthrao Derkar vs Smt. Shalinitai W/O Ramdas ... on 11 July, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.448 OF 2014
Sanjay s/o Nilkanthrao Derkar,
Aged about 50 years,
Occ: Cultivator, R/o Wani,
Tq. Wani, Dist. Yavatmal. ....... APPELLANT
...V E R S U S...
Smt. Shalinitai w/o Ramdas Kasturwar,
Aged about 56 years, Occ: Agriculturist,
R/o Yerkheda,
Tq. Kamptee, Dist. Nagpur. ....... RESPONDENT
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Shri Amol Mardikar, Advocate for Appellant.
Shri Anil S. Kilor, Advocate for Respondent.
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CORAM: R.K. DESHPANDE, J.
th JULY, 2016.
DATE: 11
ORAL JUDGMENT
1] The suit in question was for specific performance of
contract. The trial Court recorded the finding that the contract has been
established, but the plaintiff is non-suited on the ground that he has
failed to establish readiness and willingness on his part to perform the
contract. The lower Appellate Court recorded the finding that there was
no concluded contract between the parties, and thereafter proceeds to
confirm the finding of the trial Court on the aspect of readiness and
willingness of the plaintiff to perform his part of contract.
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2] In the light of the aforesaid findings recorded by the Courts
below, the following substantial question of law arises for consideration:
Whether the judgment and order passed by the lower
Appellate Court can be sustained particularly, when it
reverses the finding of the trial Court about concluded
contract without any basis and confirms the finding of
readiness and willingness without taking into consideration
the oral and documentary evidence available on record?
3] Admit.
4] Heard finally by consent of the learned counsels appearing
for the parties.
5] Shri Kilor, the learned counsel for the respondent/defendant
makes a statement that the defendant never raised the dispute about the
concluded contract. He submits that the contract dated 29.03.2001 was a
concluded contract. However, he supports the finding recorded by the
trial Court on the aspect of readiness and willingness on the part of
plaintiff to perform the contract. He submits that though, the lower
Appellate Court has not independently applied its mind to the oral as
well as documentary evidence available on record, this Court can go
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through those documents and evidence to find out whether the ultimate
conclusion drawn by the trial Court that the plaintiff has failed to
establish readiness and willingness, is based upon the evidence available
on record.
6] The lower Appellate Court has failed to discharge its
statutory obligation under Order XLI, Rules 24, 31 and 33 of the C.P.C.
The lower Appellate Court ought to have taken into consideration the
oral as well as documentary evidence in the light of the findings
recorded by the trial Court, but this has not been done. On the contrary,
the finding is recorded that there was no concluded contract, which was
not a case put-forth by the defendant. The matter will have to be
necessarily remanded back to the lower Appellate Court after setting
aside the judgment and order. The question of law is answered
accordingly.
7] In the result, the second appeal is allowed. The judgment
and order dated 07.10.2014 passed in Regular Civil Appeal No.47 of
2012, is hereby quashed and set aside. The matter is remitted back to the
lower Appellate Court to decide the appeal afresh, keeping in view the
observations made by this Court. It is made clear that this Court has not
gone into the merits of the issue as to readiness and willingness on the
part of plaintiff to perform the contract and all questions are left open to
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be decided by the lower Appellate Court. The lower Appellate Court,
however, shall not reopen the question of concluded contract and shall
proceed on the footing that the contract was concluded. The parties to
appear before the lower Appellate Court on 22.08.2016. No fresh notices
shall be issued. The lower Appellate Court to decide the matter within a
period of four months thereafter.
8] The interim order passed by this Court granting protection
of possession of the plaintiff shall continue to operate pending the
decision of the appeal before the lower Appellate Court.
JUDGE
NSN
