Shri. Manoj Madhukar Gadge And ... vs Shri. Dattatraya S/O. Manohar ...
2017 Latest Caselaw 6661 Bom

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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     NAGPUR BENCH : NAGPUR.

                                                 SECOND APPEAL NO.68 OF 2017

               APPELLANT:                                   1.        Shri   Manoj   Madhukar   Gadge,   Aged
                                                                      about 52 years, Occ-Cultivation,
               On R.A. 
               Ori. Defendant 


                                                            2.        Shri   Akash   S/o   Mohan   Gadge,   Aged
                                                                      About 28 years, Occ-Student,
                                                            3.        Smt.   Mana   wd/o   Mohan   Gadge,   Aged
                                                                      about 47 years, Occ-Nil, 
                                                                      All   1   to   3   R/o   Rammandir   Ward,
                                                                      Mohapa   (Kalmeshwar),   Tq.
                                                                      Kamleshwar, Dist. Nagpur.
                                                            4.        Sau.   Nanda   @   Megha   w/o   Pradeep
                                                                      Dani,   Aged   42   years,   Occ-Service,   R/o
                                                                      249,   Near   Water   Tank,   Mahatma
                                                                      Gandhi   Nagar,   Hudkeshwar   Road,
                                                                      Nagpur.
                                                      The   appellant   Nos.2   to   4   are
                                                      represented   through   their   power   of
                                                      attorney   holder   Shri   Manoj   Murlidhar
                                                      Gadge, the appellant no.1 herein.
                                                                                                               
                                                           -VERSUS-

               RESPONDENTS:                                           Shri   Dattatraya   S/o   Manohar   Tekade,
               On R.A.                                                Aged About 72 years, Occ-Nil (Retired)
               Ori. Plaintiff.                                        R/o   Shakuntala   Bhavan,   Chunabhatti
                                                      Road, Nagpur Tq. & Dist. Nagpur.
                                                                           
                                                                                 

              Shri U. K. Bisen, Advocate for the appellants
              Shri P. V. Vaidya, Advocate for respondent.




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                                                                 CORAM: A.S. CHANDURKAR, J.

DATED: AUGUST 31, 2017.

ORAL 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,

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the suit came to be filed for specific performance on 3-5-2008.

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 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

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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.

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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

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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.

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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. 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

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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. 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

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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. 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

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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. 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 putforth and pressed

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by the parties for decision of the appellate Court have to be read in that

context. In other words, the contentions putforth 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

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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 re-agitated before

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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. The Second Appeal is accordingly dismissed with no order as

to costs.

JUDGE

/MULEY/