Devidas Liladhar Chaudhari, Died ... vs Atmaram Chavdas Yeole, Died Thr. ...
2021 Latest Caselaw 12926 Bom

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD


                            SECOND APPEAL NO.386 OF 2013
                                        WITH
                          CIVIL APPLICATION NO.6757 OF 2013


DEVIDAS LILADHAR CHAUDHARI, DIED, LRS, MOHINIBAI, DIED, DELETED
                                    AND OTHERS
                                       VERSUS
    ATMARAM CHAVDAS YEOLE, DIED, LRS SHAKUNTALA AND OTHERS
                                          ...
Mr. V.J. Dixit, Senior Counsel i/b Mr. A.N. Nagargoje, Advocate for appellants
    Mr. V.B. Patil, Advocate h/f Mr. N.L. Choudhary, Advocate for respondent
                                      Nos.1 to 7
                                          ...

                                    CORAM :     SMT. VIBHA KANKANWADI, J.
                                    DATE :      09th SEPTEMBER, 2021


ORDER :

1 Present appeal has been filed by the original plaintiff challenging

the Judgment and Decree passed by the First Appellate Court in Regular Civil

Appeal No.140/2001 (original First Appeal in High Court No.527/1994) by

learned District Judge-2, Jalgaon, whereby the First Appellate Court had

reversed the Judgment and Decree passed by the learned Trial Judge, by

allowing the appeal filed by the present respondents.

                                          2                                       SA_386_2013



2              Present appellants-original plaintiff had filed Special Civil Suit

No.110/1986 before 2nd Joint Civil Judge Senior Division, Jalgaon for specific

performance of the contract. The said suit came to be decreed. Original

defendant was directed to execute sale deed in favour of the original plaintiff

in respect of Gat No.217 situated at village Muza Veli, Tq. & Dist. Jalgaon by

decree dated 31.03.1994. As aforesaid, in view of then prevailing jurisdiction

over the matters, the present respondents had come to this Court by filing

First Appeal, however, during the pendency of the First Appeal the pecuniary

jurisdiction of the District Court got increased and then the matter was

transferred to District Court, Jalgaon. The appeal was renumbered as

'Regular Civil Appeal No.140/2001'. It was heard by learned District Judge-

2, Jalgaon and the appeal was allowed. The Judgment and Decree passed by

the Trial Court was set aside and the suit was dismissed. Hence, this Second

Appeal.

3 Heard learned Senior Counsel Mr. V.J. Dixit instructed by learned

Advocate Mr. A.N. Nagargoje for the appellants and learned Advocate Mr. V.B.

Patil holding for learned Advocate Mr. N.L. Choudhary for respondent Nos.1

to 7.

4 At the outset, it is to be noted that the Trial Judge held that the

nature of the document that was executed on 01.06.1984 was agreement to

3 SA_386_2013

sell. It was held that the plaintiff had proved that the earnest amount was

paid. Further, amount was paid by the plaintiff as earnest on 16.07.1984 and

executed another agreement in respect of the same transaction, so also, the

third agreement was executed by the defendant in respect of sale transaction

on 28.03.1987. It was also held that the plaintiff was ready and willing to

perform his part of the contract. It was held that the defendant was failed to

prove that the original defendant has obtained the loan from the plaintiff and

plaintiff had obtained signatures of the defendant on blank papers. The same

documents have been then held to be executed towards money lending

transaction by the First Appellate Court and, therefore, it is stated that the

plaintiff is not entitled to get decree of specific performance of the contract.

Therefore, in view of the fact that there is contradictory finding on the same

set of evidence, it leads to the question, which needs to be gone into, as to

whether the interpretation of the documents is proper and whether the

appreciation of the evidence by the First Appellate Court is proper. If we

consider the Judgment of the First Appellate Court, then only two points

have been framed, which are thus -

1) Do plaintiff/respondents are entitled for the decree of specific performance of contract of the suit property ?

2 Do defendant prove that transaction is money lending transaction and suit is not maintainable ?

4 SA_386_2013

Thus, whether the Judgment of the First Appellate Court

complies with the requirements of Order XLI Rule 31 of the Code of Civil

Procedure, 1908 and the decision of the Apex Court in Santosh Hazari vs.

Purushottam Tiwari, deceased by L.Rs., 2001(2) Mh.L.J., 786 is also required

to be considered. Further, in case of Sir Chunilal V. Mehta and sons Ltd. vs.

Century Shinning and Manufacturing Co. Ltd., AIR 1962 SC 1314(1), the Full

Bench of the Hon'ble Supreme Court has held that -

"It is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law. The proper test for determining whether a question of law raised in the case is substantial would be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

5 Therefore, taking into consideration the said ratio when

interpretation of the document needs to be made and when the same set of

5 SA_386_2013

evidence has been considered differently, the interpretation of the documents

admittedly executed, then definitely, substantial questions of law are arising

in this case. Accordingly, the Second Appeal is admitted. Following are the

substantial questions of law :

1 Whether the plaintiff had proved that there was agreement to sell between him and defendant executed on 01.06.1984, 16.07.1984 and 28.03.1987 in respect of sale transaction ?

2 Whether the plaintiff was ready and willing to perform his part of the contract ?

3 Whether the defendant had shown that the transaction was money lending ?

4 Whether plaintiff was entitled to get specific performance of the contract ?

5 Whether the Judgment of the First Appellate Court complies with the requirements of Order XLI Rule 31 of the Code of Civil Procedure, 1908 and the ratio laid down in Santosh Hazari vs. Purushottam Tiwari, deceased by L.Rs., 2001(2) Mh.L.J., 786 ?

6 Whether the present appeal needs remand, if it is not complying with the provisions of Order XLI Rule 31 of C.P.C. ?

                                          6                                       SA_386_2013



6                Issue notice to respondents.   Learned Advocate Mr. V.B. Patil

holding for learned Advocate Mr. N.L. Choudhary waives notice for

respondent Nos.1 to 7.

7 Civil Application No.6757 of 2013 to be considered along with

the Second Appeal and liberty is granted to move the Court again, if in the

meantime there is any obstruction.

( Smt. Vibha Kankanwadi, J. )

agd