Bombay High Court

Meerabai Baburao Patil vs Sajanbai Ramrao Patil on 14 August, 2024

2024:BHC-AUG:17918


                                                                        SA-517-1999
                                                 -1-

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                  SECOND APPEAL NO. 517 OF 1999
                                               WITH
                                CIVIL APPLICATION NO. 3488 OF 1999
                                                IN
                                  SECOND APPEAL NO. 517 OF 1999

                 Mirabai w/o Baburao Patil,
                 Age : 46 years,
                 Occupation : Agriculture & Household,
                 Resident of Chikhali (Bk), Post Harankhede,
                 Taluka Bhusawal,
                 District : Jalgaon.                           ... Appellant
                                                               [Ori. Plaintiff]
                       Versus

                 Sajanbai Ramrao Patil
                 Died through legal heirs:

                 1]    Pushpabai w/o Yeshwant Patil
                       Age 58 years, Occ : Agri,
                       r/o Chikhali (Bk) Post
                       Harankhede Taluka Bodhwad
                       District Jalgaon.

                 2]    Surendra s/o Yeshwant Patil
                       Age 40 years, Occ : Agri
                       r/o Chikhali (Bk) Post
                       Harankhede Taluka Bodhwad
                       District Jalgaon.

                 3]    Vinod s/o Yeshwant Patil
                       Age 38 years, Occ : Agri
                       r/o Chikhali (Bk) Post
                       Harankhede Taluka Bodhwad
                       District Jalgaon.

                 4]    Gajanan s/o Yeshwant Patil
                       Age 36 years, Occ : Agri
                       r/o Chikhali (Bk) Post
                       Harankhede Taluka Bodhwad
                       District Jalgaon.
                                                                SA-517-1999
                                    -2-

5]      Archana w/o Subhash Hiwale,
        Age 34 years, Occ : Household
        r/o Chikhali (Bk) Post
        Harankhede Taluka Bodhwad
        District Jalgaon.

6]      Alkabai w/o Nivrutti Patil
        Age 62 years, Occ : Household
        r/o Chikhali (Bk) Post
        Harankhede Taluka Bodhwad
        District Jalgaon.                            ... Respondents

                                 .....
Mr. N. K. Kakade, Advocate for the Appellant.
Mr. Navin S. Shah, Advocate h/f Mr. Swapnil S. Patil, Advocate for
respondent nos. 1 to 6
                                 .....

                           CORAM :        ABHAY S. WAGHWASE, J.
                           Reserved on         : 22.07.2024
                           Pronounced on       : 14.08.2024

ORDER :

1. In this second appeal, exception has been taken to the

judgment and order dated 29.10.1998 passed by learned Joint District

Judge, Jalgaon in Regular Civil Appeal No. 149 of 1995 arising out of

judgment and order dated 29.04.1995 in Special Civil Suit No. 195 of

1993.

FACTUAL MATRIX

2. Present Appellant, original plaintiff instituted Special Civil Suit

No. 195 of 1993 for specific performance of contract for sale brought

by the plaintiff against the defendant SA-517-1999

3. Sum and substance of the plaintiff's case was that plaintiff and

defendant/present respondent entered into an agreement to sale on

02.06.1988 regarding sale of 2 hector land owned by defendant in

block no. 131 for a valuable consideration of Rs.40,000/-. Earnest

amount of Rs.15,000/- was paid. It was agreed between the parties

that plaintiff has to clear the encumbrances of the suit land as well as

another land block no. 144 belonging to the defendant. Prior to sale

deed, defendant was in need and hence obtained Rs.2,000/- from

plaintiff and executed a receipt on stamp paper. Plaintiff paid

encumbrances upon the suit land to the tune of Rs.4,537.50/- and

Rs.10,670/- to clear the encumbrances upon another land block no.

144 as agreed and thus, total amount of Rs.32,207.50/- out of total

consideration of Rs.40,000/- was paid to the defendant.

Subsequently, plaintiff called upon defendant to execute the sale

deed, but defendant deliberately failed to perform her part of contract

and hence suit was instituted.

4. Defendant appeared and resisted the suit denying agreement of

sale or receiving earnest amount and payment of encumbrances by

plaintiff. Defence taken was that it was transaction of pure hand loan.

On blank paper, defendant's signatures were obtained and suit has

been instituted.

SA-517-1999

5. Trial was conducted before learned IInd Joint Civil Judge Senior

Division, Jalgaon vide Special Civil Suit No. 195 of 1993, in which

following issues came to be framed :

ISSUES FINDING

1. Does plaintiff prove that she has share of E.1 and Affirmative 4 anna as and defendant has share of Rs.9 and 8 annas in field gat No.132 of Chikali as described?

Affirmative

2. Does she prove that defendant has executed agreement deed on 02.06.1988?

Affirmative

3. Does she prove that she paid Rs.15,000/- towards earnest money to the defendant?

Negative

4. Does she prove that she was put in possession of suit field on 02.06.1988 and is in possession of it till filling of this suit?

Proved in

5. Does she prove that she has paid the loan amount respect of block against suit field and field Gat No. 144? no. 144.

Negative.

6. Does she prove that she paid Rs.2000/- towards amount of consideration on 09.06.1989?

Affirmative

7. Does she prove that it was agreed to execute the sale deed after payment of loan amount against suit field and gat No. 144?

Affirmative

8. Does she prove that she was and is willing to purchase the suit field?

SA-517-1999

Does not

9. Does defendant prove that the document survive.

executed on 02.06.1988 is mortgage deed?

Does not

10. Does she proved that the plaintiff has 3 annas and survive in view 4 paise share in the suit field and she has 8 annas of my finding on Issue No.1.

and her step son has 3 annas and 4 paise share in the suit field?

Negative.

11. Does she prove that the suit transaction is money lending transaction?

Negative.

12. Does she prove that her thumb mark was obtained on blank stamp paper?

Negative.

13. Whether the suit is barred by limitation?

Negative.

14. Whether the plaintiff has paid insufficient court fee stamp?

As per final

15. What order, relief and decree?

order below.

6. After hearing both sides and appreciating the oral and

documentary evidence, learned trial court partly decreed the suit. Suit

for specific performance came to be dismissed, but plaintiff was held

entitled to refund of amount of Rs.25,670/- along with 18% interest

i.e. vide judgment dated 29.04.1995.

SA-517-1999

7. Said judgment was assailed by original plaintiff i.e. present

appellant by filing Regular Civil Appeal No. 149 of 1995. Said Appeal

came to be dismissed by the first appellate court on 29.10.1998

confirming the judgment passed by the court of II nd Joint CJSD,

Jalgaon.

8. Feeling aggrieved by the dismissal of appeal, original plaintiff

has knocked the doors of this Court by filing instant Second Appeal.

This Court by order dated 05.08.1999, admitted the appeal by

formulating two points which are as under :

"(i) Having once reached to the conclusion that the agreement at exhibit 66 was proved and that the amount received by way of earnest amount has been paid towards refund of the loan amount by the defendants, would it be appropriate, in such a case, not to grant the decree for specific performance of the contract merely by using the words "exercise of discretion by the Court?

and

(ii) Is it a case wherein can it be said that the courts below have judiciously exercised the discretion in refusing to grant the decree for specific performance of the contract?

SA-517-1999

SUBMISSIONS

On behalf of the appellants:

9. Learned counsel for appellant appraised the Court about the

nature of suit in trial court contending that there was agreement to

sale at Exhibit 66. Its Execution has not been denied.

Defendant/respondent had accepted earnest amount. As agreed,

present appellant had cleared the encumbrances. Thus, according to

him, out of total consideration of Rs.40,000/- substantial amount of

Rs.32,207.50/- was already borne and paid by plaintiff and was

always ready and willing to perform her part of contract. Defendant

avoided and therefore, as required under law, by two notices,

defendant was called upon to perform her part of contract. According

to him, all requirements for entitlement of relief of specific

performance were available and made out in the trial court itself and

therefore the suit ought to have been decreed. That, there was failure

on the part of trial court in appreciating the evidence as well as

settled law. That, suit was partly decreed, i.e. only for refund of

money with interest, which was not the claim of plaintiff/appellant.

Therefore, plaintiff had assailed the judgment of trial court.

10. He next submitted that, case was reiterated in appellate court.

That, first appellate court also did not consider and appreciate SA-517-1999

plaintiff's case in proper perspective. That, essential and mandatory

requirements of Order XLI Rule 31 of the Code of Civil Procedure

(CPC) were not adhered to by the first appellate court. Therefore,

learned counsel prays to remand the matter back to the appellate

court for fresh consideration.

On behalf of the defendants :

11. On the other hand, supporting the judgment passed by trial

court as well as first appellate court, learned counsel Mr. Shah would

submit that, taking disadvantage of defendant/respondent, an

illiterate and rustic lady, transaction of hand loan was tried to be

converted into alleged agreement to sale when there was none. That,

defendant was a widow. Plaintiff did not substantiate her claim and

did not approach court with clean hands. That, on complete

appreciation, trial court formulated several issues and duly answered

the same. According to him, there is no illegality or perversity in the

conclusion reached at by trial court. He also took this court through

the observations of trial court in para 33 to 35 and supported the

same as well as the conclusion reached at. He branded the document

Exhibit 66 to be fabricated one. He also supported the judgment

passed by the first appellate court by submitting it to be just, legal SA-517-1999

and proper and thereby prays to dismiss the Second Appeal and also

resisted the prayer of remand.

Learned counsel for the defendants sought reliance on

Pemmada Prabhakar and others v. Youngmen's Vysya Association and

others (2015) 5 SCC 355 and A. C. Arulappan v. Ahalya Naik 2001

DGLS(Soft) 972/(2001) 6 SCC 600.

ANALYSIS

12. Here, suit was for specific performance of contract on the

strength of agreement to sale. Perused the judgment of trial court.

The issues framed at Exhibit 29 are already reproduced in aforesaid

para. It seems that in trial court, to establish claim, plaintiff adduced

her own evidence in the capacity as PW1 at Exhibit 38 and also

adduced evidence of PW2 Samadhan and PW3 Pundlik and Exhibits

63 and 65 respectively.

13. The sum and substance of plaintiff's case in trial court is that

agreement to sale Exhibit 66 was executed on 02.06.1988. As agreed,

government encumbrances, which were to be borne by plaintiff, are

duly paid and there is documentary evidence to that extent. Plaintiff SA-517-1999

also claimed to have been put in possession on the day of agreement

to sale itself.

14. All above averments, contentions and pleadings are refuted by

defendant by examining herself at Exhibit 70 along with her evidence

and written statement, she has also placed on record copies of replies

dated 23.02.1993 as well as 05.04.1993 to the notices of plaintiff and

also placed on record application for temporary injunction, order

below Exhibit 6 in suit No. 163 of 1993 and certified copy of appeal

preferred by her against the order of Tahsildar in respect of making

entries of 8 anna share in the name of plaintiff in possession column.

Precisely defence is that, there was no agreement to sale as alleged.

She has not received any earnest amount as claimed. Rather, it was a

simple hand loan transaction which is surreptitiously converted into

agreement to sale. Plea of plaintiff about plaintiff to be in possession

is also discarded in toto.

15. On going through the record, more particularly judgment of

first appellate court, it is noticed that after hearing learned counsel

for appellant and marking absence of learned counsel Mr. D. K.

Chaudhary for respondent original defendant even though repeatedly

called, and taking note of the fact that no cross objection or cross SA-517-1999

appeal was filed questioning the findings of trial court which went

against the defendant, learned trial court observed in para 5 as

under :

"5. I have perused the entire case record and bestowed my thoughtful considerations to the submissions made by Mr. Akole, the learned counsel for the appellant. Since no cross-objection / cross appeal has been filed, the findings in respect of the issues, which has been answered against the defendant, has become final and they are not amenable to reassessment. Hence, the only point, which arise for my determination, is as under, along with my findings there against, for the reasons to be enumerated in subsequent paragraphs.

            Points                                        Findings

      1. Whether the learned trial court had                Yes.

exercised its discretion in legal and proper manner while refusing the relief of specific performance of contract by granting the relief of refund of consideration along with interest thereon?

2. What order ? The appeal is dismissed.

16. Thus, learned first appellate court formulated only and sole

point for determination as above and appeal came to be dismissed

confirming the judgment and order passed by learned Jt. CJSD,

Jalgaon dated 29.04.1995.

SA-517-1999

17. Here, the fundamental and principal ground in Second Appeal

is non-compliance of Order XLI Rule 31 of CPC and hence, prayers for

remanding back the matter to the first appellate court for fresh and

proper re-appreciation.

18. For proper apprehension and appreciation order XLI Rule 31 is

reproduced as under :

"Odrder XLI : Appeals From Original Decrees

1. to 30. ....

31. Contents, date and signature of judgment.--The judgment of the Appellate Court shall be in writing and shall state--

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

19. Therefore short ground for consideration in this Second Appeal

is, whether there is compliance of Order XLI Rule 31 in letter and

spirit.

SA-517-1999

20. There are catena of judgments on the legal requirements of

Order XLI Rule 31. Useful reference could be made to the known

decisions and precedents on the above aspect wherein scope, power

and duty of first appellate court while exercising powers under

Section 96 of C.P.C. read with Order XLI Rule 31 are enunciated.

In Kurian Chacko v. Varkey Ouseph reported in AIR 1969 Ker

316, it has been observed as under ;

"2] An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court."

In Santosh Hazari v. Purushottam Tiwari reported in (2001) 3

SCC 179, the Hon'ble Apex Court in para 15 has observed that;

"15. The appellate Court has jurisdiction to reverse or affirm the findings of the Trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate SA-517-1999

Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. ....... while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it."

In H. K. N. Swami v. Irshad Basith , reported in (2005) 10 SCC

243, the Hon'ble Apex Court reiterated the same principle in para 3 of

the judgment, which reads as under :

"3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."

SA-517-1999

Very recently, the Hon'ble Apex Court in the case of Manjual

and others v. Shyamsundar and others, reported in (2022) 3 SCC 90,

observed as under :

"8. Section 96 of the Code of Civil Procedure, 1908 (for short, 'CPC') provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 of the CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state

(a) points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for re- consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the SA-517-1999

contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non- observance of these requirements lead to infirmity in the judgment."

21. Keeping above settled precedents in mind and on reverting to

the case in hand, it is noticed that the first appellate court has not

adhered to the mandate spelt out in Order XLI Rule 31 of CPC. It is so

evident from the body of the judgment, as only learned counsel for

appellant was heard and solitary point for determination, reproduced

above, was formulated and answered. Here, suit was for specific

performance of contract. It was expected of first appellate court to re-

appreciate all 15 issues casted by learned trial judge and ought to

have independently recorded findings whether learned trial court was

correct in the assessment while recording conclusion to each of the

issues independently. Apparently this exercise of re-appreciation of all

the issues and findings has not been undertaken by the first appellate

court and resultantly, the mandatory requirement has not been

complied with.

22. Learned counsel for respondent/original defendant merely

supported the findings of first appellate court by relying on above SA-517-1999

rulings which are legal issues. Admittedly, even when learned trial

court has answered issue nos. 1 to 3, 7 and 8 against

respondent/defendant, there is no cross objection or cross appeal.

23. In the light of above, there is force and substance in the point

raised in Second Appeal regarding non compliance of Order XLI Rule

31 as a result of which, this Court is constrained to grant the prayers

of remanding the appeal back for fresh consideration in toto, i.e. on

all issues, by affording opportunity to both sides to re-agitate their

claims. Hence, the following order:

ORDER

I. Second Appeal is partly allowed.

II. The matter is remanded to the first appellate court for fresh consideration.

III. The first appellate court shall make every endevour to deal with and decide the appeal as expeditiously as possible and more particularly within a period of six months from the date of appearance of the parties.