Calcutta High Court (Appellete Side)
Ct. 8 vs Santosh Kumar Rana on 10 February, 2022
FMA 1268 of 2021
Item-54 CAN 1 of 2021
10-02-2022
sg Amalesh Nanda & Ors.
Ct. 8
Versus
Santosh Kumar Rana
(Through Video Conference)
Mr. Suman Banerjee, Adv.
...for the appellants
Mr. Pradip Kumar Roy, Adv.
Mr. Joydeep Roy, Adv.
...for the respondent
By consent of the parties, the appeal and the application
are taken up together and dispose of by this common order.
The appellant filed a suit for specific performance. On the
basis of the pleadings and documents, ten issues were framed by
the learned Trial Judge for consideration. The issues are set out
herinbelow:
1. Whether the suit is maintainable in its present form
and prayer?
2. Whether the plaintiff has cause of action to institute
this suit?
3. Whether the suit is barred by the principles of
estoppel, waiver and acquiescence?
4. Whether the suit is barred by limitation?
5. Whether the suit is barred by defect of parties?
6. Whether Rabindranath Barik was constituted attorney
of the defendant no.-1? If so, whether he was
empowered to execute any agreement for sale on
behalf of the defendant no.-1?
7. Whether the alleged agreement for sale is valid and
legal one?
8. Whether the plaintiff was/is ready and willing to
perform his part of contract?
9. Whether the defendant nos.-2 and 3 are bona fide
transferee for value without notice of the alleged
agreement for sale?
10. Whether the plaintiff is entitled to get the decree as
prayed for?
The issue nos. 5, 6, 7, 8 and 9 were amalgamated and these
issues were decided against the plaintiff. This decree was
challenged before the learned Appellate Court, which does not
appear from the memorandum of appeal filed before the learned
Appellate Court that one of the grounds taken by the plaintiff was
that the plaintiff was prejudiced by the amalgamation of the
aforesaid issues. However, it is not in dispute that the evidences
were adduced by the parties in relation to the said issues.
It is the requirement of law that the Court shall state its
findings or decision with reasons upon each separate issue unless
the finding upon one or more of the issues is sufficient for the
decision of the suit. In the instant case, the learned Trial Court has
amalgamated few of the issues, namely, issue nos. 5 to 9 and
decide the said issues together upon analysis of the evidence. The
learned Appellate Court remanded the matter for fresh
consideration after noticing that initially on 20 th March, 2008,
these issues were framed and thereafter, on 7th April, 2011 three
more issues were added. However, there is no order of
amalgamation of the said issue.
It is elementary that, if the parties have led evidence even
in respect of the issues not specifically raised with a clear
intention that the Court should decide such or any of the issues
that come up in the course of trial and the parties having been
conscious of the said fact adduced evidence on such issues which
are not specifically framed, a party shall be estopped from
challenging that the judgment rendered on an issue not raised at
the trial. All that is required to be seen is whether there is a
pleading in support of such issue.
In the instant case, it is nobody's case that from a reading
of the pleadings the original issue nos. 1 to 6 or added issue nos. 1
to 3 could not have been framed. The issues are not de-horse the
pleading. The evidences were adduced. Recasting of issues on
such consideration would be a useless formality. The learned First
Appellate Court did not address the said issues in its proper
prospective. All evidence in support of the issues were before the
learned First Appellate Court. We feel that the learned First
Appellate Court in exercise of its appellate power ought to have
decided the appeal on merits instead of remanding the matter to
the learned Trial Court on the basis of the materials on record.
On such consideration, the order of the learned First
Appellate Court is set aside.
The learned Appellate Court is directed to decide the
appeal as expeditiously as possible within a reasonable time
without giving any adjournment to either of the parties unless it is
unavoidable.
Till the disposal of the appeal, the respondent shall not
dispose of and/or alienate the suit property.
With the above observations, the appeal and the
application are accordingly, disposed of.
Urgent photostat certified copy of this order, if applied for,
be supplied to the parties upon compliance of all requisite
formalities.
(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)
