Calcutta High Court (Appellete Side)
Smt. Ratna Roy & Anr vs Sri Ramesh Chandra Biswas & Anr on 17 October, 2023
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE HARISH TANDON
And
THE HON'BLE JUSTICE PRASENJIT BISWAS
FA 98 OF 2018
With
CAN 7 (9424) of 2011
&
CAN 10 (8237) of 2019
Smt. Ratna Roy & Anr.
Vs.
Sri Ramesh Chandra Biswas & Anr.
For the petitioners : M r. Partha Pratim Roy, Adv.
Mr. Dyutiman Banerjee, Adv.
For the respondents : M r. Subhojit Mullick, Adv.
M r. Arijeet Das Mullick, Adv.
Judgment on : 17.10.2023
Prasenjit Biswas, J:-
1. The Instant appeal is preferred by the defendant/appellant
challenging the impugned judgment and decree passed by the learned Civil
Judge (Senior Division), 1st Court, Barasat, in connection with Title Suit No.
383 of 1995. The learned Trial Court held that the plaintiffs/respondents
are entitled to specific performance of contract and consequently, directed
the defendant/appellant to execute deed of sale transferring the suit
property in favour of the plaintiffs/respondents.
2. Being aggrieved by and dissatisfied with the judgment and
decree passed by the learned Trial Court, the instant appeal has been
preferred on behest of the appellant/defendant.
3. The ground for appeal is that the learned Trial Court did not
appreciate the evidence correctly and the decision arrived is perverse. It has
been canvassed that there was no agreement between the parties and the
said agreement for sale and other documents were fraudulently
manufactured by the plaintiff which will be revealed from his cross-
examination.
4. The another ground which is taken by the appellant is that
the learned Trial Court ought to have considered that the document in
question (exhibit 1) was manufactured by the plaintiffs as the hand written
portion in the body of the agreement was made by the plaintiff No. 1 who
has not made any explanation for it as well as to why the consideration was
reduced in place of actual consideration. Moreover, learned Trial Court
ought to have been relie d on the evidence adduced by DW3, Ratna Ghosh.
It is stated by the appellant that the plaintiffs under undue influence and
on some deceptive motive obtained the signatures of the appellant on
exhibit 1.
5. It is admitted position that the suit property belongs to the
defendant/appellant. It is the case of the plaintiff that the defendant by an
agreement dated 19.01.1994 agreed to sell the scheduled properties to
them at a consideration of Rs.1,27,632/- and this appellant in pursuance
of that agreement of sale received Rs.30,000 as earnest money on the date
of agreement for sale. Subsequently, Rs. 20,000 was further paid by the
plaintiffs to the defendant/appellant and as such the appellant/defendant
received Rs.50,000 in total from the plaintiffs as earnest money. The
plaintiffs repeatedly requested this appellant to complete the sale but she
avoided the sale on different pretext and finding no other way he sent
notices demanding the performance of the agreement by the appellant. This
appellant replied to those notices but ultimately did not execute the sale
deed in favour of the plaintiffs. As the plaintiffs were always ready and
willing to buy the scheduled property on payment of balance consideration
money but the defendant avoided the same and so under compelling
circumstances he took the shelter of the Court of law with a prayer for
decree for specific performance of contract against this appellant. After
getting summon from the Court this appellant/defendant entered
appearance in the suit and filed written statement denying all the
allegations as made out in the plaint. It is the stand point of the appellant
no.1 that at the relevant point of time as she required money to buy some
shares of a property at Kolkata, she procured a portion of that amount as a
loan from her husband's brother. As the appellant was not in a position to
repay the loan amount she took another loan from one Netai Das of her
village but she also failed to repay the loan amount which was taken from
Netai. It is stated by the defendant/appellant that to overcome the situation
she took loan of Rs. 40,000 from the plaintiff through her son-in-law and as
a security for the said loan she put some signatures on blank piece of
stamp papers and demy papers which had been subsequently converted by
the plaintiff/respondent to alleged agreement for sale of the suit property
with malafide intention. It is further stated by the defendant/appellant that
she had never intended to sell the suit property in favour of the
respondents/plaintiffs. As averred by the appellant that the respondent in
collusion with her son-in-law prepared and manufactured the alleged
agreement for sale with intention to grab the suit properties. It is also the
stand point of the appellant that the document in question is not an
agreement for sale and it is only a piece of document bearing her signature,
a security for loan and although she was very much ready and willing to
repay the loan amount which was taken by her but the
plaintiffs/respondents refused to accept the same with the malafide
intention. What must now be pointed out is that the appellant subsequently
pleaded that the agreement for sale is a product of fraud and the said
document was manufactured by the plaintiffs in respect of the scheduled
properties.
6. The learned Trial Court casted eight issues viz
i) Is the suit maintainable in its present form?
ii) Is the suit barred by limitation?
iii) Is the suit bad for non-joinder of any necessary
party?
iv) Had there been any agreement of sale for a
scheduled property between the parties?
v) Was the deed dated 19.01.1994 consciously
executed by the defendant?
vi) Was the deed dated 19.01.1994, a deed of
agreement for sale of the suit property or deed of loan?
vii) Is the plaintiff entitle d to any other relief as
claimed?
7. The case of the appellant is that the document in question
dated 19.01.1994 was comprised of a blank stamp paper and few blank
papers on which the appellant was made to put her signatures and the
respondents have subsequently typed an agreement for sale on those blank
papers which was never intended to be executed by the appellant herein. It
is contended by the appellant no.1 that she is almost illiterate and could
not understand the purport of the agreement dated 19.01.1994. In support
of her contention, three witnesses were examined in her favour. It is
assailed by the appellant no.1 that she had taken a loan to repay the other
loan and for such purpose she deposited the deeds of her property with the
respondents and signed on some stamp papers and blank papers.
8. On the other hand, it is contended on behalf of the respondent
that they have successfully discharged their burden of proof with regard to
the plaint case and fact asserted therein. In support of his submission
learned Counsel appearing on behalf of the respondents made reliance on
the decisions rendered by the Hon'ble Apex Court reported in 2015 (1) SSC
597 and 2006 (7) SSC Page 756. It is submitted on behalf of the
respondents that the appellants never denied or disputed the fact of receipt
of part consideration money and the respondent have all along shown their
readiness and willingness to make payment of the balance consideration
amount but the appellant no.1 never showed her willingness and readiness
to execute deed of sale in respect of the scheduled properties in favour of
the respondents.
9. It is further submitted by the learned Counsel on behest of the
respondents that they have successfully proved the plaint case and as such
there is no legality or infirmity in the impugned judgment and decree
passed by the learned Trial Court.
10. Rule 23-A to Order 41 CPC provides for a remand by an
appellate Court in an appeal against a decree if (I) the Trial Court disposed
of the case otherwise than on a preliminary point and (II) the decree is
reversed in appeal and a retrial is considered necessary. Thus, what is
mandated is that on twine conditions being satisfied the appellate Court
can exercise the same power of remand under Rule 23/A as it is under Rule
23.
11. Section 107(2) of CPC does invest the appellate Court with
some powers that are conferred on Court on original jurisdiction. It is a trite
law that it is a bounden duty of the appellate Court to see whether the
evidence taken as a whole can reasonably justify the conclusion which the
Trial Court arrived or at whether there is an element improbability arising
through a number of circumstances which in the opinion of the Court
outweighs such findings.
12. In above backdrops, when we revisite d the evidence on record
we hold that the most essential issue is as follows:-
"Whether the suit is without any cause of action and the
alleged document is forged and fabricated one?"
13. We, therefore, frame that issue. Without answering this, there
cannot be a proper decision in the instant case and in view of the matter
rehearing is necessary. Since, new issue has been casted, opportunity
needs to be provided to the rival parties to lead evidence on that issue
again. Learned trial court, as the record would clearly surface has not
considered this aspect of the matter and passed the above impugned
judgment in question without recording any clear-cut finding in this regard.
14. The impugned judgment and decree passed by the learned
Trial Court lacks sufficient reasons and does not at all analyze and
appreciate the evidence on record. The issues have al so not been properly
casted and, accordingly, judgment and decree passed by the learned Trial
Court is liable to be set aside.
15. In the result the judgment and decree dated 31.07.1999
passed in connection with Title Suit No. 383 of 1995 is hereby set aside. In
the heels of surrounding facts and circumstances, we are also of the
mindful opinion that the matter warrants remand to the learned Trial Court
for rehearing in the light of observation made hereinabove.
16. The case is remanded back to the court below for re -hearing of
the case after giving opportunity to either of the parties to lead evidence on
the issue framed by this Court only. The learned Trial Court would re-cast
the issue. He would add this issue that we have framed in this appeal to the
eight issues already on record and then proceed with the suit as per
procedure established by the law. Opportunity should be given to the
parties by the Trial Court to lead further evidence on the issue framed by
the Court if they so desire by keeping the evidence already adduced by the
parties in the record and deliver a fresh judgment. The parties to the
proceeding are directed to appear before the Trial Court and no further
notice is required to be sent to the either of the party.
17. The instant appeal be and the same is hereby allowed to the
aforesaid extent. In the facts and circumstances of the case there shall be
no order as to costs
18. Consequently, the applications, if any, in connection with the
appeal are hereby disposed of.
19. Urgent Photostat certified copy of this order, if applied for, be
given to the parties on payment of requisite fees.
I agree.
(Harish Tandon, J.)
(Prasenjit Biswas, J.)
