Gauhati High Court

M/S Kamakhya Coal Pvt Limited vs Shri Parag Gogoi on 23 June, 2021

                                                                                        Page No.# 1/14

GAHC010137092017




                               THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                      Case No. : RSA/264/2017

             M/S KAMAKHYA COAL PVT LIMITED
             A CO. INCORPORATED UNDER THE COMPANIES ACT, 1956, HAVING ITS
             REGISTERED OFFICE AT A.T. ROAD, TINSUKIA, BEING REPRESENTED BY
             ITS DIRECTOR, SRI SURESH JAIN, S/O LATE PARMANAND JAIN, R/O 104
             COMFORT SHIVA RESIDENCY, 25 SHANTI ROAD, SHANTI NAGAR,
             BANGALORE-27


             VERSUS

             SHRI PARAG GOGOI
             S/O SHRI MANTRAJIT GOGOI, R/O BHIMPARA GAON, P.O. and P.S. AND
             DIST. TINSUKI, ASSAM, PIN 786125


Advocate for the Petitioner : MR.S K CHAKRABORTY
Advocate for the Respondent : MR. M K CHOUDHURY

BEFORE HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA

Date : Date of hearing : 27.1.2021 Date of judgment : 23.6.2021

JUDGMENT & ORDER(CAV)

Heard Mr. P. K. Roy the learned counsel for the appellant and Mr. M.K.Choudhury, the learned Senior counsel assisted by Mr. A. Barkataki the learned counsel for the sole respondent.

2. The judgment and decree dated 10.3.2017 and 16.3.2017 respectively passed by the learned Civil Judge, Tinsukia in T.A. No. 10/2016 is put under challenge dismissing the first appeal of the appellant Page No.# 2/14

and allowing the cross objection of the defendant respondent.

3. The plaintiff appellant, M/s Kamakhya Coal Pvt. Ltd. a Company incorporated under the Companies Act,1956 represented by its Director filed T.S. No. 44 of 2008 in the court of learned Munsiff at Tinsukia against the sole defendant-respondent seeking for declaration of its right, title and interest, recovery of possession and injunction in respect of the suit land measuring 20 bighas. 4 The plaintiff appellant company purchased the suit land vide registered sale deed No. 240/1985 from one Jagannath Paul and delivered with the possession thereof which continued till dispossessed by the defendant respondent. The name of the plaintiff appellant was mutated in respect of the suit land vide order dated 30.5.1985 of the concerned Circle Officer. In the month of July 2004 the representatives of the plaintiff appellant came to learn that the defendant respondent mutated his name over the suit land as per the order of the Circle Officer, Tinsukia Revenue Circle in place of the plaintiff appellant. A separate patta was also issued in favour of the defendant respondent on revenue partition of the suit land. The representatives of plaintiff appellant were obstructed by the defendant respondent in the month of August 2004 when the said representatives visited the suit land.

5. The plaintiff appellant filed an appeal before the Addl. Deputy Commissioner, Tinsukia challenging an order dated 2.1.1997 passed by the said Addl. Deputy Commissioner affirming the mutation of the defendant respondent. Though the same was registered as Revenue Appeal No. 6/2004 but the Addl. Deputy Commissioner refused to interfere and dropped the same. R.A (Tin) No. 23/2005 was filed before the Hon'ble Assam Board of Revenue challenging the order dated 15.9.2004 vide which Revenue Appeal No. 6/2004 was dropped. R.A(Tin) No. 23/2005 was dismissed vide judgment dated 19.12.2007 on the ground that the order dated 2.1.1997 of the Addl. Deputy Commissioner, Tinsukia was not challenged. However the Hon'ble Board gave the liberty to the plaintiff-appellant to file civil suit. A review petition was filed against the order of dismissal in RA(Tin) No. 23/2005 which was allowed remanding the matter for fresh disposal by the Deputy Commissioner, Tinsukia. Pleading further that the defendant respondent taking the advantage of absence of the representatives of the plaintiff company unauthorisedly trespassed and dispossessed the plaintiff appellant from the suit land and illegally mutated his name. Accordingly, the suit was filed for the reliefs stated hereinabove.

6. The defendant respondent filed his written statement pleading that the suit was not maintainable both under the facts and law. The plaintiff appellant had no right to sue as the name of plaintiff company was struck off from the register of Registrar of Companies(ROC), Shillong. No company existed under the name and style,"Kamakhya Coal Pvt. Ltd." as such the existence of the director of the said company does not arise. It was specifically pleaded that the plaintiff appellant had no right, title and interest over the suit land, denied execution of the sale deed by Jagannath Paul and delivery of possession of the suit land.

7. The defendant respondent pleaded that he had been in uninterrupted possession of the suit land continuously from 1990 initially by raising tea nursery and in the year 1994 by constructing godown on the eastern part over the suit land. After uprooting the tea bushes he dug a pond thereon . In the year 1999/2000 he constructed residential houses over the western side of the suit land. Prior to that in 1994 he constructed boundary wall on the northern boundary keeping the entrances with iron gates. His possession since 1990 was open with wide publicity and hostility adverse to the true owner. He acquired title over the suit land after perfection by way of adverse possession. His name was mutated over the suit land by the land revenue officials in place of the plaintiff appellant on the basis of long possession. The concerned Revenue Officials partitioned the suit land and the entire suit land was brought under Patta No. 62 with various Dag numbers and to that effect a separate patta was issued to him on 13.01.2000. In July 2000 he availed a bank loan by mortgaging the suit land from the Punjab Page No.# 3/14

National Bank. The defendant also took the plea that the suit was barred by law of limitation. Accordingly the defendant appellant sought for dismissal of the suit.

8. On the basis of the aforesaid pleadings the learned court of Munsiff, Tinsukia framed the following issues:

(1) Whether the suit is maintainable in law and facts ?

(2) Whether the plaintiff has right, title and interest over the suit land ?

(3) Whether the plaintiff is entitled to recover the possession of the suit land from the defendant ?

(4) Whether the plaintiff is entitled to the reliefs prayed for?

(5) To what other reliefs (if any) the parties are entitled to ?

9. The plaintiff appellant company adduced its director, PW-1 as the only witness and exhibited various documents as exhibits. Ext.1 is the certificate of incorporation of the plaintiff company, Ext.2 certified true copy of the resolution passed in meeting of Board of Directors dated 3.11.2008, Ext. 3, certified copy of regd. sale deed No. 240/1985 and rest of the Exts. 4 to 11 are Jamabandi , various orders passed by the Revenue Courts.

10. The defendant respondent examined in total 7 (seven) witnesses including himself as DW-1. He also exhibited various documents as exhibits which include land documents, loan documents, permission for construction by Tinsukia Development Authority, Ext.HH being the reply of Registrar of Companies (ROC), Shillong dated 3.4.2009 supporting the fact of striking out the name of the plaintiff company from the register of ROC u/s 560 of the Companies Act, 1956.

11. The learned trial court decided the issue No. 1 in respect of maintainability of the suit against the plaintiff appellant. The court below considered Ext. H H which affirmed striking out the name of plaintiff appellant company from the register of ROC u/s 560 (5) Companies Act, 1956 on 30.10.2007. The suit was filed on 17.12.2008 on which date the company was no longer a juristic person. The court below considered Ext. 2 purportedly a certified copy of the resolution passed in the meeting of Board of Directors of the plaintiff appellant company on 3.11.2008 wherein the said director, Sri Suresh Kumar Jain(PW-1) representing the plaintiff company was authorized to represent the company in the matter of any legal action against the defendant respondent. The said resolution was not signed by other directors except the said Sri Suresh Kumar Jain inasmuch as Ext. 1, Memorandum of Association of the plaintiff company indicated three directors. So Ext. 2 cannot be construed as a document authorizing Sri Suresh Kumar Jain to represent the plaintiff company in the suit. The plaintiff appellant failed to discharge the onus that its name was restored in the register of ROC. Accordingly the suit was not maintainable .

(12) The issue No. 2 as to the right, title and interest of the plaintiff appellant was decided in favour

of the plaintiff appellant by the learned trial court. The court below considered the defence of

defendant respondent, the denial of purchase of the suit land by plaintiff appellant and also the plea

of adverse possession . It considered the Ext. 3, copy of the sale deed and had drawn the presumption Page No.# 4/14

that the registered document was validly executed relying the decision of the Apex Court in Prem

Singh and ors Vs Birbal and ors reported in (2006) 5 SCC 353. Defendant respondent failed to dislodge

such presumption and as the defendant in his cross examination as DW 1 deposed that he had no

document of purchase of the suit land from its owner i.e. plaintiff, the learned trial court came to the

finding that the defendant admitted the ownership of the plaintiff company over the suit land. Further

as the defendant claiming adverse possession of the suit land failed to mention the name of the true

owner nor the specific date of entry over the suit land and the manner in which he came into

possession of the suit land coupled with the fact that the defendant paid the land revenue of the suit

land in the name of the plaintiff appellant as such the issue was decided in favour of the plaintiff

appellant. But as the suit was not maintainable the plaintiff appellant was not entitled for the reliefs.

Accordingly the trial court dismissed the suit vide judgment and decree dated 22.3.2016.

(13) Being aggrieved, the plaintiff appellant preferred T.A.No. 10 of 2016 in the court of learned Civil Judge, Tinsukia challenging the judgment and decree dated 22.3.2016. The learned first appellate court vide the judgment and decree dated respectively 10.3.2017 and 16.3.2017 dismissed the appeal deciding the issue No.1 regarding maintainability of the suit against the appellant. Further the first appellate court also reversed the finding of the trial court in issue No. 2 holding that the plaintiff appellant failed to prove its ownership over the suit land. The defendant respondent filed cross objection in the said T.A. No. 10/2016 on 29.8.2016. In the said cross objection it was raised that the trial court failed to take into account the specific denial of the defendant respondent that plaintiff appellant was not the absolute owner of the suit land by way of purchase vide sale deed No. 240/1985 and of execution of the sale deed by Jagannath Paul and erroneously put the burden on the defendant respondent for dislodging of the presumption of due execution of the sale deed. The suit was barred by limitation . But no such issue was framed on the point of limitation. These are the two grounds mainly taken in the cross objection assailing the finding in issue No. 2 by the trial court amongst others.

(14) The first appellate court did not agree with the reasonings of the trial court while deciding the issue No. 1. The plaintiff appellant filed Co. Pet 5/2010 before this court(Tribunal) seeking restoration of its 'Active' status in the register of ROC, Shillong and vide order dated 4.10. 2010 this court directed the ROC Shillong to revive the " Active" status from the " strike off" status within 7 days from the receipt of the certified copy of the order. In compliance of the said order the status of the plaintiff company was restored to 'Active ' one and the plaintiff appellant downloaded the same from Company Masters Details and a print out was submitted to the first appellate court on 29.4.2016. (15) The first appellate court considered the said order dated 4.10.2010 and verified the status in the concerned portal and held that the plaintiff company was in existence at the time of filing the suit . But the first appellate court after verifying the Memorandum of Association and the deposition of the PW 1 held that the said Suresh Kumar Jain was not vested with the power by the Memorandum Page No.# 5/14

and the Articles to institute a suit and the suit cannot be held to be validly instituted. (16) The first appellate court also considered the point of limitation as raised in the cross objection and held that the suit was filed within the stipulated period of limitation. On the other hand, the first appellate court reversed the finding of the trial court in the issue No. 2.The first appellate court held that though DW 1 (defendant respondent) admitted the ownership of the plaintiff appellant as held by the trial court but the same cannot dispense with the proof of execution of the sale deed by the vendor. Under such circumstances the evidence of the scribe and the attesting witnesses of the sale deed were vital in the light of Section 68 of Indian Evidence Act. Regarding the decision of the trial court taking the aid of mutation of the name of the plaintiff company over the suit land while deciding issue No. 2, the first appellate court held that entries in Jamabandi of the name and the mutation of the plaintiff does not help in declaring the right, title and interest. The first appellate court did not accept the submission of the plaintiff appellant for drawing the presumption u/s 90 of the Evidence Act in respect of the sale deed and accordingly reversed the finding of the trial court. Thus the T.A. No. 10/2016 was dismissed.

(17) The plaintiff appellant filed this Second appeal challenging the judgment and decree passed in T.A. No. 10/2016 which was admitted on 24.8.2017 after formulation of the following substantial questions of law:

(A) Whether the learned first appellate court while arriving at the finding that the suit has not been instituted by authorised person of the company over looked the provisions of Order VI Rule 14 as well as the provisions of Order XXIX Rule 1 CPC ?

(B) Whether the reversal of the finding of issue No. 2 is proper on the face of the pleadings of the parties to the suit ?

(18) Mr. Roy argued that the first appellate court without there being any pleadings on the part of the defendant respondent accepted a new plea taken by the defendant respondent and held that the suit was not maintainable as it was not filed by a person duly authorized by the Company. (19) Mr Roy relied the decision of the Apex Court in United Bank of India -Vs- Naresh Kumar and Ors

reported in (1996) 6 SCC 660 and submitted that the plaint was signed and verified on behalf of the

plaintiff company by one of its directors being able to depose to the facts of the case and in fact

deposed as PW 1 in support of the pleadings. In view of the provisions contained in Order XXIX

Rule 1 read with Order VI Rule 14 of the CPC, the first appellate court erred in holding that the said

director who filed the suit was not duly authorized by the plaintiff appellant company. The defendant

respondent in the absence of pleading could not have made a new case for the first time in the appeal

beyond its pleadings. The observation of the first appellate court that none of the directors were

examined to substantiate that they ratified the act of the director filing and verifying the plaint was

perverse and liable to be set aside inasmuch as the substantive right of a party should not be Page No.# 6/14

allowed to be defeated on account of procedural irregularity as held in United Bank of India Vs

Naresh Kumar (supra).

(20) Mr. Choudhury, the learned Senior counsel on behalf of defendant respondent argued that as per documents exhibited by the plaintiff-appellant, the company had three directors. PW 1, the director representing the company relied Ext. 2 purportedly to be a certified true copy of the resolution passed in a meeting of Board of Directors on 3.11.2008 whereby the PW 1 was authorized to file the suit. The first appellate court rightly came to its finding that the Ext. 2 did not bear signature of other directors of the company alongwith the common seal of the company and held that unless a power to institute a suit was specifically conferred on a particular director passing a valid resolution in the meeting of Board of Directors, the suit could not be held to be instituted by a properly authorised person. The trial court was of the same view concurred by the first appellate court. Further the first appellate court rightly held that none of the other directors deposed before the court ratifying the act of the PW 1 in filing the suit representing the appellant company.

21. Mr. Choudhury submitted further that the suit was filed on 17.1.2008 whereas Ext HH supported the fact that the name of the company was struck off from the register of the ROC on 30.10.2007 which shows clearly that on the date of filing the suit, the plaintiff company was no longer a juristic person and not in existence legally. No evidence was put on record to show that the company revived its 'active' status prior to filing of the suit. The order dated 4.10.2010 passed by this court in Co.Pet. No. 5/2010 was placed before the first appellate court during the argument stage which was not connected with the suit filed by the plaintiff appellant. Though a direction was given to the ROC to revive the "Active" status from " strike off " status but nowhere it was placed on record the date from which the "active" status came into force. Accordingly the order dated 4.10.2010 having not exhibited and proved, the same cannot help the plaintiff appellant. There was no application under Order 41 Rule 27 of the CPC seeking leave to adduce additional evidence to bring on record the order dated 4.10.2010. The proviso to Rule 14 of Order VI CPC does not come into play on the basis of the factual matrix of the case in hand inasmuch as on the date of filing the suit the plaintiff company was not in existence . On the similar ground the provision of Order XXIX Rule 1 CPC would also have no application. Accordingly Mr. Choudhury sought for a decision against the appellant in substantial question of law No.A.

22. Mr. Roy the learned counsel for the plaintiff appellant in response to the submission of Mr.

Choudhury supported the act of the learned first appellate court in taking into consideration the order

dated 4.10.2010 passed by this court in Co.Pet No. 5/2010 while holding that the company was

"active" at the time of filing the suit. Relying the decision in Ramesh Kumar-vs- Kesho Ram reported

in AIR 1992 SC 700 it was submitted by Mr. Roy that though rights are adjudicated of the litigants on

the basis of the pleadings as on the date of commencement of the lis but whenever subsequent event

of fact or law having material bearing on the entitlement of the parties to the reliefs, the court can

consider the subsequent events taking a cautious approach. He also relied the ratio held by the Apex Page No.# 7/14

Court in P. Venkateswarlu-vs- The Motor and General Trader reported in AIR 1975 SC 1409 that if a fact,

arising after the lis had come to court and had a fundamental impact on the right to relief or the

manner of moulding it, same being brought diligently to the notice of the tribunal it cannot blink at it

etc. Referring Sections 560(6) and 560(7) of the Companies Act, 1956 it was submitted that upon

restoration of the company from the 'strike off' status to 'active' status the company deemed to have

continued in existence as if its name had not been struck off. Accordingly the first appellate court

rightly considered the subsequent events brought before it as the same had its fundamental impact on

the right to relief of the plaintiff appellant.

Substantial Question No. A.

Whether the learned first appellate court while arriving at the finding that the suit has not been instituted by authorized person of the company overlooked the provisions of Order VI Rule 14 as well as the provisions of Order XXIX Rule 1 CPC ?

23. I have considered the submissions of the learned counsel and perused the LCR. The plaintiff appellant is

a company registered under the Companies Act, 1956. Order XXIX Rule 1 of the CPC stipulates , in suits by

or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary

or by any director or principal officer of the corporation who is able to depose to the facts of the case. This

requirement is for the satisfaction of the provision under Order VI Rule 14 of the CPC which stipulates that

every pleading shall be signed by the party and his pleader. The word 'party' in the case of a corporation must

satisfy the criteria stipulated in Order XXIX Rule 1 CPC. In the present case in hand, one Sri Suresh Kumar Jain

had signed and verified the pleadings as the director of the plaintiff company. The defendant respondent in

his written statement took the plea that suit was not maintainable both under the law and facts. The

plaintiff appellant had no right to sue as the name of the plaintiff company was struck off from the

company does not arise. The plaintiff appellant was put to strict proof regarding existence of the

company. The trial court on the basis of the pleadings framed the issue of maintainability of the suit.

24. The said director, Suresh Kumar Jain adduced his evidence as PW-1 and exhibited Ext.1, Page No.# 8/14

certificate of incorporation of the company alongwith the Memorandum of Association. As per the Memorandum of Association there are three directors including Sri Suresh Kumar Jain. Ext.2 is the certified true copy of the resolution passed in the meeting of Board of Directors of the plaintiff company held on 3.11.2008 at Tinsukia authorizing the director, Sri Suresh Kumar Jain to represent the company in the matter of any legal action against the defendant respondent. He was further authorized to sign vakalatnama, etc. (25.) The learned first appellate court considered the Exhibits 1 and 2. From the Memorandum of Association the appellate court verified the names of directors and took note of the cross examination of PW-1 that one of the directors resigned without any documents to that effect. The Ext. 2 does not bear the signature of the other director alongwith the common seal of the company. Accordingly as the said Sri Suresh Kumar Jain, director was not vested with the power by the Memorandum and Articles to institute a suit and Ext 2 does not bear the signatures of other directors as such the suit cannot be held to be validly instituted. Moreover none of the other directors were examined to substantiate the ratification of the act of Sri Suresh Kumar Jain in signing the pleadings and instituting the suit. In view of the same it was held that the suit was not instituted by the authorized person of the company.

(26) The defendant appellant as hereinabove stated took the defence that the suit is not maintainable as there was no existence of the company due to striking out of the name of the company from the register of ROC on the date of filing the suit. For the same reason question of representing the company by the director does not arise. There was no specific defence that the director, Suresh Kumar Jain was not authorized by the Board of Directors to institute the suit by signing the pleadings and verification nor any other defence except the one referred above . On the basis of the pleadings the issue was framed whether the suit is maintainable under the facts and law. The director, PW 1 in order to establish the fact that he is a director of the company exhibited the certificate of incorporation and the Memorandum of Association as Ext.1 and the certified true copy of resolution of the meeting of Board of Directors dtd. 3.11.2008 authorizing the said Suresh Kumar Jain to file the suit as Ext. 2. The learned first appellate court verified the Memorandum of Association and recorded its finding that the name of Suresh Kumar Jain was shown as director alongwith two others. Accordingly the fact that Suresh Kumar Jain was one of the directors of the company was established. But as the Ext. 2 does not bear the signatures of other directors and the common seal of the company coupled with there being no witnesses ratifying the act of the said Suresh Kumar Jain in filing the suit so the first appellate court held that the said Suresh Kumar Jain, director was not duly authorised by the company. (27) There was no specific issue to that effect inasmuch nothing was pleaded specifically in the written statement of the defendant respondent under such circumstances the question of adducing other witnesses ratifying the act of filing the suit by the PW-1 does not arise at all. In my view an issue of maintainability of a suit must be framed strictly on the pleadings of the parties. A mere statement in the pleadings that the suit is not maintainable and framing of an issue to that effect cannot fulfil the intent of framing issues in the suit which is primarily for identifying issues leading to the disputes between the parties to a lis and for leading material evidence by the parties to the suit in the respective issues corresponding to 'facts in issue' as interpreted in Section 3 of the Evidence Act. (28) In D.M.Lahiri-Vs- Rajendra Nath, reported in AIR 1971, A & N,143 Hon'ble Division of this

Court while discussing the object of framing issues in a suit held as follows:-

"10. We may observe that a court should decline to frame an issue as to maintainability of a suit in absence of Page No.# 9/14

specific averment in the written statement as to how and in what circumstances the same is not maintainable in

law. A mere vague recital in the written statement, without anything more, cannot be the basis for raising such an

issue. Issues are framed for a right decision of the case with an object to pinpoint the real and substantial points of

difference between the parties specifically and unambiguously emerging out of the pleadings. Vague issues,

suggested in a mechanical way, should not be framed to keep the door open for astute casuistry as a suit proceeds

at different levels leading inevitably to the law's delay. The court has to own its own responsibility in framing

issues".

(29). In the present case as per the pleadings in the written statement the issue of maintainability was framed on the ground that the name of the plaintiff appellant company was struck off from the register of ROC prior to filing of the suit and on the date of filing the company had no existence . Trial court decided the issue holding that the suit was not maintainable . But the first appellate court reversing the finding of the trial court and holding that the company was in existence on the date of filing decided the issue on some grounds not even pleaded in the written statement. The first appellate court cannot do that affecting the right of the plaintiff appellant. (30) The first appellate court was satisfied that the said PW 1 was one of the directors of the company. Vide the resolution dated 3.11.2008 in the meeting of Board of Directors, the PW 1 was authorized to take legal action against the defendant respondent with further authority to sign and verify the plaint, give evidence etc on behalf of the appellant company. Accordingly the PW 1 representing the appellant company satisfied the requirement of Order XXIX Rule 1 and Order VI Rule 14 of the CPC. The first appellate court failed to substantiate its findings that there was non compliance of any substantive law for which the PW 1 could not be held to be authorized by the appellant company. The reasons cited while coming to the conclusion in the said issue of maintainability were not specifically pleaded and as such the findings are liable to be interfered inasmuch as it is reiterated that the director Suresh Kumar Jain fulfilled the criteria as required under Order XXIX Rule 1 CPC. If upon consideration of the facts pleaded and proved , the court comes to irrestible conclusion that the same is hit under any provision of a substantive law then the court has the authority to hold the issue against the plaintiff appellant even if there is no pleading to that effect. Accordingly the substantial question of law No.A is decided in favour of the plaintiff appellant holding that the suit was duly instituted by the authorised director, Sri Suresh Kumar Jain on behalf of the plaintiff appellant company as required under Order XXIX Rule 1 CPC. (31.) Though Mr. Choudhury while arguing submitted that the first appellate court was not correct in

considering the order dated 4.10.2010 passed in Co.Pet No. 5/2010 without proving the same I am

not agreeable to it. The first appellate court verified the concerned portal and came to the

conclusion that in terms of the order of this court(Tribunal) the plaintiff appellant company was

revived with the 'Active' status . Section 560(6) of the Companies Act, 1956 stipulates a period of

20(twenty years) from the date of publication in the Official Gazette of the notice striking the name Page No.# 10/14

of the company off the register to move an application before the Tribunal by the affected company

for restoration of the name of the company in the register . Ext. HH shows that the name of the

company was struck off from the register on 30.10.2007 and the representatives of the company

approached the Tribunal ( this Court) in the year 2010 i.e. within the stipulated period of 20 years . The

certified copy of the order dated 4.10.2010 passed in Co.Pet No. 5/2010 shows that a direction was

issued to the ROC to put the name of company in the register with active status. Section 560(7)

stipulates that once a certified copy of the order passed under sub-Section (6) of Section 560 being

delivered to the ROC, the company shall be deemed to have continued in existence as if the name had

not been struck off. There is no dispute that on the basis of the order dated 4.10.2010 the company was

shown as 'Active' which was verified by the first appellate in the relevant portal of the ROC and

rightly held that the company was active on the date of filing the suit . The court has the authority to

hold as such on the strength of the deeming provision u/s 560(7). In P. Venkateswarlu - vs- The Motor

and General Trader (supra), the Apex Court held that if a fact arising after the lis has come to the court

and has a fundamental impact on the right to relief, or manner of moulding the relief the court

cannot blink at it.

(32) The trial court decided the suit vide judgment and decree dated 22.3.2016. The order satisfying the criteria stipulated in Section 560(7) of the Companies Act, 1956 was passed on 4.10.2010 and on the strength of the said order the company received its 'active' status w.e.f. 30.10.2007 prior to the date of filing the suit on 17.12.2008. Accordingly the first appellate court rightly took note of the subsequent development and correctly held that company was in existence on the date of filing the suit. The appellate court has the power under Order XLI Rule 33 CPC to pass such order which ought to have been passed by the trial court on the basis of Section 560(7) Companies Act, 1956 which is the mandate of the law. The power under Order XLI Rule 33 CPC of the appellate court is wide in order to do complete justice to the parties in a lis and the first appellate court is well within its power which requires no interference.

Substantial Question No. B.

Whether reversal of the finding of issue No. 2 is proper on the face of the pleadings of the parties to the suit ?

(33.) Mr. Roy, the learned counsel for the plaintiff appellant assailed the act of putting the burden of

proof with regard to the fact of execution of the sale deed Ext. 3 on the plaintiff appellant as wrong Page No.# 11/14

by the first appellate court. This was due to the admission of DW 1, the defendant respondent in his

cross examination that in the year 1991 he came to know that the land belonged to the plaintiff

appellant and he also knew that the name of plaintiff appellant was recorded in the land records

against which he paid land revenue. For the said admission the learned court below was wrong in

disbelieving the execution of the sale deed, Ext. 3. Mr. Roy also submitted that there was no denial of

execution of Ext. 3 by the executor, Jagannath Paul so the question of citing attesting witnesses of the

Ext. 3 in proof of execution of Ext. 3 does not arise. The court below wrongly put the emphasis on

Section 68 of the Evidence Act. Relying the ratio in Prem Singh and ors -vs - Birbal and ors reported in

(2006) 5 SCC 353 ,Mr. Roy argued there is a presumption always that a registered document was validly

executed. Such presumption arises u/s 114(c) of the Evidence Act and as per Section 4 of the Evidence

Act the Court below ought to have accepted the fact of execution of Ext. 3 as there was no evidence

on record disproving the fact of execution . The court below failed to appreciate the evidence on

record amounting to perversity in regard to the findings of issue No. 2. In support of the presumption

flowing out of the official acts done by the Registrar while registration of a document is done after its

execution, Mr. Roy relies the decision of the Apex Court in Pentakota Satyanarayan and ors -vs-

Pentakota Seetharanam and ors reported in AIR 2005 SC 4362.

(34) Mr. Roy submitted that there was no specific denial of execution of the Ext. 3, sale deed by

Jagannath Paul in the written statement except denial of ownership of the plaintiff appellant by way of

purchase deed. The onus did not shift to the plaintiff appellant to prove the execution of Ext. 3 except

the inflexible burden which the plaintiff appellant bound to discharge u/s 101 of Evidence Act. The

initial onus u/s 102 of the Evidence Act was discharged by producing the Ext. 3 in order to prove the

fact of sale transaction .In support Mr.Roy relied the decision of the Apex Court in Anil Rishi vs

Gurbaksh Singh reported in (2006) 5 SCC 558.

(35) Mr. Roy also referring to the records of T.S. 44/2008 submitted that the plaintiff appellant vide Page No.# 12/14

its petition 1453/09 prayed before the trial court to call official witnesses from the office of Sub Registrar, Tinsukia in order to proof the execution and registration of Ext. 3 which the learned trial court decided to take up for hearing after completion of the evidence of the witnesses not required summoning by the court. But as the DW 1 admitted the ownership of the appellant company over the suit land, the court below did not call for official witnesses. Thus as the Ext. 3 was not disputed in respect of its execution by the executor as such the same does not fall within the sweep of Section 68 of the Evidence Act. Accordingly on the aforesaid submissions Mr. Roy urged the second substantial question of law required to be decided in favour of the appellant reversing the finding of the appellate court in issue No. 2.

(36) Mr. Choudhury , the learned Senior counsel for the defendant respondent made a reference to the pleadings in the plaint wherein it was pleaded that the plaintiff appellant acquired ownership over the suit land by way of purchase vide registered sale deed No. 240/1985. The same was mutated in the name of the plaintiff appellant in the revenue records. The defendant respondent denied the sale deed and the sale transaction. As such it was necessary to prove the execution of the sale deed in accordance with law.

(37) The plaintiff appellant failed to prove the execution of the Ext. 3 (sale deed) nor the scribe and /or attesting witnesses were examined as required u/s 68 of the Evidence Act which was rightly held by the appellate court. The court below also observed that the plaintiff appellant failed to prove its possession over the suit land. The argument on behalf of the plaintiff appellant to the effect that since the sale deed dated 2.2.1985 was 30 years old, a presumption could be drawn u/s 90 of the Evidence Act was rejected by the first appellate court as on the date of filing of Ext. 3 in the court alongwith the plaint i.e. on 17.12.2008 and on the date i.e. 16.12.2009 on which the Ext.3 was exhibited, the period of 30 years was not completed. For the said reason the presumption was disallowed. In view of the above the first appellate court made no mistake in giving its finding in issue No. 2 by reversing the finding of the trial court.

(38) The submissions of the counsel are considered. The suit is for declaration of right, title and interest of the plaintiff appellant company over the suit land and other consequential reliefs like recovery of possession, injunction etc. The plaintiff appellant in its plaint pleaded that the suit land was purchased from one Jagannath Paul who executed the Ext.3 sale deed and delivered possession. So the plaintiff appellant derived the title over the suit land upon execution of the sale deed by the vendor Jagannath Paul. On the other hand the defendant respondent in his written statement denied purchase of the suit land vide registered sale deed No. 240/1985 dated 2.2.1985 from Jagannath Paul and the delivery of possession by the said vendor. The trial court framed issue No. 2 whether the plaintiff has right, title and interest over the suit land upon consideration of the pleadings of the parties to the suit. (39) The PW 1 , the sole witness of the plaintiff appellant exhibited the copy of the regd. sale deed bearing No. 240/ 1985 as Ext. 3 (proved in original). No other witness /witnesses were adduced in order to prove the execution of the Ext. 3 by its executant Jagannath Paul. In his cross examination he stated that Tarachand Agarwal and Smti Rita Dutta, D/O Jagannath Paul were the witnesses in Ext. 3 but he does not know where they reside. The PW 1 exhibited the signatures of the executant Jagannath Paul as Ext. 3(1) to 3 (10).

(40) The trial court held that Ext.3 being a registered document so it was presumed that the Ext.3 was validly executed . The defendant respondent failed to dislodge the said presumption. Then the trial court referred to a particular statement made by the defendant respondent as DW 1 in his cross examination that he had no document of purchase of the suit land from its owner i.e. plaintiff and on the basis of the said deposition held that the defendant respondent admitted the ownership of the plaintiff appellant over the suit land.The trial court also came to the finding that the defendant Page No.# 13/14

respondent denied that the plaintiff was the owner of the suit land and totally silent in the written statement as to the identity of the true owner of the suit land on the face of his plea of adverse possession over the suit land. The trial court considered the mutation of the name of the plaintiff appellant over the suit land and decided the issue No. 2 in favour of the plaintiff appellant. (41) The first appellate court while reversing the aforesaid finding of the trial court observed that the PW 1 Suresh Kumar Jain exhibited the signatures of the vendor Jagannath Paul in the Ext. 3, sale deed . The PW 1 in his entire evidence was silent as to his presence at the time of execution of Ext. 3 nor there was any statement that the vendor put his signature in his presence and how he could identify his signatures. It is also observed that though DW 1 could be said to have admitted the ownership of the plaintiff appellant but the same does not amount to proof of execution of Ext.3 . Under the said circumstance only the first appellate court held the requirement of examination of the scribe and the attesting witnesses in order to prove the execution of Ext.3 as laid down in Section 68 of the Evidence Act. Accordingly the first appellate court held that the plaintiff appellant failed to prove the execution of the Ext. 3 and reversed the finding of the trial court. (42). If the findings of the trial court is considered it failed to take note of the inflexible burden on the plaintiff appellant u/s 101 of the Evidence Act in its proper perspective vis-à-vis the pleadings of the parties. The said Section 101 stipulates that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those fact exist. So as the plaintiff appellant claimed its rights, title and interest over the suit land on the strength of the Ext. 3, production of the sale deed would have been sufficient for satisfaction of Section 101 of the Evidence Act. But the defendant respondent in the written statement denied purchase of the suit land vide the sale deed Ext. 3. Under such a situation the plaintiff appellant is required to discharge the onus put on it to prove that there was due execution of the Ext.3 by the vendor Jagannath Paul u/s 102 of the Evidence Act which stipulates that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. But the trial court failed to consider that aspect and on mere presumption coupled with admission of the DW 1 decided the issue No. 2. In the facts and circumstances of the present case in hand and the pleadings, apparently, the PW 1 , Suresh Kumar Jain failed to discharge the onus put on him by the defendant respondent u/s 102 of the Evidence Act. Moreover the trial court was wrong in putting the burden on the defendant respondent to dislodge the presumption which the registered document carry u/s 114(c) of the Evidence Act . Admission of the defendant respondent of the title of the plaintiff appellant cannot discharge the onus of plaintiff appellant to prove the execution of Ext. 3 moreso when the plaintiff appellant failed to prove its possession over the suit land since the date of purchase. There is no specific mention in regard to the date of dispossession of the plaintiff appellant from the suit land by the defendant respondent who enjoyed the status of 'land holder' under the Land Revenue Regulation after being granted the kheraj periodic patta to him.

(43) From the records it is found that there is no denial of execution of the sale deed by the executant, Jagannath Paul . It is not mandatory that a sale deed requires attestation by witnesses and as such the manner and proof of execution of the sale deed does not fall within the sweep of Section 68 of the Evidence Act. But when the fact of execution is disputed in the form of the stand taken by the defendant respondent that he specifically denied purchase of the suit land vide regd. sale deed No. 240/1985 (Ext 3), then irrespective of the stipulation in Section 68 of the Evidence Act if there are any attesting witnesses or scribe, examination of such witnesses become necessary to prove the execution of the sale deed . Accordingly I do not find any wrong application of the provision of Section 68 of the Evidence Act by the first appellate court as raised by Mr. Roy.

In view of the discussions the second substantial question of law is decided against the plaintiff Page No.# 14/14

appellant thereby upholding the finding of the first appellate court in issue No. 2. (44). The respondent defendant at a belated stage after this second appeal was fixed for hearing out of turn, filed a cross objection which is yet to be registered due to delay in filing alongwith a delay condonation petition. I have heard both the learned counsel and is of considered opinion that the cross objection under Order XLI Rule 22 CPC is not required inasmuch as the first appellate court had already decided the cross objection of the defendant respondent wherein the cross objector pressed for taking up the issue of limitation as the defendant respondent raised the plea of adverse possession. On perusal of the impugned judgment I am satisfied that the first appellate court rightly considered the pleadings of the defendant respondent wherein the ownership of the plaintiff appellant was denied and moreover he failed to prove the fact that his possession over the suit land was hostile and adverse to the plaintiff appellant and it was within the knowledge of the representatives of the plaintiff appellant including its director, Suresh Kumar Jain that the same was adverse to the interest of the plaintiff appellant from the date of entry of the defendant respondent. The learned first appellate court took note of the pleadings in the plaint and held that the suit was filed within the period of limitation.

(45). In an appeal the respondent may support the decree on grounds decided against him by the lower court. A cross objection as stipulated under Order XLI Rule 22 CPC is necessary only when the respondent wants to take any cross objection to the decree which he could have taken by way of an appeal. The respondent in the present case is not aggrieved by the decree under challenge in this appeal. For raising any objection against the finding on any issue in order to argue that the finding ought to be in his favour, in my considered opinion the respondent is not required to file a cross objection. For the aforesaid reasons the IA(C) No. 3503/2019 for condonation of delay in filing the cross objection petition stands dismissed as the cross objection itself being infructous. (46) The second appeal is disposed of. Accordingly on the basis of the answers to the substantial questions of law the suit filed by the plaintiff appellant is maintainable but the plaintiff appellant failed to prove his title over the suit land for which the plaintiff appellant is not entitled for the reliefs. The suit is dismissed. The parties shall bear their own costs. Prepare a decree accordingly . Send back the LCR.

JUDGE

Comparing Assistant