Qazi Arshid Hussain And Anr vs Farooq Ahmad Wani And Anr
2021 Latest Caselaw 344 j&K/2

                   HIGH COURT OF JAMMU AND KASHMIR
                            AT SRINAGAR

                                                   CFA No. 202/2007

                                                   Reserved on:- 01.03.2021.
                                                   Pronounced on:- 24.03.2021.

Qazi Arshid Hussain and Anr.                                      ..... Appellant(s)

                                Through :- Mr. G.Q. Bhat, Advocate.
                          V/s

Farooq Ahmad Wani and Anr.                                      .....Respondent(s)

                                Through :- Mr. Jahangir Iqbal Ganai, Sr. Adv.
                                           with Ms. Humaira Shafi, Adv.


Coram:            HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                  JUDGMENT

1. The instant appeal is directed against the judgment and decree

dated 25.07.2005 passed by the learned Principal District Judge, Anantnag,

whereby the suit of the respondents (hereinafter referred to as the „plaintiffs')

has been decreed against the appellants (hereinafter referred to as the

„defendants) and the plaintiffs have been held entitled to recover an amount of

Rs. 7.00 lacs along with interest @ 5% per annum and costs of the suit from

the defendants.

2. Briefly stated the facts leading to filing of the instant appeal are

that the plaintiffs filed a suit for recovery of an amount of Rs. 7.00 lacs against

the defendants with a relief of decree for settlement of accounts and perpetual

injunction. The case of the plaintiffs before the Trial Court was that they along

with one-Qazi Abdul Salam were running partnership business of extracting,

lifting and forwarding of Mini Forest Produce (MFP). The partnership was in

equal shares and the business was being run by the partners under the name and

style of M/s Friends Dhoop and Aggarbatti Works Qazigund.

3. It was averred that after running the business for some time,

certain disputes arose between the partners, which resulted in filing of a suit by

Dr. Qazi Abdul Salam. During the pendency of the aforesaid suit, the said

Dr. Qazi Abdul Salam is stated to have died on 11.04.2003. The deceased

partner is survived by the defendants and other legal heirs. It appears that after

the death of the above named partner, defendants in terms of the covenants of

the Partnership Deed opted to join the partnership business. The dispute

between the partners, i.e., the defendants and plaintiffs is stated to have been

resolved by execution of a Relinquishment Deed dated 30.06.2003, registered

on 01.07.2003, whereby the plaintiffs relinquished their rights in favour of the

defendants.

4. It is alleged in the plaint that at the time of execution of the

Relinquishment Deed, the accounts between the parties could not be settled, as

such, another agreement was executed by the partners, which was registered

with Sub-Registrar, Qazigund on 01.07.2003, whereunder it was agreed by the

parties that the accounts would be settled by 15.08.2003 and it was further

agreed that the defendants would pay a sum of Rs. 7.00 lacs to the plaintiffs,

which amount was due to be recovered by the plaintiffs from M/S Om Parkash

of Amritsar.

5. It is further averred that despite execution of the Deed of

Relinquishment and the aforestated agreement, the defendants did not settle the

accounts and they did not pay an amount of Rs. 7.00 lacs to the plaintiffs

before the stipulated date, i.e., 15.08.20003. It is, in these circumstances, that

the plaintiffs approached the learned Trial Court by way of a suit for recovery

of an amount of Rs. 7.00 lacs from the defendants and for relief of a decree of

settlement of accounts with a perpetual injunction, restraining the

appellants/defendants from lifting or forwarding any Mini Forest Produce

(MFP) till accounts between the parties are settled.

6. A perusal of the Trial Court record reveals that the defendants had

put in their appearance before the Trial Court and the parties sought time to

enter into negotiations with each other. After appearing for some dates, the

defendants stopped appearing in the case and the learned Trial Court vide its

order dated 24.05.2004 proceeded exparte against the defendants and directed

the plaintiffs to lead exparte evidence. It is pertinent to mention here that from

the Trial Court record, it comes to the fore that the defendants had filed

objections to the application for grant of interim injunction, but no written

statement was filed by them in the main suit. In their objections, the

defendants primarily took a stand that with the execution of Relinquishment

Deed by the plaintiffs in favour of the defendants, the accounts between the

partners stood settled amicably and peacefully and as such, no cause of action

was left with the plaintiffs to file the suit.

7. The plaintiffs in order to prove their case besides examining

plaintiff No. 1, have examined five more witnesses, namely, PW-Haji Ghul

Mohammad Rather, PW-Ghulam Qadir Malik, PW-Mohd. Yaqoob Wani, PW-

Mohd. Ramzan Dar and PW- Mushtaq Ahmed.

8. The learned Trial Court has, after quoting the evidence led by the

plaintiffs, come to the conclusion that the plaintiffs have succeeded in

establishing their claim to the extent of recovery of Rs. 7.00 lacs against the

defendants, but have failed to substantiate their claim regarding settlement of

accounts and grant of decree for perpetual injunction. Accordingly, decree for

recovery of an amount of Rs. 7.00 lacs with interest @ 5% per annum along

with costs, has been passed in favour of plaintiffs and against the defendants,

which is under challenge before this Court.

9. The defendants have challenged the impugned judgment and

decree on the grounds that the documents relied upon by the learned Trial

Court were not placed in original on record of the said Court and the learned

Trial Court has erred in relying upon photo copies of the documents like

Relinquishment Deed dated 30.06.2003 and Agreement dated 27.06.2003,

which is contrary to the provisions contained in the Evidence Act; that the

learned Trial Court has simply decreed the suit in favour of the plaintiffs

without bothering to see as to whether the plaintiffs have actually been

successful in establishing their claims against the defendants by observing that

case of plaintiffs has remained unrebutted and as such, they are entitled to the

relief; that there is non-joinder of the necessary parties, inasmuch as, all the

legal heirs of deceased-Dr. Qazi Abdul Salam-the father of the defendants,

were not made parties to the suit; that the covenant regarding payment of

money in agreement dated 30.06.2003, which has been relied upon by the

learned Trial Court while passing the impugned judgment and decree, is

conditional upon the settlement of accounts and as such, the money could not

have been recovered from the defendants on the basis of the said covenant

without settlement of the accounts; that there are contradictions between the

evidence led by the plaintiffs and their pleadings and that the impugned

judgment and decree is a result of lack of application of mind.

10. I have heard learned counsel for the parties and perused the

impugned judgment/decree, the grounds of appeal and the record of the learned

Trial Court.

11. A perusal of the plaint filed by the plaintiffs before the Trial Court

reveals that the claim of the plaintiffs against the defendants is based upon the

covenants of the agreement dated 27.06.2003, registered with Sub-Registrar,

Qazigund on 01.07.2003. According to the plaintiffs, there is a covenant in the

said agreement, which entitles the plaintiffs to recover an amount of Rs. 7.00

lacs from the defendants, which amount the defendants had agreed to pay to the

plaintiffs.

12. It is contended by the defendants that the documents relied upon

by the learned Trial Court while passing the impugned judgment/decree, were

not placed in original before the Trial Court and as such, the same could not

have been relied upon. However, the Trial Court record shows that the original

agreement dated 27.06.2003 is on record of the file and in fact not only

the plaintiff-Farooq Ahmad Wani, but even marginal witness to the said

document, namely, PW- Haji Ghul Mohammad Rather and the scribe

PW-Ghulam Qadir Malik have testified about the execution of the said

document by the parties. Otherwise also, the document in question has been

registered before the Sub-Registrar, Qazigund and there is a presumption of

due execution attached to it. In the absence of any evidence in rebuttal, it has

to be held that the document in question, i.e., EXPWGQ was executed by the

parties.

13. The question, which falls for determination is as to what was

agreed upon by the parties vide the aforesaid document. According to the

plaintiffs, the defendants had agreed to pay an amount of Rs. 7.00 lacs to them,

which was due to the firm from M/S Om Parkash Ramesh Kumar,

Jeth Mandi, Amritsar. The plaintiff-Farooq Ahmad Wani and his witnesses,

particularly, marginal witness to the document (EXPWGQ), namely, Haji

Ghul Mohammad Rather has stated that the defendants had agreed to pay an

amount of Rs. 7.00 lacs by 15.08.2003. PWs-Haji Ghul Mohammad Rather

and Ghulam Qadir Malik have also stated that at the time of execution of the

document EXPWGQ, the Lala from Amritsar, which probably is the person,

who owed an amount of Rs. 7.00 lacs to the partnership firm of the parties, was

also present on the spot. However, the said person is not executant of the

document.

14. Coming to the actual expressions used in the agreement

EXPWGQ, which are relevant for the determination of the issue at hand, the

same convey that M/S Om Parkash of Amritsar owes an amount of

Rs. 7.00 lacs towards the joint account of the first party, i.e., plaintiffs and the

responsibility in this regard has been owned by the second party, i.e.,

defendants and the amount is to be retained by the said party. The agreement

further goes on to provide that the accounts pertaining to business of first party

with late Qazi Abdul Salam would be settled by the parties amicably before the

panchayat and whatever will be decided by the panchayat, the same would be

acceptable to both the parties. It is also provided that these accounts will be

settled by 15.08.2003.

15. The aforesaid covenants of the agreement nowhere provide that

the defendants would pay an amount of Rs. 7.00 lacs to the plaintiffs and that

they would recover the same from M/S Om Parkash of Amritsar. It only

provides that responsibility to recover the said amount would be that of the

defendants and the amount would become the property of the defendants.

There was nothing on record before the learned Trial Court to show that the

amount of Rs. 7.00 lacs was actually recovered by the defendants from the M/S

Om Parkash of Amritsar. Although the witnesses have stated that the Lala from

Amritsar was present on spot at the time of execution of the documents, yet the

said Lala not signed the document-EXPWGQ. Therefore, the covenant cannot

be enforced even against M/S Om Parkash.

16. Although the plaintiff-Farooq Ahmad Wani and his witnesses

have stated that the defendants had agreed to pay an amount of Rs. 7.00 lacs to

the plaintiffs in their presence at the time of execution of the aforesaid

document, i.e., EXPWGQ, yet no such term, condition or covenant is

incorporated in the document-EXPWGQ. Section 92 of the Evidence Act

clearly provides that when the terms of any agreement have been reduced into

writing, no evidence of any oral agreement or statement is admissible as

between the parties to any such instrument or their representatives in interest

for the purpose of contradicting, varying, adding to or subtracting from its

terms. Therefore, once it is shown that the written agreement-EXPWGQ did

not provide for payment of Rs. 7.00 lacs by the defendants to the plaintiffs by

15.08.2003, as claimed by the plaintiffs, the same cannot be read into it on the

basis of oral statements of the plaintiffs and their witnesses. The matter

becomes further clear when we have a look at the covenants of the

Relinquishment Deed dated 30.06.2003, which is a document admitted by the

parties. The relevant covenants are reproduced as under:-

i. That the parties on the 1st part shall have no interest or concern with the business of M/s Friends/Dhoop and Agarbati works which henceforth shall be the sole proprietary concern of the parties on the 2nd part of this deed.

ii. That the parties on the 2nd part shall be the sole partners in equal shares of the partnership concern of M/s Friends Dhoop and Agarbati Works.

iii. That all rights and liabilities of the partnership concern of M/s Friends Dhoop and Agarbati Works shall now be equally shared by the parties on the 2nd part of this deed who are at liberty to execute a separate partnership deed in this regard.

iv. That the parties on the 1st part to this deed are running their business of collecting, lifting and forwarding of mini Forest Produce and the said business is being run by them under the name and style of MIs Lucky Dhoop Industries and the parties on the 2nd part shall have no interest or concern with the said firm.

v. That the parties on the 2nd part are now the sole surviving partners of the firm M/s Friends Dhoop and Agarbati Works having entered into the shoes of their deceased father Dr. Qazi Ab. Salam and the parties on the 1st part are having no right to interfere or meddle with the business of M/s Friends Dhoop and Agarbati works and are absolved of all the liabilities.

vi. The the parties on the 1st part have agreed to relinquish their rights as partners. Of the firm M/S Friends Dhoop and Agarbati Works in favour of the parties on the 2nd part. As they have settled all the accounts.

vii. That the parties on the 2nd part are at liberty to collect, lift and forward any mini Forest Produce in the name of the firm M/s Friends Dhoop and Agarbati works that is already allotted to the firm or shall be allotted to the firm in future.

viii. That all the money/payments due to the firm M/S Friends Dhoop and Agarbati works shall be received by the parties on the 2nd part to this deed without any intervention on the part of the parties on the 1st part.

ix. That the suit captioned as Qazi Ab. Salam V/S Farooq Ahrnad Wani and another pending disposal before the Hon'ble Court of District Judge, Anantnag shall be deemed to have been withdrawn.

17. From a perusal of the afore-quoted covenants, it is clear that upon

execution of the Relinquishment Deed, the parties had settled the accounts

between themselves and the plaintiffs had relinquished their rights as partners

of the firm in favour of the defendants. In the Relinquishment Deed, there is

no mention about any outstanding amounts or liabilities, to be paid/discharged

by the defendants towards the plaintiffs. The document is dated 30.06.2003,

whereas the agreement on the basis of which the suit has been filed by the

plaintiffs is dated 27.06.2003. When we read the covenants of the two

document conjointly, it becomes clear that the parties had settled the accounts

qua their business concern and the plaintiffs had relinquished their interests in

the partnership business in favour of the defendants and it is in that context that

in the agreement-EXPWGQ, the responsibility to recover dues of the firm from

M/S Om Parkash was taken upon themselves by the defendants. A harmonious

construction of the covenants of the two documents, i.e., Relinquishment Deed

dated 30.06.2003 and the Agreement-EXPWGQ would lead us to this

conclusion only.

18. In the face of the aforesaid discussion, it becomes clear that the

learned Trial Court while relying upon the oral evidence with regard to terms

of agreement-EXPWGQ, has landed itself into error and arrived at an

erroneous conclusion.

19. Even otherwise, the impugned judgment and decree passed by the

learned Trial Court is cryptic in nature and the same is devoid of any reasons.

This is clear from the perusal of the impugned judgment, particularly, the

portion thereof, which relates to reasoning. The said portion of the impugned

judgment reads as under:-

"Heard and considered the arguments and the record on the file. The statements of the witnesses produced by the plaintiffs in exparte remain unrebutted as the defendants have chosen not to appear and participate in the proceedings. The plaintiffs have succeeded in establishing their claim in exparte to the extent of recovery of rupees seven lacs from the defendants but have failed to substantiate their claim regarding settlement of accounts and the grant of a decree for perpetual injunction.

The result therefore is that the suit of the plaintiffs for recovery of rupees seven lacs with costs from the defendants is decreed in exparte against the defendants only. Decree sheet be prepared and the file after its due completion consigned to records."

20. From the above, it is clear that the suit has been decreed by the

learned Trial Court only because statements of the witnesses produced by the

plaintiffs in exparte have remained un-rebutted and because the defendants

have not chosen to participate in the proceedings.

21. As is evident from the discussion made herein before, the plaint

and the documents attached thereto itself showed that the suit involved serious

disputed questions of fact and it also involved interpretation of the terms of the

covenant of the agreement-EXPWGQ, which formed the basis of the claim of

the plaintiffs. Unfortunately, the learned Trial Court did not consider these

issues and proceeded almost blindly to pass a decree in favour of the plaintiffs

merely because the defendants did not participate in the proceedings. This

approach of the learned Trial Court is not permissible under law. A plaintiff

irrespective of the fact that whether or not the defendants contest the suit,

unless the averments in the plaint are specifically admitted by the defendants,

has to prove each and every vital fact, which entitles plaintiff to a decree by

leading cogent and convincing evidence.

22. "Judgment" as defined under Section 2(9) of the Civil Procedure

Code means the statement given by the Judge of the grounds for a decree or

order. What a judgment should contain is indicated in Order 20 Rule 4(2) of

the CPC, which provides that a judgment shall contain a concise statement of

the case, the points for determination, the decision thereon and reasons for such

decision. Thus, a judgment should be a self contained document, from which it

should appear as to what were the facts of the case and what was the

controversy, which was tried to be settled by the Court and in what manner.

The process of reasoning, by which the Court came to ultimate conclusion and

decreed the suit, should be reflected clearly in the judgment.

23. In the instant case, the learned Trial Court has followed the

aforesaid provisions in breach and has mechanically passed the impugned

judgment and decree simply on the reasoning that the exparte evidence led by

the plaintiffs has remained unrebutted without discussing as to whether the said

exparte evidence has been able to establish the facts pleaded by the plaintiffs

on the touchstone of law.

24. For the foregoing discussion, the impugned judgment and decree

is held to be unsustainable in law and the same is set aside. Accordingly, the

appeal is allowed. The parties are left to bear their own costs. The trial Court

record be sent back.

(SANJAY DHAR) JUDGE Srinagar 24.03.2021 Ram Krishan

Whether the order is speaking: Yes Whether the order is reportable: Yes

This judgment is being pronounced by me in terms of Rule 138(3) of the

J&K High Court Rules, 1999.

(VINOD CHATTERJI KOUL) JUDGE

SRINGAR 24.03.2021

RAM KRISHAN 2021.03.24 15:34 I attest to the accuracy and integrity of this document