Punjab-Haryana High Court
Smt. Harjit Grewal And Others vs Dr. Vinod Kumar Batra And Others on 16 April, 2009
R.S.A. No. 168 of 1992 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 168 of 1992 (O&M)
Date of decision: 16.04.2009
Smt. Harjit Grewal and others
....appellants
versus
Dr. Vinod Kumar Batra and others
....respondents
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: - Mr. M.L. Sarin, Sr. Advocate,
with Ms. Seema Jagpal, Advocate,
for appellant No. 1.
Mr. Puneet Jindal, Advocate,
for respondent No. 1.
Mr. Arun Palli, Sr. Advocate,
with Mr. Divanshu Jain, Advocate,
for appellants No. 2 and 3.
***
VINOD K. SHARMA, J.
This regular second appeal is directed against the judgments and decree passed by the learned Courts below vide which the suit filed by the plaintiff/respondents for possession by way of specific performance of agreement dated 13.4.1978 of plot measuring 5 kanals 8 marlas, as detailed in the plaint, has been ordered to be decreed.
The plaintiff/respondents brought a suit on the pleadings that R.S.A. No. 168 of 1992 (O&M) -2- the defendant/appellants entered into an agreement to sell their plot detailed in the head note of the plaint on 13.4.1978. The price of the plot was fixed at Rs.3,000/- per marla, and amount of Rs.12,000/- was paid as earnest money. The balance of Rs.3,11, 900/- was to be received by the defendants from the plaintiffs at the time of registration of the sale deed. The sale deed was agreed to be executed in favour of the plaintiffs in equal shares. The defendants agreed to apply for permission of the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 and the sale deed was to be registered within one month from the intimation of permission by the defendants, which was to be sent to the plaintiffs. It was also stipulated in the agreement to sell that if the plaintiffs failed to get the sale deed registered after the permission was obtained, the amount advanced would stand forfeited, and in case the defendants failed to perform their part of agreement, the plaintiffs would be entitled to refund earnest money and another amount of Rs.12,100/- by way of damages. The expenses for purchase of stamp papers for getting the sale deed executed was to be incurred by the plaintiffs, whereas registration charges were to be borne by the defendants.
The defendant/appellants did not apply for taking permission from the competent authority in spite of best efforts made by the plaintiff/respondents in this connection. Registered notice was also served on the defendants, but to no effect. It was also pleaded by the plaintiff/respondents that defendant/appellants were approached 15 days prior to the filing of the present suit for getting the sale deed executed, but they refused to do so, as they wanted to enhance the price from the plaintiffs to which they did not agree. The plaintiffs pleaded that they R.S.A. No. 168 of 1992 (O&M) -3- were always and still ready and willing to perform their part of contract and, thus, relief of specific performance or in the alternative for refund of amount advanced with damages was prayed for.
The suit was contested wherein preliminary objection was raised that the property in dispute is part of tenancy under Dr. Harbhajan Singh Grewal prior to agreement in dispute. Dr. Harbhajan Singh Grewal was said to be running a hospital in the name and style of Raja Hospital, and had constructed latrine etc. in the property in dispute. There were number of rooms which were used by hospital employees and patients. The answering defendants claimed not to be in possession of the property in dispute. Dr. H.S. Grewal was said to be necessary party to the suit. The plan and boundaries filed by the plaintiffs were said to be wrong. The agreement was said to be vague, ambiguous and unenforceable. It was also pleaded that the scribe of the agreement was relation of the plaintiffs and in collusion with the plaintiffs, deed writer did not mention the value of construction made in the property in dispute in the agreement in question. It was claimed that this fact was deliberately kept concealed. The agreement was not read over by the answering defendants and, thus, it was claimed that the fraud was practised upon them, who were made to sign the agreement without knowing the contents therein. The value of super-structure was claimed to be more than one lac. It was also claimed that the sale price alleged in the agreement did not mention the true picture. The plaintiffs had also agreed to purchase the super-structure at Rs. 1 lac and omission in this regard was deliberately made. All expenses for execution of sale deed were to be borne by the plaintiffs, but surprisingly the scribe has also to R.S.A. No. 168 of 1992 (O&M) -4- the contrary wrongly referred to it otherwise to the detriment of the defendants. Expenses for purchase of stamp papers as well as registration etc. were to be borne by the plaintiffs which is the usual custom in such cases. The plaintiffs have played a fraud and got incorporated that the stamp expenses were to be borne by the defendants. It was also claimed that the answering defendants never agreed to apply for sanction to the competent authority in the instant case. The case set up was that under the Land Ceiling Act the said sanction was not required at all, and the clause was got scribed without the knowledge of answering defendants. The case set up was that the clause was got incorporated by the plaintiffs to gain time for making arrangement for payment to be made. It was the case of the defendant/appellants that the plaintiffs were not financially sound to make payment at the time of agreement so executed. The sale deed was to be completed within one month of the agreement, but in collusion with the scribe, the plaintiffs got the above condition manipulated. Plea of estoppel was raised against the plaintiffs. It was also claimed that the agreement was not otherwise enforceable after the period of two years and six months since sale deed was to be completed within one month It was claimed that the copy of agreement was never given to defendants. The defendants also claimed that their request to provide them copy for enabling them to do the needful was not complied with. The suit was said to be not maintainable due to fraud, uncertainity and mis-representation. The plea was also raised that the plaint was not in accordance with the provisions of law and, therefore, deserved to be rejected. It was pleaded that in reply to notice dated 12.6.1991, from the competent authority under the Urban R.S.A. No. 168 of 1992 (O&M) -5- Land (Ceiling and Regulation) Act, 1976, return was filed and an application was also moved for exemption and for development of Raja Hospital, which was being run for the last 30 years. The exemption was granted by the Secretary to Government Punjab, and the defendants as such cannot by way of sale, gift or otherwise transfer the property in dispute. The order was said to be dated 21.2.1984.
On merits, it was admitted that the defendants agreed to sell building to the plaintiffs, but the plan attached with the plaint was not admitted to be correct. The terms and conditions of the agreement, as given in the plaint, were not admitted in their entirety. It was asserted that Rs.1 lac was to be paid for super-structure existing at the spot. There was no necessity to obtain permission. The answering defendants showed their ignorance to the conditions of the agreement as they were said to have not been read by them. The objections as taken in preliminary objections were taken in reply also. It was, thus, prayed that the suit be dismissed.
In replication, averments made in the plaint were re-asserted and those made in the written statement were denied.
On the pleadings of the parties, the learned trial Court was pleased to frame the following issues: -
"1. Whether the agreement dated 13.4.78 was result of fraud as alleged? OPD.
2. Whether the plaintiffs have been ready and willing to perform their part of the agreement? OPP
3. Whether the plaintiffs are estopped by their act and conduct to enforce the agreement? OPD
4. Whether Dr. H.S. Grewal is a necessary party? If so, to what effect? OPD.R.S.A. No. 168 of 1992 (O&M) -6-
5. Whether the agreement in question is not enforceable as alleged? OPD
6. Whether the site plan is not correct? OPD
7. Whether the suit is not maintainable? OPD
8. Whether plaint has not been drafted in accordance with the provisions of law? OPD
9. To what alternative relief the plaintiff is entitled?
OPP
10. Whether the disputed property is part of a tenancy under Dr. H.S. Grewal prior to the agreement in dispute? If so, to what effect? OPD.
On appreciation of evidence, the learned trial Court was pleased to hold that agreement dated 13.4.1978 was executed voluntarily and not in result of fraud or mis-representation, as alleged by the defendants.
Issue No. 1 was decided in favour of the plaintiffs and against the defendants.
The learned trial Court on issue No. 2 was pleased to hold that the very fact that the plaintiffs served a notice upon defendants calling upon them to execute the sale deed goes to show their readiness and willingness to perform their part of contract.
The learned trial Court also on the basis of evidence led, decided issue No. 2 in favour of the plaintiffs, and held that the plaintiffs have been always and still ready and willing to perform their part of contract. The learned trial Court also decided issue No. 3 in favour of the plaintiffs and held that the plaintifs were not estopped by their act and conduct to enforce the agreement.
Issue No. 4 was also decided against the defendants and it was R.S.A. No. 168 of 1992 (O&M) -7- held that Dr. H.S. Grewal was not necessary party being a doctor.
Though the learned trial Court took note of the fact that in the suit filed by Dr. H.S. Grewal, the plaintiff/respondent had taken a stand that he would not be dispossessed except with due process of law. He was held to be not a necessary party. Even otherwise, in a suit for specific performance, the tenant cannot be said to be a necessary party.
Issue No. 5 was also decided in favour of the plaintiffs and it was held that the agreement was enforceable as the stipulation was not result of fraud nor the same was vague.
The learned trial Court held that perusal of the agreement showed that there was no ambiguity about the terms contained therein.
The learned trial Court was also pleased to hold that the site plan attached with the plaint was correct and as per dimensions given in the suit, thus, issue No. 6 was decided against the defendants and in favour of the plaintiffs.
On issue No. 7 again, the learned trial Court was pleased to hold that the agreement was enforceable and the plaintiffs were ready and willing to perform their part of contract. The learned trial Court, thus, held that the suit filed was maintainable.
Issue No. 8 was not seriously pressed and, thus, decided against the defendants.
On issue No. 9, the learned trial Court held that alternative relief of money was not adequate relief in case of sale of immovable property in view of settled law. Thus, this issue was decided against the defendants and in favour of the plaintiffs.
On issue No. 10, Dr. H.S. Grewal was held to be tenant over R.S.A. No. 168 of 1992 (O&M) -8- the property in dispute. Plea of the appellant/defendants that agreement was not enforceable in view of order Ex.DW5/1 was not accepted. The learned trial Court noticed that Harjit Grewal during cross-examination admitted that the construction had been made by them on their exempted land, which falls in bastian. She also stated that the land in dispute was not part of excess land. The defendants owned less area than the area which was beyond Ceiling limit in case of property situated at Jalandhar.
The learned trial Court further observed that the period for exemption was valid and was over. The learned Court thus, decided issue No. 11 in favour of the plaintiffs and against the defendants.
The suit for specific performance was decreed by learned trial Court.
The defendants preferred an appeal against the judgment and decree passed by the learned trial Court.
It may be mentioned here that after the suit was decreed, the defendant/appellants amended their written statement and the case was remanded back.
The suit was decreed for the second time on 6.12.1986.
The written statement was again amended, and thereafter during the pendency of the appeal, the written statement was amended for the fourth time, under the order of this Court, wherein new plea was taken that even if the parties have entered into an agreement for sale, it was void ab initio, as the provisions of Section 5(3) and 42 of the Urban Land (Ceiling and Regulation) Act, 1976 were violated.
While allowing the amendment of written statement, this Court was pleased to frame the following issue: -R.S.A. No. 168 of 1992 (O&M) -9-
"Whether the agreement to sell is void and not enforceable in view of the provisions of Section 5(3) and 42 of the Urban Land (Ceiling and Regulation) Act, 1976?"
The parties were, however, not allowed to lead any additional evidence, on the issue framed.
In appeal, the contention raised by the appellant/defendants was that as per terms of the agreement Ex. P-1 permission of the competent authority was to be obtained, and thereafter within one month of notice, sale deed was to be got executed. Since no such permission was sought for, therefore, no cause of action could be presumed to have arisen for filing the suit. It was also contended that the contract being contingent contract was not enforceable in law without the contingency having been arisen.
The learned lower appellate Court in view of the law laid down by the Hon'ble Supreme Court in Maha Rao Saheb Shri Bhim Singhji and others Vs. Union of India and others, 1981 Supreme Court 234 was pleased to hold that no permission of competent authority was required even if the land in occupation of defendant/appellants exceeded, the permissible area, as sub-section 1 of Section 27 of the Urban Land (Ceiling and Regulation) Act, 1976 was held to be invalid, in so far as it imposed a restriction on transfer of any urban or urbanisable land, with a building or portion only of building, which was within the Ceiling area.
The learned lower appellate Court held that it was the case set up by the defendant/appellants themselves that there was construction worth Rs.1 lac standing on the plot in dispute, and that land agreed to be R.S.A. No. 168 of 1992 (O&M) -10- sold was vacant piece, which was part of Raja Hospital building, and comprised of several rooms in occupation of Dr. H.S. Grewal as tenant.
The learned lower appellate Court held that in view of the judgment of the Hon'ble Supreme Court in Maha Rao Saheb Shri Bhim Singhji and others Vs. Union of India and others (supra), no permission was required for execution of sale deed.
The learned lower appellate Court also held that it was in pursuance to the complaint made by somebody, that an application seeking exemption, though by asserting that applicants were not big landladies was moved.
DW-5 examined by defendant/appellants also deposed that according to verifications made by the department, the declaration filed by the appellants was correct that they were not big landladies.
It was also admitted that defendant/appellants were not having any surplus area, leaving no doubt that provisions of Ceiling Act were not applicable.
The defendant/appellants placed on record Ex. C/1 i.e. certified copy of order passed by the competent authority according to which Smt. Pritam Kaur was having no surplus area.
The learned lower appellate Court took note of Ex. DW-5/1 i.e. copy of order passed by the Secretary to Government of Punjab, Local Government, showing that exemption though on the basis of mis- calculations was granted to Smt. Harjit Kaur, also qua land on which the construction had been raised.
The learned lower appellate Court was also pleased to hold R.S.A. No. 168 of 1992 (O&M) -11- that no question arose to obtain permission of the competent authority before effecting the sale in accordance with agreement Ex. P-1.
The learned lower appellate Court held that no contingency was required to happen before executing the sale deed, thus, the specific performance of the contract was possible.
The learned lower appellate Court also noticed that it was the stand of the defendant/appellants from the very beginning that no permission was required. The plea of the defendant/appellants that plaintiff/respondents failed to prove their willingness to perform their part of contract, was also rejected by recording a positive finding that no evidence was brought suggesting that the plaintiff/respondents evaded the execution of sale deed.
The learned lower appellate Court further held that the burden to plead and prove that the plaintiffs were always and still willing and ready to perform their part of contract stood discharged.
The learned lower appellate Court held that notice was served calling upon the defendant/appellants to execute the sale deed, but the defendants did not take any step in this regard. The learned lower appellate Court held that the defendants due to increase of price were evading to execute the sale deed.
In view of the findings referred to above, the appeal was dismissed.
The learned senior counsel appearing on behalf of the appellants raised the following substantial questions of law for consideration in this appeal: -
"1. Whether the learned Courts below erred in law in R.S.A. No. 168 of 1992 (O&M) -12- decreeing the suit of the plaintiffs without giving a finding on the additional issue framed by the order of the Hon'ble High Court dated 9.5.1991?
2. Whether the judgment of the learned lower appellate Court is illegal as no issue-wise findings were given?
3. Whether the learned Courts below could have decreed the suit for specific performance in view of the exemption order dated 13.2.1984, Ex. DW5/1?
4. Whether the learned Courts below erred in law in decreeing the plaintiff's suit for specific performance in view of Section 5(3) and Section 42 of the Urban Land (C&R) Act 1976?
5. Whether the suit was premature and the learned Courts below committed an error in law in decreeing the same?
6. Whether the learned lower appellate Court committed an illegality by ignoring the surplus area order dated 27.2.1989 passed by the competent authority which was placed on record on 13.3.1990?
7. Whether the learned Courts below erred in law in decreeing the suit for specific performance when it is patent on the record that this would result in great hardship to the defendant - appellant herein?
8. Whether the learned Courts below should have decreed the suit for specific performance when no evidence as to the readiness and willingness of the plaintiff was placed on the record?
9. Whether the decrees and judgments of the learned Courts below are perverse?
Mr. M.L. Sarin, learned senior counsel appearing on behalf of appellant No. 1 vehemently contended that the learned lower appellate R.S.A. No. 168 of 1992 (O&M) -13- Court committed an error in upholding the judgment of the learned trial Court without giving any finding on the additional issue framed by order of this Court dated 9.5.1991.
In support of this contention, the learned senior counsel placed reliance on the judgment of the Hon'ble Supreme Court in Mrs. Vijaya Shrivastava v. M/s Mirahul Enterprises and others, JT 2006(6) SC 526, wherein the Hon'ble Supreme Court has been pleased to lay down that the learned lower appellate Court should give finding on all the issues framed. Reference was made to paras No. 5, 6 and 10 of the said judgment, which read as under: -
"5. In our view, the division bench ought to have answered all the issues which were framed by the trial court. All the issues are inter-connected. For example, in the suit, the plaintiff-appellant has alleged that there were two separate transactions one for sale of the flat and another for specific performance of the agreement under which interest-free loan was extended to the developers. Whether the loan amount was adjustable towards the price payable to the developers was an important issue which has a linkage with the agreement for sale of flats. We do not wish to express any opinion on any of the said issues.
6. In the circumstances, we are of the view that the division bench ought to have given findings on all the issues referred to hereinabove.
10. In the present case, it may also be noted that the plaintiffs have alleged that the sale deed dated 9.6.1987 is vitiated by collusion and, therefore, not binding on the plaintiffs. As stated above, this issue is decided against defendant No. 6 by the single judge. Decree has been passed against defendant No. 6. He has preferred RFA to R.S.A. No. 168 of 1992 (O&M) -14- the division bench, in which he has categorically stated that he was a resident of Madras; that, he had given power of attorney to the managing partner of M/s Mirahul Enterprises; and that, he was a bona fide purchaser for consideration and without notice. This issue is very relevant because even if in a given case, the contract is found to be concluded, still the court can refuse specific performance if the subsequent purchaser is found to be a bona fide purchaser for value without notice. On this point, we do not wish to express any opinion. We have only given reasons in respect of our conclusion that the division bench of the High Court should have decided all the above quoted issues which the single judge has decided while passing the decree in favour of the plaintiffs. In the circumstances, the following order is passed.
The Registry is directed to place the above civil appeals for further hearing on 4.12.2006. In the meantime, we are directing the division bench of Delhi High Court to return to us the findings on all the above-quoted issues in RFA (OS) Nos. 29, 30, 41 and 42 of 1996."
Reliance was also placed on the judgment of the Hon'ble Supreme Court in Madhukar and others Vs. Sangram and others, (2001) 4 SCC 756, where again it has been reiterated that learned lower appellate court should opine on all the issues. Paras No. 5 and 6 of the said judgment read as under: -
"5. We have carefully perused the judgment and decree of the High Court in the first appeal. We find that substantial documentary evidence had been placed before the trial court including certified copies of certain public records besides copy of the judgment and decree of the earlier suit (OS Nos. 93 of 1971). Oral evidence had also R.S.A. No. 168 of 1992 (O&M) -15- been led by the parties before the trial court which was noticed and appreciated by the trial court. However, the impugned judgment in the first appeal is singularly silent of any discussion either of documentary evidence or oral evidence. Not only that, we find that though the trial court had dismissed the suit on the ground of limitation as also on the ground that the decision in the earlier suit (OS No. 93 of 1971) operated as res judicata against Defendant 1 only, the High Court has not even considered, much less discussed the correctness of either of the two grounds on which the trial court had dismissed the suit. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. It has failed to discharge the obligation placed on a first appellate court. The judgment under appeal is so cryptic that none of the relevant aspects have even been noticed. The appeal has been decided in a very unsatisfactory manner. First appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.
6. In Santosh Hazari v. Purushottam Tiwari this Court opined: (SCC pp. 188-89, para 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 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 R.S.A. No. 168 of 1992 (O&M) -16- 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 on it."
The contention of the learned senior counsel for appellant No. 1, therefore, was that the first substantial question of law deserves to be answered in favour of the appellant.
The contention of the learned senior counsel that the judgment and decree passed by the learned lower appellate Court deserves to be set aside on account of findings not having been recorded on additional issue was opposed by Mr. Puneet Jindal, learned counsel appearing on behalf of the respondent on the plea that the reading of the judgment of the learned lower appellate Court would show that the issue, in fact, was substantially decided by learned lower appellate Court by placing reliance on the judgment of the Hon'ble Supreme Court in Maha Rao Saheb Shri Bhim Singhji and others Vs. Union of India and others (supra), Section 27 of the Urban Land (Ceiling and Regulation) Act, 1976 was declared invalid, and the issue raised, therefore, did not survive.
It was also the contention of the learned counsel for the respondent that in any case, the judgment and decree passed by the learned lower appellate Court cannot be set aside, and at best, the report on the issue can be called, and the whole case cannot be remanded back to the learned lower appellate Court for decision afresh. R.S.A. No. 168 of 1992 (O&M) -17-
In support of this contention, the learned counsel for the respondent placed reliance on the judgment of the Hon'ble Supreme Court in Pasupuleti Venkateswarlu Vs. The Motor and General Traders, 1975(3) SCR 958, wherein the Hon'ble Supreme Court was pleased to lay down as under: -
"2. The appellant, a landlord of a large building, had leased out in separate portions his building to several tenants. One of such tenants is the respondent. The former resolved to start a business in automobile spares and claimed eviction of the respondent by Rent Controller proceedings, under section 10(3)(iii)(a) and (b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The petition was resisted and the Rent Controller dismissed the petition. The appeal by the landlord failed but, in revision, the High Court chose to remand the case to the appellate authority. The litigation lengthened further because the latter, after hearing parties, remitted the whole case to the trial Court for fresh disposal in accordance with some directions and, after allowing parties to lead evidence. Instead of finishing the case at the trial court level, the landlord repeated a revision to the High Court on the perhaps technically correct stand that a wholesale remittal, as against calling for a finding on a specific point, was illegal. While hearing protracted arguments it came to the ken of the court that certain material events of fatal import to the maintainability of the eviction proceedings had come to pass and so it decided to mould the relief in the light of these admitted happenings. The learned judge observed:
If the fact of the landlord having come into possession during the pendency of the proceedings of Shop No. 2 is to be taken into account, as indeed it must be, then clearly the petition is no longer R.S.A. No. 168 of 1992 (O&M) -18- maintainable under Section 10(3)(iii) of the Act, as the requisite condition for the invoking of that provision has ceased to exist vis., that the landlord was not occupying a non-residential buuilding in the town. 'Building', of course means a portion of a building. As the prerequisite for the entitlement of the petitioner to institute and continue a petition has ceased to exist, it must follow that ABA No. 5/1967 is no longer maintainable and must be dismissed. The inevitable sequel was the dismissal, not only of the civil revision, but also of the eviction petition. Thus, after a marathon forensic battle lasting over six years, the landlord lost even the flickering hope of success before the trial Court as a result of supererogatory revision to the High Court. It is against this adverse decision he has, by special leave, come to this Court."
Reliance was also placed on the judgment of the Hon'ble Supreme Court in Ashwinkumar K. Patel Vs. Upendra J. Patel, 1993(3) SCC 161, wherein, the Hon'ble Supreme Court has been pleased to lay down as under: -
"8. In our view, the High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower Court merely because it considered that the reasoning of the lower court in some respects wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima R.S.A. No. 168 of 1992 (O&M) -19- facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary.
9. We have also considered whether, on that account, we should send back the matter to the High Court for consideration of the appeal. We are of the view that, on the facts of this case, this Court can decide whether the temporary injunction granted by the trial Court should be confirmed or not. We are, therefore, not remitting the matter of the High Court because a further remand would lead to delay and perhaps one more special leave petition to this Court."
The learned counsel for the respondent by placing reliance on the judgment of the Hon'ble Supreme Court in P. Purushottam Reddy Vs. M/s Pratap Steels Ltd., 2002(2) RCR (Civil) 70 contended that in view of pleadings and evidence on record, this Court should take up the matter itself and proceed to record its own finding instead of remanding the case for fresh decision on the left out issue.
The Hon'ble Supreme Court in P. Purushottam Reddy Vs. M/s Pratap Steels Ltd. (supra) has been pleased to lay down as under: -
"7. The next question to be examined is the legality and propriety of the order of remand made by the High Court, prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provision contemplating remanded by a court of appeal in Order 41 CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other R.S.A. No. 168 of 1992 (O&M) -20- issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of sub- rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposes of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satiisfied, the appellate court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot R.S.A. No. 168 of 1992 (O&M) -21- have recourse to its inherent powers to make a remand because, as held in Mahendra v. Sushila, AIR 1965 SC 365 at p. 399, it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand de hors the Rules 23 and 23A. To wit, the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner, required by Order 20 Rule 3 or Order 41 Rule 31 of the CPC and hence it is not judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.
8. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A of CPC is concerned, the High Court has itself found that there R.S.A. No. 168 of 1992 (O&M) -22- was no specific plea taken in the written statement. The question of framing an issue did not, therefore, arise. However, the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to caluse (c) of Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were and the question of improving upon the pleadings does not arise inasmuch as neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial Court. Nevertheless, the parties and the trial court were very much alive to the issue whether Section 16
(c) of the Specific Relief Act was complied with or not and the contentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial court was sustainable or not - in law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material inasmuch as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration and decision."
The contention of the learned counsel for the respondent that the additional issues stand substantially decided in view of the observations made by the appellate Court by placing reliance on the judgment of the Hon'ble Supreme Court in Maha Rao Saheb Shri Bhim Singhji and others Vs. Union of India and other (supra), cannot be accepted.
R.S.A. No. 168 of 1992 (O&M)-23-
The Hon'ble Supreme Court in Azhar Sultana Vs. B. Rajamani and others, 2009(2) Supreme 262 has been pleased to lay down that despite the fact that Section 27 of the Urban Land (Ceiling and Regulation) Act, 1976 was declared ultra vires, the said provisions were very much on the statue book at the relevant time and, therefore, the deed of sale could not have been executed without obtaining prior permission. Paras 8 and 14 of the said judgment read as under: -
"8. It was, however, held that readiness and willingness on the part of the plaintiff to perform her part of contract having been conveyed in a telegraphic notice (Exhibit A3); it was obligatory on the part of the plaintiff - appellant to examine herself in the suit and as she did not examine herself, the legal requirement envisaged under Section 16(c) of the Act cannot be said to have been complied with. It was furthermore held that as no evidence was adduced to establish that the amount of consideration, which was required to be paid to the defenant was available with the plaintiff, she was not ready and willing to perform her part of contract. It was observed that for the aforementioned purpose, contents of the legal notice dated 16/20.11.1981 (Ex.A3) would not be decisive. Noticing that despite the fact that Section 27 of 1976 Act was declared ultra vires by this Court in Maharao Saheb Shri Bhim Singhji; Anantalakshmi Pathabi Ramasharma Yeturi and others.; Jodhan Real Estate Development Co. (P) Ltd. And another; Rajendra Garg Etc.; Shamshul Islam etc. v. Union of India and another (AIR 1981 SC
234) it was opined that as the said provision was very much on statue book at the relevant time, the deed of sale could not have been executed without obtaining such permission and even on that score, the plaintiff appellant cannot derive any advantage to establish that she had been ready and R.S.A. No. 168 of 1992 (O&M) -24- willing to perform her part of the contract.
14. Indisputably, Khanna filed an application for grant of approval for sale of the premises in question. It was necessary as only in 1981, the said provision was declared ultra vires. In view of the fact that approval was required to be obntained from the competent authority, the plaintiff could not have proceeded on the assumption that the suit could be filed within a period of three years from the date of refusal on the part of the original defendant to execute the said deed of sale in terms of agreement." On consideration, this Court feels that the learned lower appellate Court was bound to record a finding on additional issue.
However, it is made clear that no opinion is being expressed as to whether the judgment in the case of Azhar Sultana Vs. B. Rajamani and others (supra) would apply to the facts of the present case or not in view of the specific stand taken by the defendant/appellants in their pleadings, that no permission was required from the authorities under the Urban Land (Ceiling and Regulation) Act, 1976, as the land was not surplus, and in any case was constructed one, thus exempt. The learned lower appellate Court was required to consider whether the permission taken by the defendant/appellants from the authorities under the Urban Land (Ceiling and Regulation) Act, 1976, in view of the pleading, could be used to deny the right of specific performance to the plaintiff/respondents.
The first substantial question of law is answered in favour of the appellant/defendants.
In support of the contention that the Court was bound to decide the additional issue framed, reference was made to the judgments R.S.A. No. 168 of 1992 (O&M) -25- of the Hon'ble Supreme Court in M/s Spencer & Co. Ltd. and another Vs. M/s Vishwadarshan Distributors Pvt. Ltd. and others, 1995(1) SLR 282 and M/s Bayer India Ltd. and others Vs. State of Maharashtra and others, JT 1993(4) SC 141, wherein the observations have been made by the Hon'ble Supreme Court that the directions issued by the Supreme Court should have been complied with by the High Court. These observations are not applicable to present case.
In support of the second substantial question of law, the learned senior counsel for the appellants contended that the judgment and decree passed by the learned lower appellate Court cannot be sustained, as the learned lower appellate Court has not recorded issue- wise finding. There is also force in this contention of the learned senior counsel for the appellants. The learned lower appellate Court being Court of appeal was bound to answer all the issues framed, and in case, any of the issues was not pressed in appeal, the same should be recorded. The judgment and decree passed by the learned lower appellate Court, therefore, cannot be sustained even on the ground that the learned lower appellate Court has failed to give issue-wise finding.
Though in normal circumstances, this Court could have called for report from the learned lower appellate Court on additional issues, but keeping in view the fact that the learned lower appellate Court has not recorded any issue-wise finding on other issues also, the judgment and decree passed by the learned lower appellate Court cannot be sustained. The second substantial question of law is also answered in favour of the appellant/defendants.
It may be noticed that both the counsel had also addressed R.S.A. No. 168 of 1992 (O&M) -26- arguments on other substantial questions of law, referred to above, but the same are not answered in view of the finding on the first two substantial questions of law holding that the learned lower appellate Court committed an error in not recording a finding on the additional issue, and also in not recording issue-wise finding while deciding the appeal.
Consequently, without expressing any opinion on the other substantial questions of law, this appeal is allowed by holding the first two substantial questions of law in favour of appellant/defendants.
The appeal is accordingly accepted, the judgment and decree passed by the learned lower appellate Court is ordered to be set aside. The case is remanded back to the learned lower appellate Court to decide the appeal afresh by recording finding on all the issues, including the additional issue framed by this Court.
However, keeping in view the fact that this appeal remained pending in this Court since 1992, the learned lower appellate Court should dispose of the appeal preferably within six months.
The parties through their counsel are directed to appear before the learned lower appellate Court on 20.5.2009. The record of the learned Courts below be also sent back immediately.
(Vinod K. Sharma) Judge April 16, 2009 R.S.