Gujarat High Court
Asgarali Kasam Nareja vs Node Hussain Alimamad on 18 September, 2024
NEUTRAL CITATION
C/SA/407/2023 ORDER DATED: 18/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 407 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 407 of 2023
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ASGARALI KASAM NAREJA
Versus
NODE HUSSAIN ALIMAMAD
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Appearance:
MS NAMEERA DOSANI for MR AFTABHUSEN ANSARI(5320) for the
Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 18/09/2024
ORAL ORDER
1. On 13.8.2024, this Court passed following order:-
"Learned Trial Court passed judgment and decree in favour of the plaintiff directing the defendant to deposit Rs.6 lakhs along with interest @ 9% p.a. from the date defendant refused for specific performance of agreement to sale. Order passed by the learned Trial Court is mainly on the principle of unjust enrichment. It is unsuccessfully challenged before the First Appellate Court and therefore, present Second Appeal at the instance of defendant.
Since nature of impugned judgment and decree is money decree, the appellant is required to deposit Rs.6 lakhs along with 9% interest from the date of filing of the suit i.c. 19.01.2018 before this Court within four weeks from today.
Stand over to 18.09.2024. Registry is directed to call for Record and Proceedings without paper book."Page 1 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:49:00 IST 2024
NEUTRAL CITATION C/SA/407/2023 ORDER DATED: 18/09/2024 undefined
2. Learned advocate Ms. Nameera Dosani appearing for learned advocate Mr. Aftabhusen Ansari for the appellant submits that the appellant is not willing to deposit the amount as stated in order dated 13.8.2024 and requests to pass necessary order.
3. This Second Appeal filed u/s 100 of the CPC challenges concurrent findings arrived at by the learned Courts below, whereby the learned trial Court, Bhuj in Special Civil Suit No.7 of 2018, by judgment and decree dated 27.1.2023, partly decreed the suit of the respondent plaintiff and directed the appellant defendant to pay an amount of Rs.6 lakh to the plaintiff along with interest at the rate of 9% per annum from the date of filing of the suit till realization instead of granting decree of specific performance. Said judgment and decree passed by the learned trial Court has been confirmed and approved by the learned appellate Court vide judgment and decree dated 31.5.2023 in RCA No.72 of 2023.
4. The facts leading to fling of present Second Appeal are as under:-
4.1 The Appellant (original Defendant) is the owner & occupier of the land bearing plot no. 12 & 13 situated at revenue survey no.763/1, Muktidham, New Anjar.
4.2 That the present Respondent, the original Plaintiff, filed a Civil Suit before the Civil Court, Anjar for specific performance of contract allegedly executed on 04.02.2014 alleging that the Appellant had executed an agreement whereby the Appellant agreed to sell his two plots to the Respondent and alternatively Page 2 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:49:00 IST 2024 NEUTRAL CITATION C/SA/407/2023 ORDER DATED: 18/09/2024 undefined the Respondent prayed for the return of money. The Respondent claimed that he paid Rs. 2, 00, 000/- (Rupees Two Lacs Only) out of total Rs. 6, 00, 000/- (Rupees Six Lacs Only) consideration towards the execution of the said agreement. The Respondent has not produced the copy of any agreement to support his claim.
4.3 The Respondent has produced receipt-dated 04.02.2014 & 16.04.2014 whereby he allegedly paid Rs. 2,00,000/- (Rupees Two lacs) and Rs. 4,00,000/- (Rupees Four Lacs Only) to the Appellant. The Appellant denied his signature and stated that, it's not his signature and the same is forged one.
4.4 The Learned Judge party allowed Special Civil Suit No. 07 of 2018 filed by the Respondent and rejected the prayer for performance of contract and has decreed to repay Rs. 6, 00, 000/- (Rupees Six Lakhs Only) with 9% interest vide its Judgement, Order and Decree dated 23.01.2023.
4.5 That, the same was challenged by the Appellant before the Learned District Court, Kutch at Bhuj by filing Regular Civil Appeal No. 72 of 2023, however vide Judgement, Decree and Order dated 31.05.2023 the same was rejected without considering the points raised by the Appellant and without considering the legal aspects involved into it.
4.6 Hence, the Appellant prefers present Second Appeal.
5. In para 3 of the appeal memo, the appellant has framed following substantial questions of law.Page 3 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:49:00 IST 2024
NEUTRAL CITATION C/SA/407/2023 ORDER DATED: 18/09/2024 undefined "I. Whether the Learned Lower Court erred in law by admitting and allowing the Special Civil Suit No.07 of 2018 under the Specific Relief Act, without requiring the production of the original contract or agreement, especially when the transaction occurred over four years prior?
II. Whether the suit was filed after the period of Limitation Act and the same was barred by the Limitation Act?
III. Whether the suit for specific performance or money claim is maintainable to enforce the prohibited transaction under the law?
IV. Whether the Learned Lower Court and the Appellate Court erred in not considering the unjustifiable delay in filing the suit, and its potential prejudice to the Defendant's rights to a fair trial?
V. Is the Learned Lower Court's verification of the signature on the voucher under section 73 of the Evidence Act, without insisting on an expert opinion from a Forensic Science Laboratory, contrary to the principles of natural justice and the rules governing the evaluation of Evidence?
VI. Did the Learned Lower Court and the Appellate Court fail to properly apply the rules concerning the burden of proof, given that the Plaintiff did not produce the original contract and did not provide any reasonable explanation for its non-production?
6. It is mainly argued by learned advocate for the appellant that the plaintiff has not produced original contract for agreement to sell before the learned trial Court, which was alleged to have been executed four years back and yet, the learned trial Court referring to Exhs.36 and 37, passed decree for recovery of the amount, which is alleged to have been paid as advance for the sell of the disputed property. It is also submitted by learned advocate for the appellant that the learned Courts below have committed serious error in believing that the amount said to have been given towards sale consideration has Page 4 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:49:00 IST 2024 NEUTRAL CITATION C/SA/407/2023 ORDER DATED: 18/09/2024 undefined to be repaid despite the suit for specific performance was not maintainable as the agreement to sell was not enforceable and it is prohibited transaction under the law. It is further submitted that the learned Courts below have committed serious error in referring to section 73 of the Evidence Act without insisting on the expert opinion of the FSL to establish the signature of the plaintiff on the receipts produced at Exhs.36 and 37. On above submissions, it is submitted that present Second Appeal involves substantial questions of law and thus, it may be admitted.
7. Having heard learned advocate for the appellant, what could be noticed that the learned trial Court went into trial by framing following issues:-
"1. Whether the plaintiff proves that he is entitled for sum of Rs.6,00,000/- (Six Lakhs Only) along with 18% interest as consideration amount of suit property or he is entitled to obtain mandatory order for On Bhithe execution of sale deed of suit property in his favour? - Partly affirmative
2.Whether the plaintiff is entitled for any specific performance declaration & injunction as asked for? - Negative
3.Whether the defendant proves his defence? - Negative
4.Whether the suit is maintainable?" - Partly Affirmative
8. Both the parties have led the evidence and subsequent thereto, the learned trial Court believed that the plaintiff has proved the issue Nos.1 and 4 and as such, answered issue No.1 in affirmative, issue Nos.2 and 3 in negative and issue No.5 was answered by decreeing the suit in favour of the plaintiff.
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9. What could be noticed that the plaintiff has filed the suit for specific performance and in his deposition, he has admitted that no written agreement to sell has been executed, but he has produced two receipts produced at Exhs.36 and 37 to indicate that the defendant has been advanced Rs.6 lakh by the plaintiff. Noticeably, receipts at Exhs.36 and 37 contain the amount date and photos of the parties to the suit though the recital of agreement to sell are missing, which is Exhs.36 and 37 forming that they are the receipts of money advanced to the defendant. The defendant had denied the signature on Exhs.36 and 37. The learned trial Court took shelter of section 73 of the Evidence Act and compared the signature of the defendant with the signature appeared on Exh.25 in the Vakalatnama as well as examination-in-chief of the defendant at Exh.42 and found that the signature of the defendant in Exhs.36 and 37 are matching with two other admitted documents, which indicates that by Exhs.36 and 37, the plaintiff has lent Rs.2 lakh and Rs.4 lakh respectively to the defendant and the receipt thereof are dated 4.2.2014 and 16.4.2014 and which established that the amount of Rs.6 lakh has been paid to the defendant. The learned Courts below vividly discussed this issue and reached to the conclusion that it is established by the plaintiff that he has lent Rs.6 lakh to the defendant and therefore, the plaintiff was entitled to get back the amount. The learned Courts below have passed necessary judgment and decree directing the defendant to pay back the said amount with 9% interest.
10. Even on facts, perusing various questions framed by the appellant defendant, it seems to be questions of facts and not questions of law. In view of concurrent findings arrived at by the Page 6 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:49:00 IST 2024 NEUTRAL CITATION C/SA/407/2023 ORDER DATED: 18/09/2024 undefined learned Courts below, this Court cannot examine the facts of the case. The only argument canvassed by learned advocate for the appellant is that the learned trial Court had no right to compare the signature of the defendant. However, the answer can be availed by reading section 73 of the Evidence Act.
11. In view of above, no substantial question of law is found, which could permit this Court to entertain the appeal. What could be considered as substantial question of law has been elaborately discussed by the Hon'ble Apex Court in case of Gurbachan Singh (Dead) Through Lrs Versus Gurcharan Singh (Dead) Through Lrs And Others reported in 2023 (0) INSC 639. The relevant para is para 7, which reads as under:-
"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala, (2020) 19 SCC 57 ( 2- Judge Bench), it was observed:-
"27. In HeroVinoth v. Seshammal [ HeroVinoth v. S eshammal, (2006) 5 SCC 545 ] , this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [ Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [ Hero Vinoth v. Seshammal, (2006) 5 SCC 545 ] are set out hereinbelow : (SCC p. 554, para 21) Page 7 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:49:00 IST 2024 NEUTRAL CITATION C/SA/407/2023 ORDER DATED: 18/09/2024 undefined "21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction withtechnical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [ Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172 ] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal case [ Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [ Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969 ] : (Chunilal case [ Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] , AIR p. 1318, para 5).
5. ... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of Page 8 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:49:00 IST 2024 NEUTRAL CITATION C/SA/407/2023 ORDER DATED: 18/09/2024 undefined applying those principles to the particular facts of the case it would not be a substantial question of law. 28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way."
(Emphasis supplied)"
12. In the case of Chandrabhan (Decesaed) through LRs v/s. Saraswati [2022 (13) Scale 777], three conditions have been recognized by the Hon'ble Apex Court to disturb finding of facts viz. The courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.
13. Resultantly, present Second Appeal fails and stands dismissed at admission stage.
14. Consequently connected civil application also stands disposed of.
15. R & P, if called, to be sent back to the concerned Court immediately.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 9 of 9 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Sep 19 2024 Downloaded on : Thu Sep 19 23:49:00 IST 2024