Calcutta High Court (Appellete Side)
Nemai Chandra Dey vs Prasanta Chandra & Anr on 25 March, 2014
Author: Debangsu Basak
Bench: Ashim Kumar Banerjee, Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Before:
The Hon'ble Justice Ashim Kumar Banerjee
&
The Hon'ble Justice Debangsu Basak
S.A.T. No. 40 of 2013
C.A.N. No. 12727 of 2013
Nemai Chandra Dey
Vs.
Prasanta Chandra & Anr.
For the Appellant : Mr. Rabindra Narayan Dutta, Advocate
Mr. Sibasish Ghosh, Advocate
Mr. Chandi Charan De, Advocate
For the Respondents : Mr. Animesh Mukherjee, Advocate
Heard on : March 14, 2014
Judgment on : March 25, 2014
DEBANGSU BASAK, J.
A second appeal at the stage of admission was dismissed on December 12, 2013 on the ground of non-appearance of the learned Advocate for the appellant. By the present application the appellant sought recalling of the order of dismissal. We proposed to hear both the recalling applications as also the admissibility of the second appeal. Learned Counsel for the parties advanced arguments on such basis. Concurrent findings of the Courts below were assailed in the second appeal. The Trial Court decreed the suit. On appeal the decree was sustained. A Pardanashin lady and illiterate filed a suit for cancellation of two deeds of gift executed by her, for declaration, permanent injunction and in the alternative recovery of khas possession. The plaintiff owned few properties. The plaintiff was without any relative except the son of her husband's brother, namely, the Defendant No. 1. The plaintiff depended entirely upon the Defendant No. 1 for the management of her properties. As a Pardanashin lady, she never went out of the house except under exceptional circumstances. It was claimed by the plaintiff that the Defendant No. 1 informed the plaintiff that, the name of the plaintiff was not recorded in the settlement record and that, she was required to file a case. The Defendant No. 1 assured the plaintiff that, he would be making all necessary arrangement for correction of the settlement record in the event the plaintiff executed a power of attorney in his favour. The plaintiff agreed to do so relying on the Defendant No.
1. The Defendant No. 1 along with unknown persons came to the plaintiff and requested her to sign the power of attorney. The plaintiff signed the documents given to her at the instance of the Defendant No.
1. She was informed by the Defendant No. 1 that the sub-registrar would attend the plaintiff and finalize the power of attorney. Accordingly, one gentleman with other persons attended the plaintiff at her house and questioned her whether she signed the document or not. The plaintiff admitted such signature. Such persons took her left thumb impression on the documents. The plaintiff did not know the contents of the documents. The documents were not read over and explained to her. The plaintiff alleged that, the Defendant No. 1 took money to file the so-called case on her behalf. Later that year the sister of the plaintiff and his son visited the plaintiff. The plaintiff informed them of the power of attorney. The Defendant No. 1 was called upon to show the power of attorney. The Defendant No. 1 avoided the matter. Thereafter, the son of the sister of the plaintiff made searches in the registry office when the two deeds of gift came to light. The plaintiff confronted the Defendant No. 1 when the Defendant No. 1 started mistreating the plaintiff and threatened her with dire consequences. The plaintiff was constrained to leave her residence and stay at Santragachi with her sister. The son of the sister obtained certified copies of the two registered deeds from the sub-registry office. In such circumstances the plaintiff filed the suit against the defendants.
The Defendant No. 1 contested the suit by filing written statement. The Defendant No. 1 claimed that the plaintiff and her husband took the Defendant No. 1 on adoption and that he was the adopted son of the plaintiff. The Defendant No. 1 looked after the plaintiff. The plaintiff was intelligent, educated and after being satisfied with the service of the Defendant No. 1 made the two deeds of gift. The plaintiff voluntarily executed and registered the two gift deeds. The sons of the sister of the plaintiff in order to grab the property took the plaintiff to Santragachi and made her file the suit against the defendant.
After considering the pleadings the Trial Court framed nine issues. At trial the plaintiff gave evidence. After considering the evidence led by the parties the Trial Court came to the finding that, the plaintiff was a Pardanashin aged lady. On behalf of the defendant two witnesses were examined. Both the witnesses admitted that the plaintiff was a Pardanashin lady. Once the fact that the plaintiff was a Pardanashin lady was established, it was for the defendants to establish that the deeds of gifts were executed by the plaintiff after understanding the contents of such deeds.
The Trial Court after considering the evidence led by both the parties found that, the plaintiff never intended to execute any deed of gifts. The Trial Court also came to the finding that, the Defendant No. 1 managed to have the deed of gifts executed by the plaintiff by fraudulent misrepresentation. The Trial Court considered the deposition of the defendant witness No. 1 that, the deeds were read over and explained by the scribe of the deed to the plaintiff and that, the plaintiff read the two deeds. The scribe of the deed of gifts deposed on behalf of the defendants and claimed that, he read over and explained the deeds to the plaintiff and the plaintiff read over the deeds by herself. The Trial Court found that, the two deeds of gifts marked as Exhibits 'A' and 'B' did not contain any writing to the effect that, the deeds were read over and explained to the plaintiff. The Trial Court held the deed of gifts were not read and explained to the plaintiff and that, the defendants were not able to discharge their burden of proof that, the impugned deeds were executed by the plaintiff after understanding the contents thereof as deeds of gift. The Trial Court found that, the defendants failed to prove that the two deeds of gift were executed by the plaintiff after understanding the nature of the transaction. In such circumstances the Trial Court decreed the suit in favour of the plaintiff. The defendants preferred an appeal which was dismissed. On second appeal, at the stage of its admission, on behalf of the appellant it was contended that, the two deeds of gifts were duly executed by the plaintiff. It was contended that, the plaintiff was not illiterate and not a Pardanashin lady. In any event, the plaintiff executed the documents which were registered. Having executed the registered documents the plaintiff was bound by the deeds of gifts. On behalf of the appellant it was next contended that, the Appeal Court was required to assess the judgment of the Trial Court. In the instant case, the Appeal Court did not assess the judgment of the Trial Court and had mechanically affirmed the judgment in appeal. He relied on 2001 Volume 3 Supreme Court Cases page 179 paragraph 15 (Santosh Hazari v. Purushottam Tiwari) and submitted that, the impugned judgment of the Appeal Court ought to be set aside and that the suit should be dismissed.
In Santosh Hazari (supra) the Supreme Court laid down what would constitute 'substantial question of law'. It also laid down the parameters under which the first Appellate Court would operate. The Hon'ble Supreme Court was of the view that an Appeal Court agreeing with the view of the Trial Court need not restate the effect of the evidence or reiterate the reasons given by the Trial Court; expression of general agreement with reasons given by the Court, decision of which was under appeal, would ordinarily suffice. Note of caution was added to such general proposition. Their Lordships cautioned that expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the Appellate Court for shirking the duty cast on it.
In the instant case, the judgment of the Trial Court was elaborate and detailed. All aspects of the matter urged before the Trial Court was considered and adequate reasons given for arriving at the findings returned. In the instant case, the Appeal Court was of the view that the contentions of the plaintiff was acceptable and that the Court below was correct in arriving at the findings returned and that no interference in the judgment and decree of the Trial Court was called for. Apart from the Appeal Court's judgment we considered the judgment of the Trial Court also. In course of arguments the appellant was not in a position to demonstrate any perversity in the judgment of the Trial Court warranting an interference. In absence of perversity being demonstrated we were constrained not to admit the second appeal as no substantial question of law arose.
It was contended on behalf of the appellant, relying on 2013 Volume 3 Calcutta High Court Notes (Supreme Court) page 140 (Everest Cylinders Pvt. Ltd. v. State of U.P.) that, on second appeal the Court ought not to have dismissed the second appeal on merit in absence of the Counsel of the appellant.
In Everest Cylinders Pvt. Ltd. (Supra) the Hon'ble High Court after considering Order 41 Rule 17 was of the view that the Appellate Court was not empowered to dismiss the appeal on merits where the appellant remained absent or was left unrepresented on the date fixed for hearing of the appeal. In the instant case, the second appeal was not disposed of on merits by the Order dated December 12, 2013. The order of dismissal dated December 12, 2013 recorded that the appeal was summarily dismissed under Order 41 Rule 11 of the Code of Civil Procedure, 1908. Consequent upon such dismissal the application for injunction was also dismissed.
On behalf of the respondent it was contended that, the application was not maintainable in view of Chapter 10 Rule 2 of the Appellate Side Rules. He next contended that, since there were concurrent finding of facts by the two Courts below, it would not be proper to intervene on second appeal particularly when no substantial question of law was raised. He submitted that, no question of law was raised far to speak of substantial question of law. He pointed out that, the decree under appeal was already executed.
On behalf of the appellants it was urged that, five substantial questions of law arose requiring the second appeal to be admitted. We have considered the suggested five substantial questions of law urged and we did not find that any of them could be termed to be substantial questions of law. The first ground raised on behalf of the appellant related to the execution of the deed of gifts by the plaintiff and her understanding of the same. These issues were raised and were adjudicated upon. The plaintiff was found to be a Pardanashin lady and to have executed the deeds of gifts without understanding the contents thereof. Such finding of fact was upheld on appeal. The appellant did not show any material to establish that, the finding of fact on such issue returned by the Trial Court and affirmed on appeal were perverse. No substantial question of law could be said to have arisen on the basis of finding of fact which could not be demonstrated to be perverse. The other grounds raised on behalf of the appellant related to the burden of proof under the Evidence Act and the question of limitation. The Trial Court found the cause of action of the plaintiff to arise on October 4, 1993. The Trial Court did not find the suit was barred by the laws of limitation. Nothing was demonstrated in support of the contention that, the suit was barred by the laws of limitation. The deeds were executed on October 1, 1993. The plaintiff became aware of such deeds on the visit of the son of her sister in Bhadra 1400 BS. The plaintiff, thereafter, obtained the certified copy of such deed. The suit was filed in 1999.
So far as the burden of proof was concerned we did not find that, the Trial Court acted with any irregularity in arriving at the findings recorded in the judgment. The appellant was not able to demonstrate any perversity in the findings arrived at.
We are, therefore, not inclined to recall the Order dated December 12, 2013. C.A.N. No. 12727 of 2013 is disposed of. There will be no order as to costs.
Ashim Kumar Banerjee, J:
I agree.
[ASHIM KUMAR BANERJEE, J.] [DEBANGSU BASAK, J.]