Karnataka High Court
Anantrao Joshi Deceased By Lr Shankar ... vs Lalu S/O Madhu Lamani @ Chavan @ Naik on 22 July, 2024
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NC: 2024:KHC-K:5173
RSA No. 7348 of 2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.7348/2011(SPE/PAR)
BETWEEN:
ANANTHARAO JOSHI
DECEASED BY LRS.,
SHANKAR S/O ANANTHRAO JOSHI
AGE: 41 YEARS, OCC: PRIVATE
R/O. AJREKAR CHAWL,
MEENAXI CHOWK,
BIJAPUR.
...APPELLANT
(BY SRI MADHUKAR M. DESHPANDE, ADVOCATE)
Digitally signed
by SUMITRA AND:
SHERIGAR
Location: HIGH
COURT OF LALU S/O MADHU LAMANI
KARNATAKA @ CHAVAN @ NAIK
AGE: 65 YEARS, OCC: BUSINESS
R/O. BUTNAL VILLAGE NEAR
KMFC MILK DAIRY
BIJAPUR.
R/O. MEENAKSHI CHOWK,
BIJAPUR.
...RESPONDENT
(BY SRI AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI MAHANTESH PATIL, ADVOCATE)
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NC: 2024:KHC-K:5173
RSA No. 7348 of 2011
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO CALL FOR RECORDS, SET ASIDE THE
JUDGMENT AND DECREE DATED 19.09.2011 PASSED IN
R.A. NO.399/2004, BY THE FAST TRACK COURT-I/II,
BIJAPUR AND ALSO THE JUDGMENT AND DECREE DATED
21.04.2001 PASSED IN O.S. NO.148 OF 1992, BY THE
PRINCIPAL CIVIL JUDGE (JR.DN.), BIJAPUR AND DISMISS
THE SUIT.
THIS APPEAL, COMING ON FOR DICTATION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE Mrs JUSTICE K S HEMALEKHA
ORAL JUDGMENT
(PER: THE HON'BLE Mrs JUSTICE K S HEMALEKHA) Assailing the legality and correctness of the judgment and decree dated 19.09.2011 in RA No.399/2004 on the file of the Fast Track Court - I/II, Bijapur at Bijapur, (Hereinafter referred to as 'first Appellate Court' for the sake of convenience) confirming the judgment and decree dated 21.04.2001, in O.S. No.148/1992 on the file of the Principal Civil Judge, Junior Division, Bijapur, (Hereinafter referred to as 'the trial Court' for the sake of convenience) the defendant is before this Court in the regular second appeal. -3-
NC: 2024:KHC-K:5173 RSA No. 7348 of 2011
2. This Court, while admitting the appeal on 21.10.2011, framed the following substantial questions of law:
"1. Whether the judgment and decree of the Courts below is vitiated on the ground that the findings are not based on any evidence?
2. Whether the Trial Court erred in allowing the application for amendment of the plaint?
3. Whether the lower Appellate Court is right in dismissing the appeal without considering the application seeking production of additional documents?
3. This Court on 15.04.2024, framed the additional substantial question of law:
"1. Whether both the Courts have failed to comply the mandatory provisions of Section 16(c) of the Specific Relief Act, 1963?
2. Whether the suit of the plaint is in time? "-4-
NC: 2024:KHC-K:5173 RSA No. 7348 of 2011
4. Sri Madhukar Deshpande, learned counsel for the appellant and Sri Ameet Kumar Deshpande, learned Senior Counsel appearing for the respondent have been heard on the substantial questions of law framed by this Court.
5. Submission of the appellant counsel is on three main grounds:
i. The allowing of application seeking amendment of plaint by substituting the date of death of deceased Smt. Malini Bai caused prejudice to the case of the appellant-defendant and fundamentally changed the nature and character of the suit.
ii. Without deciding I.A. filed under Order 41 Rule 27 CPC, the First Appellate Court was not justified in proceeding to pass judgment.
iii. That the Trial Court has not framed specific issue regarding the readiness and willingness on part of the plaintiff.
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 iv. The suit seeking for specific performance of contract is barred by law of limitation.
v. Elaborating the submission, learned counsel for the appellant has urged the following grounds:
a) The Trial Court had mechanically passed an order allowing the plaintiff to substitute the date of death of Smt. Malini Bai from 15.11.1985 to 15.11.1986 under application - I.A.No.23 under Order VI Rule 17 filed by the plaintiff, at the fag end of the trial to withdraw the admission made by him in his pleadings, changing the entire cause of action of the suit.
b) After allowing the plaintiff to amend the plaint, no opportunity was given to the defendant to file his additional written statement and directly proceeded to pass the judgment.
c) The Trial Court has failed to appreciate that the proposed amendment sought by the plaintiff is an attempt by him to unwrap the case of the defendant-appellant. -6-
NC: 2024:KHC-K:5173 RSA No. 7348 of 2011
d) Taking to Section 31 and Section 58 of the Indian Evidence Act, 1872, learned counsel for the appellant submits that the withdrawal of admission by way of amendment is impermissible in law.
e) The entire case of both the parties revolves on the death of Malini Bai and both the Courts have failed to appreciate that the defendant had no opportunity to prove that Smt. Malini Bai had passed away on 15.11.1985 as the plaintiff sought for amendment at the fag end of the proceedings.
f) To support his contention, that the application for amendment filed by the plaintiff is prejudiced to the case of the appellant-defendant, reliance is placed on the following decisions:
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 i. Ravajeetu Builders and Developers V. Narayana Swamy and Sons and Others1 (Ravajeetu Builders) ii. Basavaraju Vs. Indira2 (Basavaraju)
g) Application for production of additional evidence was filed under Order 41 Rule 27 CPC, without deciding the said application, the First Appellate Court ought not to have proceeded to pass its judgment and not referring disputed signature for second expert opinion and not deciding the interim application filed under Order 41 Rule 27, particularly in light of the amendment carried out by the plaintiff before the Trial Court after the completion of trial have all individually and cumulatively caused grave prejudice to the defendants.
h) In support of his contentions, that the appellate Court was not justified in dismissing the appeal without considering the application seeking production of 1 (2009) 10 SCC 84 2 (2024) 3 SCC 705 -8- NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 additional documents, reliance is placed on the following decisions:
i. State of Rajasthan Vs. T.N. Sahani and others3 (T.N. Sahani) ii. Jatinder Singh and another Vs. Mehar singh and others4 (Jatinder Singh) iii. Imanbee Vs. Abdul Kareem5 (Imanbee) i. That the plaintiff has to prove his readiness and willingness to perform his part of contract and in a suit for specific performance of contract, there must be an issue to be framed regarding readiness and willingness on part of the plaintiff. In support of his contentions, reliance is placed on the following decision:
i. Mehaboob-UR-Rehman (dead) through Legal representatives Vs. Ahsalul6 (Mehaboob-UR-
Rehman) 3 (2001) 10 SCC 619 4 (2009) 17 SCC 465 5 (2021) 2 AIR KARNATAKA R 324 6 (2019) 19 SCC 415 -9- NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 ii. V.S. Ramakrishnan versus P.M. Muhammed Ali7
j) Since the application for amendment is filed at the belated stage, an opportunity to be provided to the defendant to adduce proper evidence and if the Court is of the opinion that non-consideration of the application for additional evidence is not decided by the first appellate Court and if the remand is made, an opportunity to deal with the amendment caused to the plaint is to be provided and the matter needs to be set at the stage of filing additional written statement. In support of his contentions, reliance is placed on the following decisions:
i. Mohan Kumar vs. State of M.P.8
ii. Mallappa Ramappa Naik Vs. Ittappa Kamappa
Banti9
Stating these grounds, learned counsel for the appellant seeks to answer the substantial questions of law framed by this Court in his favour.7
(2022) Live Law SC 935 8 (2017) 4 SCC 92 9 ILR 2020 KAR 5417
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011
6. Per contra, learned Senior Counsel would urge the following grounds:
i. The amendment of the plaint by the plaintiff is of least consequence as amendment was relating to the death of Smt. Malini Bai, as the written statement if looked into, there is no specific denial by the defendants, when the plaintiff has stated the death to be on 15.11.1985. If there was any serious dispute, the defendant would have specifically contended that as on the date of the alleged agreement dated 04.04.1986, the mother of the defendant was not alive and the question of executing an agreement to sell as a power of attorney of his mother would not arise.
ii. The order on the application seeking amendment was allowed and nearly after one year, the judgment was delivered. The defendant did not choose to prefer any appeal challenging the order passed under Order 6 Rule 17 and even in the regular appeal preferred against the judgment and decree of the Trial Court, no
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 ground was raised regarding non-providing of opportunity after allowing the application under Order 6 Rule 17.
iii. Even when an application under Order 41 Rule 27 was filed before the First Appellate Court and a specific contention of the appellant/defendant that the agreement and supporting documents relied upon by the plaintiff were forged and were sent for an opinion of a handwriting expert and the First Appellate Court had remanded the matter to the Trial Court for reference of opinion of the handwriting expert. Challenging the order of remand, MSA was preferred by the plaintiff before this Court and even before this Court, no ground was raised by the appellant regarding the allowing of the application for amendment at a belated stage and not providing an opportunity to file additional written statements. Having not taken any ground at the first instance, the appellant-defendant cannot contend that allowing application under Order 6 Rule 17 prejudices the case of the appellant-defendant.
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011
7. In support of his contention, learned senior counsel for the respondent has placed reliance on the following decisions:
i) TIKAM CHAND AND ANOTHER v.
GADH MAL AND ANOTHER10
ii) Leela Soni and others v. Rajesh
Goyal and others11
8. For the sake of convenience, additional
substantial questions of law are taken for consideration before answering the other substantial questions of law.
Reg. Additional substantial question of law No.2:
9. Suit seeking specific performance of contract based on an agreement of sale dated 04.04.1986 executed by defendant as a GPA holder of Smt. Malini Bai in favour of the plaintiff. The plaintiff issued notice calling upon the defendant to execute the sale deed agreement with 10 AIR 1955 AJMER 12 11 AIR 2001 SUPREME Court 3601
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 respect of the suit property on 25.03.1989. The defendant replied to the notice on 01.04.1989 denying the agreement of sale. The cause of action to the plaintiff arose when the defendant denied the execution of the agreement of sale. The time was not the essence of contract admittedly in the agreement of sale dated 04.04.1986, within three years, notice was issued calling upon the defendant to come forward to execute the sale deed and on denial by the defendant on 01.04.1989, the cause of action arose. Limitation for filing of suit for specific performance, in terms of Article 54 of the scheduled to the Limitation Act, 1963 is three years 'from the date fixed for performance and if no such date is fixed, when the plaintiff has notice that the performance is refused.' In light of Article 54, the plaintiff's suit seeking for specific performance is instituted within three years and hence, the suit of the plaintiff is not barred by limitation. Accordingly, additional substantial question of law No.2 is answered in favour of the plaintiff-respondent.
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 Reg. additional Substantial Question of Law No.1:
10. Regarding readiness and willingness, plaintiff at paragraph No.4 has averred as under:
"The plaintiff was ready and willing to take the sale deed by paying the remaining consideration amount of Rs.10,000/- to her GPA. Plaintiff requested the defendant many times to execute the sale deed by receiving the balance of consideration amount of Rs.10,000/- and to get it registered at the expense of the plaintiff. The defendant represented that he was mentally upset due to the unhappy incident which had taken place and to wait for some time. As the relation between the plaintiff and defendant were cordial the plaintiff kept quite. By 25-3-89, the plaintiff came to know that Malini Bai had expired. As plaintiff went on postponing the execution of sale deed, the plaintiff gave a layer's notice by RPAD dated 25.03.1989 calling upon the defendant to execute the sale deed as per agreement deed executed by him as GPA of her deceased mother Malini Bai. The said notice was received by defendant and defendant gave false reply dated 01.04.1989 totally denying the execution of the agreement deed and the receipt of earnest money etc. In fact, the defendant has purchased the stamp paper of Rs.5/- from the stamp vendor and the
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 agreement deed is got written by the licensed bond writer Sri A.M. Mangoli, who is now dead and the deed is duly attested by two witnesses. This plaintiff has been in possession of the suit property as a tenant from 1985 till 04.04.1986 and from 04.04.1986 he is in possession as owner till now as per agreement of sale deed. This plaintiff constructed tin sheet shed on that property in January - 85 and has been running sugarcane juice shop by running sugarcane juice crushing machine since January - 1985 till now on the suit property by taking energy from KEB."
11. The plain reading of the plaint clearly indicates that the plaintiff has averred that she was ready and willing to perform his part of contract by paying the remaining consideration amount. The defendant did not raise any objections in the written statement about the readiness and willingness on part of the plaintiff. No doubt, the Trial Court did not formulate any issue regarding the readiness and willingness of plaintiff as is mandatory in a suit for specific performance, the non- framing of issue was due to the reasons not raising any
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 objection by the defendant. However, the trial Court has given findings on the readiness and willingness on part of the plaintiff to perform his part of contract, which this Court finds at paragraph No.13 of the judgment of the Trial Court. The non-framing of a specific issue by the Trial Court is not fatal to the case of the defendant as the parties have understood the issue and went on with the trial.
12. The non-framing of issue by the trial Court is not even urged by the appellant before the first appellate court and raising the ground for the first time in a second appeal is not permissible. The averment and proof of readiness and willingness of the plaintiff to perform his part of contract, is an essential condition under Section 16
(c) of the Specific Relief Act and the plaint averments as stated supra, clearly indicates that the plaintiff has averred and the evidence let-in by the plaintiff indicates that he has proved his readiness and willingness to perform his part of contract. The Trial Court and First Appellate Court
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 being satisfied that the plaintiff established his readiness and willingness to perform his part of contract as an essential condition under Section 16 (c) Specific Relief Act has held that the plaintiff is ready and willing to perform his part of contract for getting the sale deed executed from the defendant.
13. In Mehaboob-Ur-Rehman stated supra, the Apex Court has held that the plaintiff seeking enforcement of specific performance of contract must aver in the plaint and prove continuous readiness and willingness to perform his part of contract, in the instant case, the plaintiff has averred and proved his continuous readiness and willingness to perform his part of contract. The decision placed reliance by the appellant does not come to his aid, on the other hand, it is applicable to the present facts and to the benefit of the plaintiff-respondent.
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 Reg. Substantial Question of Law No.2:
14. The plaint avers that the defendant executed the agreement to sell on 04.04.1986 as the GPA of his mother Malini Bai. It is stated that Malini Bai-mother of defendant was owning properties including the suit CTS number and defendant No.1 represented to the plaintiff that he is the general power of attorney holder of his mother Malini Bai and he is authorized under the power of attorney to deal with her property in any manner and on his representation, the defendant as general power of attorney holder leased the suit property to the plaintiff in the month of January, 1985 and since then, he is running a sugarcane juice center by fixing electric motor to the sugarcane juice crushing and later, on 04.04.1986, the defendant as GPA of Malini Bai entered into an agreement to sell the property, which was an open site to the plaintiff for a sale consideration of Rs.25,000/- and Rs.15,000/- was paid as an earnest money / part of consideration amount and remaining Rs.10,000/- was to be paid at the
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 time of registration of the sale deed and from the date of agreement, the plaintiff is in possession as an agreement holder. Further, the plaintiff was ever ready and willing to perform his part of contract, the defendant though on several occasions asked to execute the sale deed, having not come forward, the plaintiff issued notice seeking for execution of the sale deed.
15. In the plaint, the date of death of the defendant's mother is mentioned as Malini Bai expired on 15.11.1985, written statement filed by the defendant is disputing the agreement of sale / any agreement being executed as a power of attorney holder of his mother or authorized by his mother to deal with the property. The defendant stated that this agreement of sale is the outcome of a forged, manipulated, created document by the plaintiff. In the written statement, there is not even a whisper that the defendant's mother died prior to the execution of the agreement of sale. the plaintiff let in evidence as P.W.1 and on 19.06.1996, she produced the
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 no-entry certificate issued by the CMC authority to show that the death entry of mother of defendant is not found in the concerned register from 15.11.1985 to 15.12.1985 and marked it as Ex.P.26. The plaintiff also produced the death extract of the mother of the defendant at Ex.P.27 indicating the date of death of the defendant's mother- Malini Bai is on 15.11.1986. The defendant cross- examined the plaintiff on Ex.P.26 and P.27 that the said documents are not concerned to his mother. D.W.1 also let-in evidence and in his chief, stated that his mother had died on 15.11.1985. Application-I,.A.No.23 was filed on 10.04.2000 by the plaintiff under Order 6 Rule 17 to permit the plaintiff to amend the plaint in para No.2 and amend the plaint as Malini Bai expired on 15.11.1986 instead of 15.11.1985. The ground urged was through oversight and typing mistake, the date of death of defendant's mother is shown as 15.11.1985 instead of 15.11.1986, the appellant-defendant filed objections to the application and the application on contest was allowed permitting the plaintiff to amend the plaint at paragraph
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 No.2 in respect to the date of death of the mother of defendant, after the amendment, the Trial Court considered the matter on merits and held that the date of death of Malini Bai is on 15.11.1986 as is evident from Ex.P.26 and P.27 and the document the certificate of death produced by the defendant at Ex.D.1 where it was mentioned as 15.11.1985 was disbelieved by the Trial Court and by judgment and decree, the trial court decreed the suit for specific performance. The defendant preferred appeal before the first appellate Court. the grounds of the appeal papers in R.A. No.399/2004 are perused. There is no single ground raised by the defendant that allowing an application for amendment under Order 6 Rule 17 has caused prejudice to the defendant's case. It is also relevant to note that even before allowing the application, the plaintiff has let in evidence and the death certificate produced indicates the date of death of Malini Bai in the year 1986. As rightly contended by the learned senior counsel the date of death of Malini Bai is of least consequence, as the defendant was the owner of the suit
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 property and the ownership of the defendant is not disputed, whether he executes through a power of attorney or through himself, the question was, whether there was an agreement of sale entered into or not. It is not the case of the defendant that the plaintiff being unaware about the death of the mother of the defendant, has created the document as executed by the GPA holder and that there is a manipulation by the plaintiff. In the absence of the same, the death whether it is on 15.11.1985 or 15.11.1986 does not affect the facts of the case. even otherwise, the plaintiff had even before the amendment sought and marked the document at Ex.P.26 and 27 to show the death of Malini Bai was on 15.11.1986 and from 15.11.1985 to 15.12.1986, there was no entry of death of Malini Bai.
16. One material aspect that needs to be stated here is that in the first round, before the First Appellate Court an application under Order 26 Rule 10A CPC seeking to refer to the handwriting expert. The said application-
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 I.A.No.3 was allowed and the appellate Court set aside the order of the trial Court and directed the trial court to send the application for an opinion of the handwriting expert. Challenging the order of remand, the appellant preferred MSA No.115/2005 and this Court allowed the miscellaneous second appeal, set aside the order of the First Appellate Court and directed the First Appellate Court for referring the suit document and any other document, which is of the opinion of the First Appellate Court to be referred for opinion of the handwriting expert under Order 41 Rule 28 and directed the First Appellate Court to take such oral evidence or it may refer the matter for taking additional evidence by the First Appellate Court under Order 41 Rule 28 CPC.
17. When such proceedings were pending before the Trial Court and the First Appellate Court, the appellant made no endeavor to challenge the order or make any averment regarding the application for amendment being allowed at a belated stage or any grievance regarding the
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 amendment and the attempt made by the defendant is for the first time before this Court and accordingly, this substantial question of law framed by this Court is answered in favour of the plaintiff-respondent and against appellant-defendant.
Reg.: Substantial Question of Law Nos.3 and 1:
18. On remand, the First Appellate Court referred the suit document-Ex.P.1 for the expert opinion, the expert opinion was received at Ex.C.1 to C.4 and the witness was examined as CW1. The handwriting expert opined that the signature found on the admitted and disputed signature are of one person. The opinion submitted by the handwriting expert clearly goes to show that it is the defendant who has put the signature on Ex.P1 and the signature found on Ex.P.1A and P.1B are similar to the signature found on the written statement and deposition of DW1. The commissioner was cross examined at length by the defendant, the cross examination of CW1 clearly supports his report and
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 nothing worthwhile is elicited from his cross examination to disbelieve the report submitted. The First Appellate Court considered the opinion of the handwriting expert and arrived at the conclusion that the opinion of the handwriting expert is a corroborative piece of evidence and definite conclusion can be arrived that the defendant being the GPA holder of his mother had received the money of Rs.15,000/- and executed Ex.P.1.
19. The crucial aspect is that one more IA was filed by the appellant under Order 41 Rule 27 read with Order 11 Rule 14 CPC seeking production of additional evidence. The documents in the annexed list of the applications which are :
i. The certified copy of the order sheet in HRRP No.83/1981, ii. Xerox death extract of deceased Malini Bai dated 15.11.1985, iii. Expert handwriting opinion by Deepak Kashyap with 7 photos.
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011
20. According to the learned counsel for the appellant the application filed by the appellant is not considered by the First Appellate Court and hence, non-
consideration of the application has vitiated and caused serious injustice to the appellant and that the First Appellate Court without deciding the said application, has proceeded to pass the impugned judgment resulting in miscarriage of justice.
21. The law is well settled that when an application is filed before the Court, it is the duty of the Court to pass the orders on the application either rejecting or allowing. In the instant case, the application is filed under Order 41 Rule 27 CPC. It is the contention of the appellants that there was an order passed by the appellate Court to consider the application along with the main and the application was pressed in course of the arguments. Learned senior counsel for the respondent submits that there is no material forthcoming in the order as to the
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 appellant having pressed the application to be heard. The non-consideration of the application is fatal or not needs to be considered in the light of the material placed before this Court. What is sought to be produced by way of additional documents is to show the date of death of his mother Malini Bai and the reference about second opinion of a private person regarding the handwriting. The First Appellate Court while passing the order has considered the Court commissioner's report who was appointed by the Court on the application by the defendant and the Court commissioner submitted his report indicating that the signature on the Ex.P.1 is that of the signature of defendant and the question of further opinion from a second person who is a private expert, private document cannot be considered. It is not the duty of the court to entertain the application filed by the parties more than once on the same subject and the court should not hesitate to reject the application in order to render speedy justice. The application filed by the appellants under Order 41 Rule 27 and non-consideration of the application in the
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 instant case is not fatal, as the Appellate Court did not require the said document to enable it to pronounce the judgment or for any other substantial cause.
22. The Apex Court in the case Leena Soni and others v. Rajesh Goyal and others12 has held that under Section 100, the High Court can exercise its powers on findings of facts only when there is a perversity viz a viz., a concept of justice and the perversity itself. Powers under Section 103 CPC can be exercised only if a core issue involved in the case is not decided by the Trial Court or the First Appellate Court and the relevant material is available on record to adjudicate upon the said issue. The Apex Court has held at paragraph Nos.20, 21, 22 and 23 as under:
"20. It will be apt to refer to Section 103 of C.P.C. which enables the High Court to determine the issues of fact:
"103. Power of High Court to determine issue of fact.- In any second appeal, the High Court may, if 12 AIR 2001 SC 3601
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal, -
(a) which has not been determined by the Lower Appellate Court or both by the Court of first instance and the Lower Appellate Court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100."
21. The section, noted above, authorises the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations : (1) when that issue has not been determined both by the trial court as well as the Lower Appellate Court or by the Lower Appellate Court; or (2) when both the trial court as well as the Appellate Court or the Lower Appellate Court has wrongly determined any issue on a substantial question of law which can properly be the subject matter of second appeal under Section 100 of C.P.C. [see : Jadu Gopal Chakravarty (D) by his L.Rs. vs. Pannalal Bhowmick & Ors. (1978 (3) SCC
215)].
22. Inasmuch as in the instant case on both the issues relating to clauses (a) and (o), referred to above, on account of its erroneous approach the first appellate court did not
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 determine the relevant issues, in our view, the High Court was well within its jurisdiction in recording the afore-mentioned findings of fact for which the evidence was on record as Section 103 of the C.P.C. empowers the High Court to determine such issues of fact.
23. In the result, we find no illegality in the judgment and order of the High Court, under challenge. The appeal is devoid of any merit. It is dismissed with costs."
23. On perusal of the judgment of the Courts below, there is no perversity or illegality in the orders passed by the Courts below. It is only when an issue that involves a substantial question of law that can be adjudicated by the High Court itself instead of remanding the case to the Court below provided there is sufficient evidence on record to adjudicate upon the said issue and other condition mentioned therein stand fulfilled. The suit is of the year 1992, the parties have spent time before the Courts for nearly 3 decades, remanding the matter for a simple reason of non consideration of an application which
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NC: 2024:KHC-K:5173 RSA No. 7348 of 2011 is not fatal to the case of the appellant would not serve the purpose and this Court finds no grounds to remand the matter and the substantial questions of law Nos.3 and 1 framed by this Court are answered against the appellant and this Court pass the following:
ORDER i. The regular second appeal is hereby dismissed.
ii. The judgment and decree of the Courts below stands confirmed.
Sd/-
(K S HEMALEKHA) JUDGE SBS List No.: 1 Sl No.: 41 CT: VD