Orissa High Court
Unknown vs Radheshyam Dash on 28 June, 2019
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT : C U T T A C K
R.S.A. NO.92 OF 2010
From the judgment and decree passed by the Additional District
Judge, Bargarh in RFA No.36 of 2008 confirming the judgment and
decree passed by the Civil Judge (Sr.Divn.), Bargarh in C.S. No.109 of
2003.
Purusottam Padhan : Appellant
-Versus-
Radheshyam Dash : Respondent
For Appellant : Mr.A.P.Bose
For Respondent : M/s.S.K.Mohanty, Ms.P.Jena
& Mrs.S.Mohanty
PRESENT:-
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Date of hearing : 19.06.2019 : Date of Judgment : 28.06.2019
Biswanath Rath, J. This is a Second Appeal filed under Section 100 of
Civil Procedure Code involving a challenge to the judgment and
decree dated 28.1.2010 & 15.2.2010 respectively involving R.F.A.
No.36/2008 on the file of Additional District Judge, Bargarh
thereby confirming the judgment and decree dated 3.10.2008 and
17.10.2008 respectively involving C.S. No.109/2003 on the file of
Civil Judge (Sr.Divn.), Bargarh.
2. Short background involving the case is that the
respondent as plaintiff filed C.S. No.109/2003 praying for a decree
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directing the defendant to execute the sale deed for transfer of the
"A" Schedule land in favour of the plaintiff after receiving the
balance amount of Rs.7000/- or in the alternate to refund the
advance sum of Rs.25,000/- with pendente lite interest by the
defendant to the plaintiff as well as litigation cost. The plaint
averment is that the defendant remaining as exclusive owner and in
possession of the 'A' Schedule land on the strength of a registered
sale deed dated 11.1.1991. On expressing his desire to sell the
disputed land, the defendant, the present appellant, approached the
plaintiff to purchase the 'A' Schedule land. Plaintiff agreeing to
purchase entered into a contract for sale for a consideration of
Rs.32,000/-. In the process, the defendant received a sum of
Rs.25,000/- from the plaintiff as advance on 13.1.2003 executing a
registered agreement for sale in favour of the plaintiff bearing no.73
dated 13.1.2003 with promise by the defendant to execute the
registered sale deed facilitating transfer of the 'A' Schedule land
within one month after obtaining necessary permission from the
Consolidation Authority. It is further averred that the plaintiff on
subsequent occasions requested the defendant to obtain necessary
permission and further to execute the registered sale deed upon
receiving the balance consideration of Rs.7000/-. The plaintiff
alleged that the defendant not only failed to obtain permission
within reasonable time but forced the plaintiff to issue a registered
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Pleader Notice on 1.8.2003 for specific performance of contract by
the defendant. It is further alleged that in spite of receipt of the
registered Pleader Notice, the defendant failed to obtain necessary
permission and also to execute the sale deed within one month and
remained silent on the issue. The plaintiff on the premises of being
ready and willing to pay the balance consideration money and his
attempt to the noticee being failed constrained to file the suit for
relief as indicated herein above. The suit was registered as C.S.
No.109/2003 on the file of Civil Judge (Sr.Divn.), Bargarh.
3. On his appearance the defendant-appellant filed
written statement. While denying the claim of the plaintiff, the
defendant took a plea that while he was the exclusive owner and in
possession of the suit land, the plaintiff since had business
transaction with the defendant, the defendant used to execute
different documents in favour of the plaintiff on 17.1.1996,
24.7.1998 and 22.2.2000. The defendant also denied execution of
any deed between the parties consenting of sale of land of the
defendant particularly 'A' Schedule land. The defendant, as such,
flatly denied the claim of the plaintiff that he had never received any
amount from the plaintiff, further in response to the Pleader Notice
contended that as he was ill, he was not in a position to respond the
Pleader Notice at the instance of the plaintiff. The defendant filed an
amended written statement taking a new plea that the plaintiff
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being a regular Money Lender since 1996 without licence was
managing to make forged deeds involving the suit. The defendant
further pleaded that it is on the other hand, the defendant
mortgaged the deed dated 17.1.1996 and delivered possession of
the same, as such the plaintiff came into possession of the disputed
land. Defendant further pleaded that as per the condition in the
mortgage deed, the plaintiff was to possess the suit land in lieu of
interest and the defendant was to get back the land after the
principal is paid. Defendant also alleged that the plaintiff
anticipating problem for his money lending business, to get rid of
the provision of the O.M.L. Act, forced the defendant to execute the
document, i.e., registered deed of agreement dated 13.1.2003 and
thus registered the document accordingly. On the plea of creation of
a forged registered document, the defendant claimed that the
plaintiff is not entitled to any relief involving the suit.
4. In the trial, the plaintiff, respondent herein
examined P.Ws.1 & 2 and exhibited Exts.1 to 4 and also Ext.1/A.
Similarly the defendant, appellant herein examined four witnesses
and exhibited Ext.A to Ext.C/4.
5. On completion of the pleading, the trial court
framed the issues as follows :-
"I. Whether the suit is maintainable ?
II. Whether there is cause of action to file the
suit ?
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III. Whether the plaintiff and defendant had
entered into an agreement on 13.1.2003 for sale of the
suit land by the defendant to the plaintiff and if the
defendant had agreed to execute a regular sale deed
within a month after obtaining necessary permission
from the consolidation authority ?
IV. Whether the plaintiff had fraudulently
obtained the agreement for sale in question from the
defendant during course of business ?
V. Whether the plaintiff is entitled to the
relief claimed ?
VI. What other reliefs the plaintiff is entitled
to ?"
In the trial, the trial court while deciding Issue
Nos.III and IV, as major Issues, came to give finding on Issue Nos.III
& IV in favour of the plaintiff and against the defendant. It is as a
consequence of finding on Issue Nos.III & IV as well as other Issues
involved therein, the trial court ultimately allowed the suit by
passing the following order :-
"The suit be and the same is decreed on
contest against the defendant but in the circumstances
without any cost. The defendant is directed to refund a sum
of Rs.25000/- to the plaintiff along with pendetelite and
future interest @ 10% P.A. within three months hence,
failing which the plaintiff shall be at liberty to realize the
same through due process of law."
6. The defendant as appellant preferred R.F.A.
No.36/2008, which R.F.A. was decided on contest with affirmation
of the judgment by the trial court and the order of the 1st appellate
court reads as follows :-
"In the result, the present appeal is dismissed
on contest. The parties are to bear their own costs. The
judgment and decree passed by the learned Civil Judge
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(Senior Division), Bargarh in Civil Suit No.109 of 2003
stands confirmed."
7. Being aggrieved by the judgment and decree of
both the courts below, the appellant preferred the present Appeal,
which was admitted by this Court by order dated 15.7.2010 on the
following substantial questions of law :-
"Whether the learned 1st Appellate Court was
correct in not exercising the powers U/o.41, Rule-25,
C.P.C. is remanding the matter to the learned Trial Court
to answer the specific issues framed on 8.10.2007 which it
would have been answered would have materially effected
the merits of the case and would have in fact non-suited
the plaintiff ?"
8. Advancing his argument, Sri A.P.Bose, learned
counsel for the appellant on reiteration of the facts involved in the
trial proceeding and the evidence involving the trial proceeding
while admitting that Issue Nos.III & IV remained vital Issues for
determination of the dispute involving the suit involved contended
that for the defendant raising the plea of mortgage in challenging
the registered document taking help for a direction for specific
performance of contract against the defendant, the trial court erred
in not framing the specific Issues. Taking this Court to the lower
appellate court's judgment and the finding in paragraph-9 thereof,
Sri Bose, learned counsel for the appellant submitted that once the
lower appellate court remained satisfied that there was requirement
of an issue involving the question of money lending between the
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parties and that the determination of an issue on the question of
involvement of money lending is there or not, it was incumbent
upon the lower appellate court at least to frame Issue on the
question of involvement of money lending between the parties or not
and remanding the matter to the trial court for recording evidence
and his findings on such Issues and for remitting the matter back
to the lower appellate court for consideration of the same or the trial
court itself to take decision in exercise of power under Order 41
Rule 25 of C.P.C.
9. To the contrary, learned counsel appearing for the
respondent taking this Court to the discussions and findings of the
lower appellate court submitted that there has been right
consideration of the issue involved herein.
10. Considering the above aspect and recording the
objection of the learned counsel for the respondent that Issue
Nos.III & IV framed by the trial court having already taken care of
such dispute and as such, there was no necessity of either framing
such Issue, remitting the matter back to the trial court was
unwarranted. This Court finds the crux involving the Second Appeal
is as to whether there was sufficient material available to decide on
the question of mortgage involving therein and if the trial court had
in fact decided such question, while considering Issue Nos.III & IV
involved therein. It is at this stage taking into account Issue Nos.III
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& IV being relevant for the purpose, this Court finds, while
determining the Issue Nos.III & IV, the trial court in its discussion
in paragraphs-7 to 14 has already taken care of such Issues by
taking a decision whether there existed a deed of mortgage between
the parties or not and answered the said dispute against the
defendant also involving the mortgage aspect.
11. In the circumstance, this Court finds, there is
right appreciation of this Issue by the lower appellate court as
clearly borne from the discussion made in paragraph-9 of the lower
appellate court's judgment. In the result, while observing that there
was no question of exercising of power under Order 41 Rule 25 of
C.P.C., this Court finds, there is no infirmity in the judgment and
decree of either of the courts.
12. Accordingly, the Second Appeal stands dismissed
on contest. The judgment and decree dated 3.10.2008 and
17.10.2008 respectively involving C.S. No.109/2003 on the file of
Civil Judge (Sr.Divn.), Bargarh stand confirmed. No cost.
................................
Biswanath Rath, J.
Orissa High Court, Cuttack. The 28th day of June, 2019/mkr, secy.