Punjab-Haryana High Court
Charan Singh And Anr. vs Jagtar Singh And Ors. on 12 March, 1999
Equivalent citations: (1999)121PLR719
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. Suit of the plaintiffs was dismissed by the learned Trial Court, vide judgment and decree dated 14.2.1995, however, on appeal, they partially succeeded before the learned First Appellate Court and still being dissatisfied with the judgment and decree passed by the learned First Appellate Court dated 26th July, 1997, the present Regular Second Appeal has been filed by the plaintiffs-appellants.
2. A suit for specific performance was filed by Charan Singh against Jagtar Singh and others claiming specific performance of the agreement dated 25.10.1983 for sale of the land measuring 19 bighas 8 biswas as detailed in the plaint for a total sale consideration of Rs. 1,35,800/-. Out of which Rs. 30,000/was paid and balance was to be paid subsequently. This suit for specific performance was contested by dependent No. 2 and 3 more particularly, who took up various preliminary objections in regard to maintainability of the suit misjoinder of necessary parties and on the alleged facts that the entire suit was false, frivolous and vague and the same was liable to be dismissed. The defendants had taken up the plea that the agreement did not effect their rights in any way whatsoever and specific plea was taken that the judgment and decree passed earlier by the Courts of having competent jurisdiction was neither collusive nor was a result of fraud, as such, they contested the suit. The learned Trial Court framed the following issues-
(i) Whether the Jagtar Singh defendant executed an agreement of sale in favour of the plaintiff? OPP
(ii) Whether if issue No. l is proved the plaintiffs had been ready and willing to perform their part of the contract?
(iii) Whether the defendants Nos.4 and 5 are bona fide purchaser? If so, its effect? OPD
(iv) Whether the plaint has not been verified according to the provisions of CPC? If so its effect? OPD
(v) Whether the suit is not maintainable in the present form? OPD (v-A) Whether the property in dispute is ancestral in the hands of the defendant No. l? OPD (v-B) Whether the defendants No. 2 and 3 have become the owners of property in dispute? OPD (v-C) Relief."
3. The learned Trial Court vide its judgment and decree dated 14.2.1995 dismissed the suit of the plaintiff with costs. Dissatisfied with the judgment and decree of the learned Trial Court, first appeal was preferred before the learned District Judge, Ludhiana. The appeal was partly accepted vide judgment and decree dated 26.7.1997 and an order/decree for recovery of Rs. 30,000/- with proportionate cost with 6% interest was passed in favour of the appellant. Still being dissatisfied with the judgment and decree of the learned 1st Appellate Court the present appeal has been filed. It is to be noticed at the very out set that the appeal was barred by time and by order dated 11.11.1998 the delay in filing the appeal of 205 days was condoned and the appellant was permitted to pay the Court fee afresh as the brief of the counsel was stated to have been lost in the Registry of this Court. Though, according to the Registry the brief had been taken by the Clerk of the Counsel. However, the said order has become final between the parties. As such, I do not find need to discuss this question any further.
4. The basic controversy raised by the learned Counsel for the appellant is that during the pendency of the appeal an application was filed under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure for leading additional evidence. It was stated that by means of that application that the applicants plaintiff was entitled to produce and prove on record the jamabandis for the year 1987-88, 1988-89 and also the ak shijra for the year 1992-93 and further the experts evidence to prove the pleas taken by the plaintiff. The application was pending before the learned 1st Appellate Court and appears to have been filed somewhere on 12.3.1997. The learned 1st Appellate Court passed the judgment on 26.7.1997 and no specific order was passed in relation to that application. The contention raised on behalf of the appellant is that the judgment and decree of the learned 1st Appellate Court is liable to be set aside. On the other hand the learned counsel for the respondent contended that the judgment and decree of the 1st Appellate Court is not liable to be set aside because the appellant waived his right as is clear from the paragraph 12 of the judgment of the learned 1st Appellate Court.
5. Having heard the learned counsels for the parties. It is clear that application for additional evidence was filed on 12.3.1997 to which a reply was filed by the present respondent on or about 29.4.1997. The matter was fixed before the learned 1st Appellate Court on 29.4.1997 on which date the reply was received and the application was ordered to be listed for hearing alongwith the case. The case was fixed for hearing on 28.5.1997 and thereafter on 25.6.1997 and then on 17.7.1997 and finally judgment was pronounced on 26.7.1997. It is not disputed before me that either the judgment of the Zimni orders on the file do not reflect that the learned 1st Appellate Court in any way dealt with the application filed by the applicant-appellant. Non determination of this application does amount to an error of jurisdiction. It is a settled principle of law that wherever an application is filed for additional evidence prior to the pronouncement of the judgment the Court is obliged to deal with such application in accordance with law. The obligation to pass order lies on the Court and not on the litigant. Even if it is assumed for the sake of argument that application was seriously not pressed by the applicant, it was mandatory for the learned Court to record it so in the order sheet. There could be no waiver in relation to passing of orders. The record produced by the learned counsel for the parties before me does not reflect that applicant intended to waive or give up this application as not pressed before the learned 1st Appellate Court. Paragraph 12 of the judgment reads as under:-
"12. No other contention has been raised at the time of arguments by the counsel for the parties. Therefore, the findings of the 1d. -lower Court on the remaining issues are affirmed."
6. The bare reading of this paragraph clearly indicates that other contentions in relation to the merits of the case were not raised. But in the face of grounds taken up in the memorandum of appeal, I find it very difficult to hold that application for additional evidence was not pressed and even if it was not pressed I have already indicated that the learned Court ought to have so recorded it on the order sheet or in the main judgment that the application was not pressed.
7. The Hon'ble Supreme Court of India in the case of A.I.R. 1991 S.C. 91 clearly held that an application for additional evidence must be disposed of, if not prior, simultaneously with the pronouncement of the final judgment in the case. The learned counsel for the appellant has also relied upon Shadi Lal v. Municipal Committee, Rewari, (1994-1)106 P,L.R. 633. I would prefer at this stage the observations made by Hon'ble Supreme Court, of India in the case of The Premier Automobiles Ltd., Bombay v. Kabirunissa and Ors., A.I.R. 1991 S.C. 91 where the Hon'ble Apex Court held as under:-
"We do not consider it appropriate to deal with them as, in our view the entire evidence led by the parties requires a fresh consideration by the Courts of facts. Accordingly, we allow the appeal, set aside the judgments of the appellate Court and the High Court, and remit the case to the appellate Court for a fresh decision in accordance with law. The Court will, in the first instance, hear and dispose of the application under Order 41 Rule 27, Civil Procedure Code and only thereafter take up the final hearing of the appeal."
8. The application of principle of waiver would not be applicable in the present case because the principle of waiver could hardly be applied where the interpretation of judicial record is concerned. The judicial record must speak for itself and no amount of inference can be permitted to substitute the order of the Court.
9. I am of the considered view that the learned 1st Appellate Court should have passed an order prior or atleast simultaneously at the time of pronouncement of the judgment on the merits of the case.
10. In view of the above circumstances and the view that I have taken above, I do not consider it necessary to discuss the merits of the present case. It would further avoid any prejudice to either of the parties. Resultantly, I accept this appeal and set aside the judgment and decree passed by the learned 1st Appellate Court dated 26.7.1997 on the limited ground afore-indicated. The learned 1st Appellate Court shall decide the application for additional evidence after hearing the parties in accordance with law subject to payment of Rs. 2,500/- as cost-to- costs being conditional.
11. It is argued by the learned counsel for the respondent that the appeal is incompetent in view of the provisions of Order 41 Rule 1 of the Code of Civil Procedure. According to him, the appellants were obliged to file afresh copy of the judgments and decree alongwith the present appeal. On the other hand, it is contended by the learned Counsel for the appellants that the delay in filing the appeal had been condoned, as such, the present objection is not sustainable.
12. I do not propose to discuss this issue any further because the delay was condoned keeping in view the peculiar facts and circumstances of the case to the effect that the original appeal filed in this Court had been misplaced alongwith the Court fee. Moreover, fresh Court fee has been paid and photo copies of the certified copy of the judgments and decree have been filed alongwith this paper book. Therefore, in the interest of justice, I entertain this appeal.
13. Parties are directed to appear before the learned 1st Appellate Court on 30.3.1999. If any of the parties does not appear before the learned 1st Appellate Court as per direction of this Court, the learned Court could be well within its right to proceed in accordance with law without serving any fresh notice upon the respective parties. I would request the learned 1st Appellate Court to dispose this appeal as expeditiously as possible in any case within 3 months from the date of receipt of the copy of this order.
14. Copy of the order be given dasti to both the learned Counsel for the parties.