HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY APPEAL SUIT No.2010 OF 1996, A.S.M.P. No.11504 OF 1996 IN A.S. No.2010 OF 1996 AND TRANSFER APPEAL SUIT No.1486 OF 2001 Date: 24-10-2014 Between:
APPEAL SUIT No.2010 OF 1996 Mullapudi Satyanarayana and another. - - - Appellants.
And Bobba Dharma Mohana Rao and three others. - - - Respondents.
TRANSFER APPEAL SUIT No.1486 OF 2001 Bonthu Krishnamma (Died) Bonthu Krishna Kumari and two others. - - - Appellants.
And Bobba Dharma Mohana Rao and five others. - - - Respondents.
This Court made the following:
HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY APPEAL SUIT No.2010 OF 1996, A.S.M.P. No.11504 OF 1996 IN A.S. No.2010 OF 1996 AND TRANSFER APPEAL SUIT No.1486 OF 2001 COMMON JUDGMENT:
The unsuccessful plaintiffs in Original Suit No.47 of 1985 on the file of the Court of Principal Subordinate Judge (Now, Principal Senior Civil Judge), Eluru (for short, ‘the trial Court’), West Godavari District, preferred this appeal challenging the decree and judgment, dated 08.05.1996, whereunder the suit filed by the plaintiffs for specific performance of agreement of sale, dated 16.10.1983 and alternative relief for refund of amount paid, was dismissed.
2. Whereas, the unsuccessful plaintiffs in Original Suit No.48 of 1985 on the file of trial Court preferred Appeal Suit No.84 of 1996 on the file of the Court of District Judge, Eluru, West Godavari District, was withdrawn by this Court to be heard along with A.S. No.2010 of 1996 vide orders in Tr.C.M.P. No.16 of 2001, dated 12.02.2001.
3. For convenience of reference, the ranks given to the parties in both the Original Suits will be adopted throughout this common judgment.
4. During pendency of Appeal Suit No.2010 of 1996, the Appeal Suit against defendants 2 and 4 was dismissed for default vide Court order dated 09.02.2010.
5. A.S.M.P. No.11504 of 1996 is filed by the petitioners - appellants in A.S. No.2010 of 1996 under Order XLI Rule 27 of C.P.C. to receive the documents set out in the list as additional evidence.
Hence, I am of the view that it is convenient to dispose of both the appeals and miscellaneous petition by way of this common judgment.
6. The case of the plaintiffs in O.S. No.47 of 1985 is that they filed the suit for specific performance of agreement of sale, dated 16.10.1983 and claimed alternative relief of refund of Rs.36,225/- (15,400+5,000+7,000+8,825) with interest at 12½% p.a., alleging that Bobba Venkateswara Rao, father of defendants 1 and 2, husband of 3rd defendant and son of 4th defendant, executed an agreement of sale, dated 16.10.1983, marked as Ex.A-1, in favour of the plaintiffs, agreeing to sell the schedule property for Rs.38,685/- for discharge of his debts. On the date of agreement, the said Venkateswara Rao received an amount of Rs.7,000/- as advance of sale consideration and put the plaintiffs in possession of schedule property. It is further agreed that the plaintiffs have to discharge the debts to a tune of Rs.15,400/- to Co-operative Society of Ramannagudem, Rs.5,000/- to Co-operative Agricultural Development Bank, Chintalapudi and electricity consumption charges to the Electricity Department, out of the sale consideration payable to the vendor of the plaintiffs. After execution of agreement of sale, the plaintiffs expressing their readiness and willingness requested Venkateswara Rao to accompany the plaintiffs to his creditors for payment of debts due to them, the said Venkateswara Rao expressed his inability to accompany them and undertake journey due to his ill-health, for discharge of the debts due to various creditors referred supra.
7. The plaintiffs thereafter paid Rs.15,400/- to the Co-operative Society, Ramannagudem, Rs.5,000/- to the Co-operative Agricultural Development Bank, Chintalpudi as agreed in the agreement of sale and ready and willing to pay Rs.11,285/- to Venkateswara Rao, he died due to ill-health. Thereafter, the plaintiffs expressed their readiness and willingness to pay balance sale consideration of Rs.11,285/- to defendants 1 to 4, but they did not co-operate for execution of registered sale deed. Thereupon, the plaintiffs got issued a legal notice, dated 08.04.1985, marked as Ex.A-2, calling upon them to execute registered sale deed by receiving balance sale consideration. But, the notices were returned with an endorsement ‘refused’.
8. The plaintiffs also paid Rs.8,825/- towards full satisfaction of decree debt in O.S. No.322 of 1972 on the file of the District Munsif Court, Tadepalligudem, to protect the schedule property from being sold in Court auction. Thus, the plaintiffs paid major part of sale consideration and the amount due to the plaintiffs towards balance of sale consideration is meagre and that they were ready and willing to perform their part of obligation under the agreement of sale, prayed to pass a decree directing the defendants, who are the legal heirs of the deceased Venkateswara Rao, to execute registered sale deed in their favour and in alternative to refund advance sale consideration and the debts discharged by the plaintiffs to a tune of Rs.36,225/-, together with interest at 12½% p.a.
9. Whereas, the case of plaintiffs in O.S. No.48 of 1985 is that they filed the suit for specific performance of agreement of sale, dated 16.10.1983 and claimed alternative relief of refund of advance sale consideration of Rs.2,000/- with interest at 12½% p.a., alleging that Bobba Venkateswara Rao, father of defendants 1 and 2, husband of 3rd defendant and son of 4th defendant, executed an agreement of sale, dated 16.10.1983 in favour of 1st plaintiff’s son and 2nd plaintiff’s husband, Bonthu Satyanarayana, agreeing to sell the schedule property consisting an extent of Ac.2.47 cents in Survey No.40/1 and an extent of Ac.2.45 cents in Survey No.33 (total extent being Ac.4.92 cents) for sale consideration of Rs.26,320/-, for discharging the debts of Venkateswara Rao. On the date of agreement, the said Venkateswara Rao received Rs.2,000/- as advance of sale consideration, delivered possession of the schedule property to Satyanarayana. It is further agreed that Satyanarayana has to discharge the debts mentioned in the agreement of sale i.e., an amount of Rs.16,000/- to Andhra Bank and an amount of Rs.8,320/- to Land Mortgage Bank. The suit schedule property along with some other property, ancestral property of Venkateswara Rao, was partitioned from his brother vide registered partition deed dated 25.07.1955. Few months after execution of agreement of sale, Venkateswara Rao died and, thereafter, Satyanarayana approached defendants 1 to 4 and requested them to execute registered sale deed, and, thereafter approached Andhra Bank, to ascertain the balance of amount payable; but the Bank officials asked Satyanarayana to come with the legal heirs of Venkateswara Rao, who alone should be given back the original documents of title and, in the meanwhile, Satyanarayana, being in possession of the schedule property died and, later, though the plaintiffs, in the agreement of sale with possession, being the legal heirs of Satyanarayana, willing to pay balance of sale consideration, defendants, who are bound to execute registered sale deed in favour of the plaintiffs, failed to do so. It is also contended that on 16.10.1983 late Venkateswara Rao also executed another agreement of sale in respect of Ac.4-83½ cents near the land mentioned in the suit schedule property to others; late Venkateswara Rao did not execute sale deed in favour of Mullapudi Satyanarayana and Yelamarthi Venkata Krishna Rao, plaintiffs in O.S. No.47 of 1985. Satyanarayana, during his life time, requested the defendants to execute registered sale deed offering to pay balance of sale consideration, but the defendants failed to co-operate for the same. Hence, the plaintiffs got issued a legal notice on 08.04.1985, marked as Ex.A-2, calling upon them to co-operate with plaintiffs and execute sale deed in their favour. The defendants being the legal heirs of Venkateswara Rao, under the Hindu Succession Act, 1956 bound by the agreement of sale and execute sale deed in favour of the plaintiffs, refused to receive the notice and execute sale deed. Hence, the plaintiffs prayed to grant the relief of specific performance of agreement of sale alternatively for refund of advance of sale consideration of Rs.2,000/- with interest at 12½% p.a.
10. Defendants 1 and 3 in both the suits filed written statements, separately. Defendants 2 and 4 in O.S. No.47 of 1985 and defendants 2 and 5 in O.S. No.48 of 1985 filed memos adopting the written statement of 1st defendant, respectively, admitting the relationship with Venkateswara Rao, denied material allegations of the plaint, inter-alia, contending that:
a) The plaintiffs are not entitled to the relief of specific performance against the 1st defendant as the alleged agreements of sale, dated 16.10.1983, are not valid and the schedule property is the joint family property of Venkateswara Rao and his children. The proposed sale by Venkateswara Rao, who was suffering from T.B., is neither for the benefit of joint family nor for the benefit of his minor son, 1st defendant. Therefore, the sale in both the suits is not binding on the defendants;
b) The father of the defendants Venkateswara Rao indebted to several creditors and those debts were contracted for immoral activities and they all are avyavaharika debts; thereby, the sale of undivided share of the minor in the joint family is not valid and would not bind the minor children of Venkateswrara Rao. On this ground also the alleged agreements of sale are not enforceable under law;
c) It is further contended that the income was sufficient for maintenance of the joint family and the subject land is fit for cultivation of paddy and the father of defendants 1 and 2 used to get huge profits on agriculture, thereby there is no need to discharge the debts, if any, contacted by Venkateswara Rao;
d) The defendants in each suit contend that the suit agreement executed in other suit is a rank forged document. The father of the defendants, Venkateswara Rao, never executed any agreement of sale in favour of the plaintiffs in O.S. No.47 of 1985 or in favour of son of 1st plaintiff and husband of the 2nd plaintiff in O.S. No.48 of 1985, who are close relatives; the alleged agreements are concocted or brought into existence in collusion with the attestors and the village Karanam of Challa Chintalapudi to grab the joint family property of the 1st defendant and his father taking advantage of the vices of his father, such as drinking, gambling, etc., On this ground also both the suits are liable for dismissal; and
e) The suit schedule property in each suit is the joint family property and sold the joint undivided interest of the defendants without obtaining permission from the District Court under Hindu Minority and Guardianship Act, 1956; thereby, the sales are not valid and binding on the defendants. As such, the suit agreements are not enforceable under law. The defendants subsequently denied execution of agreements of sale, receipt of advance sale considerations on the date of execution of agreements, so also discharge of debts due to Co- operative Society, Ramannagudem and Co-operative Agricultural Development Bank, Chintalapudi, Andhra Bank, Land Mortgage Bank and other creditors, that the agreements of sale are forged and, finally, prayed to dismiss the suits.
11. An additional written statement in O.S. No.48 of 1985 has been filed by the 1st defendant, after impleadment of defendants 5 and 6, Andhra Bank and Land Mortgage Bank, Chintalapudi, who are the creditors of father of defendants 1 to 4, reiterating that the alleged agreement therein is a brought up document to grab the landed properties of defendants and the suit is bad for misjoinder.
12. 5th defendant, Andhra Bank, filed the written statement stating that they have filed a Suit in O.S. No.30 of 1976, which was decreed against Bobba Venkateswara Rao, who was due to pay Rs.16,713-11 paisa and prayed for payment of amount from out of the sale consideration. 6th defendant remained absent and was set ex-parte.
13. Basing on the above pleadings, the trial Court framed issues 1 and 2 in O.S. No.47 of 1985 and the remaining 8 issues in O.S. No.48 of 1985:
1. Whether the alleged agreement of sale is true, valid and binding on the defendants?
2. To what relief?
3. Whether the suit agreement is true, valid and binding on the defendants?
4. Whether the first defendant was a major by the date of alleged agreement of sale?
5. Whether the father of the first defendant was entitled to execute the alleged agreement of sale in respect of his share in the joint family property of the first defendant?
6. Whether the possession of the suit land was delivered to the vendee under the alleged suit agreement?
7. Whether the plaintiffs have got any cause of action against the defendants?
8. Whether the suit is bad for misjoinder of parties?
9. Whether the defendants 5 and 6 are the necessary and proper parties to the suit?
10. To what relief?
14. During course of separate trial, on behalf of the plaintiffs in O.S. No.47 of 1985, PWs.1 to 4 were examined, marked Exs.A.1 to A.11 and on behalf of the defendants, DWs.1 to 4 were examined and marked Ex.B.1; whereas, on behalf of the plaintiffs in O.S. No.48 of 1985, PWs.1 to 4 were examined and Exs.A-1 to A-6 were marked and on behalf of the defendants DWs.1 to 4 were examined and Exs.B-1 was marked.
15. Upon hearing argument of both the counsel, considering oral and documentary evidence available on record, the trial Court dismissed both the suits in toto holding that the plaintiffs failed to establish execution of alleged agreements of sale by Bobba Venkateswara Rao, father of defendants 1 and 2, husband of 3rd defendant and son of 4th defendant and also failed to prove payment of advance of sale consideration and discharged the other debts of Venkateswara Rao.
16. Aggrieved by the decree and judgment passed by the trial Court in O.S. No.47 of 1985, the unsuccessful plaintiffs preferred the Appeal Suit No.2010 of 1996 before this Court; whereas, the unsuccessful plaintiffs in O.S. No.48 of 1985 preferred Appeal Suit No.84 of 1996 on the file of the Court of District Judge, Eluru, West Godavari District, which is withdrawn by this Court to be heard along with A.S. No.2010 of 1996 vide orders in Tr.C.M.P. No.16 of 2001, dated 12.02.2001.
17. Since common questions are involved in both these appeals, this Court heard the appeals together. The grounds urged in both the Appeals are almost identical; therefore, to avoid repetition of grounds in both the appeals, this Court feels it appropriate to refer the following common contentions in both the appeals:
a) The finding of the trial Court that the documents are fabricated or concocted is not based on any specific plea raised by the defendants in the written statements, but the trial Court totally came to different conclusion than the defence set up by the defendants in each suit, which is an error apparent on the face of the record;
b) The trial Court ignored evidence of the scribe and attestors of the documents and disbelieved execution of the documents and that when consideration was paid in terms of agreements of sale, more particularly, by discharge of the debts due to Co-operative Society, Ramannagudem and Co-operative Agricultural Development Bank, Chintalapudi, Andhra Bank, Land Mortgage Bank and other creditors , the purpose of sale must be for the benefit of the joint family, thereby the agreements are binding on the members of the joint family, but the trial Court did not consider the said aspect in proper perspective and the conclusions of trial Court the document in each suit is fabricated and concocted document without any basis and committed an error;
c) The plaintiffs in each suit discharged various debts of Venkateswara Rao, as per the terms of agreements of sale, including payment of advance sale consideration to Venkateswara Rao, father of the defendants 1 and 2, but the trial Court disbelieved discharge of these debts to various creditors of Venkateswara Rao, and without framing any issue denied the alternative relief for refund of advance amount and other debts of Venkateswara Rao discharged by the plaintiffs without any reason and committed an error. Finally, prayed to allow both the appeals setting aside the decrees and judgments and pass decrees in favour of the plaintiffs.
18. During pendency of the appeal in A.S. No.2010 of 1996, the appellants filed a petition in A.S.M.P. No.11504 of 1996 under Order XLI Rule 27 of C.P.C. to receive the documents set out in the list, as additional evidence, alleging that the plaintiffs discharged the loan due to the Co-operative Society, Ramannagudem and Co-operative Agricultural Development Bank, Chintalapudi, besides discharge of decree debt in O.S. No.322 of 1972 on the file of District Munsif Court, Tadepalligudem, but those documents could not be produced before the trial Court to prove the claim for refund of the amount by way of alternative relief, but produced only Ex.A.7 evidencing payment of Rs.8,825/- in O.S. No.47 of 1985. Failure to produce the documents set out in the list is only due to oversight. Thus, there is no wilful negligence on the part of the plaintiffs in producing the documents, before the trial Court, which are necessary to substantiate the claim for refund of amount paid in pursuance of the agreements to the Co- operative Society, Ramannagudem and Co-operative Agricultural Development Bank, Chitalapudi.
19. The defendants - respondents though did not any file counter- affidavit opposed the petition, during hearing argued that the reasons mentioned in the affidavit are not sufficient to condone the delay in filing the documents before the trial Court and to receive them as additional evidence, at this stage.
20. During course of argument, learned counsel for the plaintiffs – appellants mainly contended that the finding recorded by the trial Court that the alleged agreement in each suit is concocted or fabricated, is not based on the specific plea raised by the defendants in their written statement since the defendants contended that the alleged agreement in each suit is a rank forged document. Hence, the findings of the trial Court are erroneous. It is further contended that the trial Court did not frame any issue regarding entitlement to claim alternative relief for refund of Rs.36,225/- in O.S. No.47 of 1985 and Rs.2,000/- advance sale consideration in O.S. No.48 of 1985, respectively, in the event the plaintiffs are not entitled to the primary relief of specific performance. Thereby, the plaintiffs were not called upon to prove the payments made by them in pursuance of the agreements of sale i.e., discharge of debts including the decree debt etc., and the trial Court committed a serious error in dismissing the suits. If really, an issue is framed regarding alternative relief, the plaintiffs would have produced the documents set out in the list filed along with A.S.M.P. No.11504 of 1996. Therefore, there was no obligation on the part of the plaintiffs to produce these documents before the trial Court since they were not called upon to prove the alleged payment made to Co-operative Society, Ramannagudem and Co-operative Agricultural Development Bank, Chintalapudi, decree debt in O.S. No.322 of 1972, etc., Hence, these documents are necessary for deciding the real controversy between the parties.
21. Per contra, learned counsel for the defendants – respondents contended that the agreements of sale are ex-facie fabricated documents taking advantage of the signed stamp papers of Venkateswara Rao by the plaintiffs in both the suits, who are also close relatives, in collusion with the scribe and attestors. Therefore, the agreements are not enforceable under law since they are fabricated documents and supported the findings recorded by the trial Court in toto. It is also contended that the documents produced along with
A.S.M.P. No.11504 of 1996 cannot be received as additional evidence, at this stage, since the reason assigned by the plaintiffs in the affidavit is not covered by Order XLI Rule 27 (1)(a) or (a)(a) of C.P.C. and prayed for dismissal of both the appeals and miscellaneous petition.
22. Considering rival contentions, perusing oral and documentary evidence available on record, the decrees and judgments under challenge, the points that arise for consideration in both the Appeals are:
1. Whether the documents set out in the list in A.S.M.P. No.11504 of 1996 be received as additional evidence and marked as exhibits on behalf of the plaintiffs?
2. Whether the finding of trial Court that Ex.A.1, dated 16.10.1983, in each suit is based on any specific plea set up by the defendants in the written statements? If not, the plaintiffs are entitled for the relief of specific performance?
3. Whether the plaintiffs in O.S. No.47 of 1985 paid an amount of Rs.36,225/-, and plaintiffs in O.S. No.48 of 1985 paid Rs.2,000/- as advance of sale consideration in terms of the alleged agreements of sale? If so, are they entitled to recover the same with interest, in the event the plaintiffs are not entitled to claim the primary relief of specific performance?
23. POINT No.1: Both the suits are filed for the primary relief of specific performance of agreements of sale contending that the plaintiffs in O.S. No.47 of 1985 paid advance sale consideration of Rs.7,000/- on the date of execution of Ex.A.1 and the remaining amount on different occasions in Co-operative Society, Ramannagudem and Co-operative Agricultural Development Bank, Chintalapudi, discharge of decree debt in O.S. No.322 of 1972, in total Rs.36,225/- and that the plaintiffs in O.S. No.48 of 1985 paid an amount of Rs.2,000/- on execution of agreement of sale, and claimed refund of the said amount together with interest, in case the Court finds that they are not entitled to claim the primary relief of specific performance of agreements of sale.
24. The defendants in their written statements denied the very execution of agreements of sale by Venkateswara Rao, while contending that they are rank forged documents, denied even receipt of any amount as advance of sale consideration; so also discharge of the debts due to Co-operative Society, Ramannagudem, Co-operative Agricultural Development Bank, Chitalapudi and discharge of decree debt in O.S. No.322 of 1972.
25. When a specific fact or law is affirmed by one party and denied by the other, the Court is bound to frame an issue in view of the Order XIV Rule 1 of C.P.C. Here, the fact affirmed by the plaintiffs in O.S. No.47 of 1985 is payment of advance sale consideration of Rs.7,000/- under Ex.A.1, payment of Rs.15,400/- to the Co-operative Society, Ramannagudem, Rs.5,000/- to the Co-operative Agricultural Development Bank, Chintalapudi and Rs.8,825/- towards discharge of decree debt in O.S. No.322 of 1972 and payment of advance sale consideration of Rs.2,000/- in O.S. No.48 of 1985. Whereas, the defendants specifically denied those payments, but strangely the trial Court did not frame any issue basing on the fact affirmed by the plaintiffs and denied by the defendants pertaining to the alternative relief of refund of advance sale consideration. Thus, on account of failure to frame an issue, the plaintiffs need not prove the payments made to Co-operative Society, Ramannagudem, Co-operative Agricultural Development Bank, Chitalapudi and payment of amount to the Decree Holder in O.S. No.322 of 1972 on the file of the District Munsif Court, Tadepalligudem in O.S. No.47 of 1985 by producing any documentary evidence and advance sale consideration of Rs.2,000/- in O.S. No.48 of 1985. Though the plaintiffs in O.S. No.47 of 1985 are required to establish the subsequent payments while claiming relief of specific performance to establish their bona-fides and to prove their readiness and willingness, strictly adhering to Section 16(c) of the Specific Relief Act, 1963, but due to oversight they could not produce the documents set out in the list herein, before the trial Court, so as to enable the trial Court to pass a decree for alternative relief of refund of amounts referred supra.
26. Order XLI Rule 27 Clause (1) of C.P.C. permits the Appellate Court to receive additional evidence only in three circumstances; which are (a) when the trial Court refused to admit the evidence which ought to have been admitted when produced before the trial Court, or (aa) the parties seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (3) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.
27. Here, the reason for non-production of documents is by oversight as per the allegations made in the affidavit. However, during argument, it is contended by the learned counsel for the plaintiffs - appellants that when no issue is framed regarding entitlement to claim alternative relief of refund of amount, calling upon the plaintiffs to prove the payments pleaded by them in the plaint, there is no obligation on the part of the plaintiffs to produce the documents. Admittedly, no issue was framed to grant or deny the alternative relief of refund of an amount of Rs.36,225/- and advance sale consideration of Rs.2,000/- in each suit; in such case, the plaintiffs need not produce any document evidencing payment of amount to Co-operative Society, Ramannagudem, Co-operative Agricultural Development Bank, Chintalapudi, though they are required to establish readiness and willingness under Section 16(c) of the Specific Relief Act. The reason assigned by the plaintiffs is not covered by Order XLI Rule 27(1)(a) or (aa) of C.P.C., but to do substantial justice and for effective adjudication of the matters, the documents are required by this Court under Clause (b) of Sub-Rule (1) of Order XLI Rule 27 C.P.C. The word ‘for any other substantial cause’ cannot be extended to any extent, however, in the peculiar circumstances of this question i.e., for failure to frame an issue regarding alternative relief calling upon the plaintiffs to prove the payments pleaded by them, I am of the view that the present cause shown by the plaintiffs in their affidavit and argued before this Court is covered by Clause (b). Hence, I find that it is a fit case to receive the documents set out in the list as additional evidence, as those documents are relevant to grant or decline the alternative relief for refund of Rs.36,225/- in O.S. No.47 of 1985.
28. The procedure for taking additional evidence is contemplated under Order XLI Rule 28 C.P.C. and according to it, wherever additional evidence is produced, the Appellate Court may either take such evidence, or direct the Court from whom decree the appeal is preferred, or any other Subordinate Court, to take such evidence and to send it when taken to the Appellate Court. Thus, it means Appellate Court shall record evidence to mark the documents or in the alternative, send the matters to the trial Court. The learned counsel for the plaintiffs – appellants requested this Court to mark them as exhibits by consent. The normal procedure for marking documents under the Indian Evidence Act, 1872 is producing the documents by any person in custody, in his evidence; as such, the documents shall be marked only through a witness while recording the evidence of any witness. Marking a document by consent is not contemplated either under the Rules in C.P.C. or in the Rules under the Evidence Act. But, there is a stray observation in Para 11 of the judgment in Raj Kumar Vs. Ajay
[1]
Kumar , the Apex Court while deciding the claim under the Motor
Vehicles Act, 1988, it is held that the Tribunals must be pro active and mark the documents by consent. But, this is not based on any rules either in C.P.C. or under the Evidence Act, or in the Motor Vehicles Act. In any view of the matter, the proceedings under the Motor Vehicles Act are summary in nature and the rules of evidence to be followed in summary proceedings, cannot be applied in the civil suits or appeals. Therefore, the documents cannot be marked by consent; as such marking by consent is not contemplated in any law.
29. Hence, I am unable to accede to the request of learned counsel for the plaintiffs – appellants to mark the documents by consent, as the alternative procedure to be followed is to direct the trial Court to record evidence, mark the documents by summoning any witness as contemplated under Rule XLI Rule 28 C.P.C.
30. In view of my foregoing discussion, the A.S.M.P. No.11504 of 1996 is ordered. Accordingly, the documents set out in the list as additional evidence before trial Court, exercising power conferred on this Court under Order XLI Rule 27 (1)(b) of C.P.C. while declining to mark them by consent in view of the bar under Order XLI Rule 28 of C.P.C.
31. POINT No.3: One of the reliefs claimed by the plaintiffs in O.S. No.47 of 1985 is for refund of Rs.36,225/- which represents advance of sale consideration of Rs.7,000/- paid under Ex.A.1 and Rs.15,000/- paid to the Co-operative Society, Ramannagudem, Rs.5,000/- paid to the Co-operative Agricultural Development Bank, Chitalapudi and Rs.8,000/- paid in discharge of the decree debt in O.S. No.322 of 1972 which is evidenced by Ex.A.7 and the plaintiffs in O.S. No.48 of 1985 claimed alternative relief of refund of Rs.2,000/- paid as advance of sale consideration. But, the trial Court did not frame any issue though the plaintiffs affirmed that they paid the above amount to different creditors referred above and denied by the defendants, subsequently in their written statements filed by defendants 1 and 2 which gives rise to an issue. When the trial Court did not frame any issue calling upon the parties to prove the material proposition of fact affirmed by one and denied by the other, the plaintiffs are not under an obligation to produce the documents to substantiate the claim for refund of Rs.36,225/- and Rs.2,000/- in each suit respectively.
32. According to order XIV Rule 5 C.P.C. the Court may at any time before passing a decree, amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matter in controversy between the parties shall be so made or framed; or strike out any issues that appear to it be wrongly framed or introduced. The trial Court did not exercise the power conferred on it under Order XIV Rule 5 C.P.C. But, strangely recorded a finding at the Para 22 of the judgment in O.S. No.47 of 1985 concluded that ‘till today the plaintiffs did not produce any proof of such payment’ and in Para 14, Sub-para (1) in Page 18 it was observed as follows:
“It is the case of the plaintiffs that they have never paid this amount to the Bank and cleared off these debts. Though the vendee had all the care to get an acknowledgment from the vendor for the entire amount having been paid by him under Ex.A-1 document he did not pay any amount in foot.”
33. These conclusions are erroneous, for the simple reason that though the material proposition of fact affirmed by the plaintiffs and denied by the defendants, the trial Court did not frame any issue calling upon them to prove the same and disprove such payment made by the plaintiffs in the event plaintiffs failed to establish the same. When the parties were not put to notice about the issue to be tried they are not expected to produce either oral or documentary evidence with regard to the particular relief, when no such issue is framed. Even if any documents are produced no knowledge is attributable to the parties about the issue or point to be decided by the Court during trial.
34. When the trial Court did not frame any issue but recorded a finding that the plaintiffs did not produce any evidence to prove payment of amount, such finding is totally contrary to Order XIV Rule 1 of C.P.C. on this ground alone the finding to the extent that the plaintiffs failed to prove payment of advance of sale consideration and various debts due to the creditors of Venkateswara Rao is liable to be set-aside; similarly, the finding in O.S. No.48 of 1985 regarding payment of advance of sale consideration.
35. According to Order XLI Rule 23 of C.P.C., the Appellate Court may, if it think fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with a direction to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence, if any, recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. Rule 23 deals with a situation where the suit was disposed of on the preliminary point but whereas Rule 23(A) deals with remand of case in other situations i.e., other than on a preliminary point. The procedure to be followed, even under Rule 23(A) is same as that of Rule 23 or Order XLI. A Cogent reading of Rule 23 and 23(A) it is clear that where a necessary issue is not framed, the Court may remand the matters directing the trial Court what issue or issues shall be framed tried with other consequential directions enunciated under Rule 23 in
[2]
Ramco Industries Vs. Lakshmeesha. M , wherein, it is held that
where a necessary issue is not framed and tried, the appellate Court can frame it and remand the matter for fresh trial.
36. According to Order XLI Rule 33 of C.P.C, the appellate Court is
[3]
vested with wide powers. In Parimal Vs. Veena @ Bharti , the Apex Court held as follows:
“First appellate Court should not disturb and interfere with the valuable rights of parties which stood crystallized by trial Court judgment without opening the whole case for re-hearing both on question of fact and law.”
37. In Mahadev Govind Gharje and others Vs. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi,
[4]
Karnataka , wherein the Apex Court held as follows:
“Appellate Court is vested with wide powers including framing of additional issues, permitting additional evidence, remanding the case, pronouncing judgment in accordance with law and even admit an appeal for re-hearing where the appeal was dismissed.”
38. By applying principle laid down in the above judgments of the Apex Court, I am of the view that the following issue is required to be decided by the trial Court in each suit after affording reasonable opportunity to both the parties to adduce evidence:
Issue in O.S. No.47 of 1985:
Whether the plaintiffs are entitled to claim alternative relief of recovery of Rs.36,225/- together with interest at 12½% p.a. in the event the Court finds that the plaintiffs are not entitled to the primary relief of specific performance?
Issue in O.S. No.48 of 1985:
Whether the plaintiffs are entitled to claim alternative relief of recovery of Rs.2,000/- together with interest 12½% p.a. in the event the Court finds that the plaintiffs are not entitled to the primary relief of specific performance?
39. Hence, I find that it is a fit case to remand both the matters to the trial Court exercising power under Rule 23(A) of Order XLI of C.P.C. by applying the principles laid down in the above judgment. Accordingly, the point is answered.
40. POINT No.2: In view of my finding on point 2, I myself refrain to record any finding on this point. Hence the point is not answered.
In the result, both the Appeal Suit 2010 of 1996 and Transfer Appeal Suit No.1486 of 2001 are disposed of. Accordingly, the decrees and judgments of the trial Court passed in O.S. Nos.47 and 48 of 1985 are hereby set-aside, while remanding the matters to the trial Court to decide its finding on the issue framed above in each suit, affording reasonable opportunity to both the parties to adduce evidence and mark the documents received by this Court as additional evidence, if they are admissible in evidence through a witness, if any, examined by the plaintiffs, readmit the suits under its original numbers in the Register of civil suits and proceed to determine the suits and dispose of the matters, as expeditiously as possible, preferably within a period of six (6) months from the date of receipt of a copy of this judgment.
In consequence, miscellaneous petitions, if any, pending in these appeals shall stand closed. There shall be no order as to costs.
M. SATYANARAYANA MURTHY, J Date: 24-10-2014.
Dsh/Mar.
HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY 207 APPEAL SUIT No.2010 OF 1996, A.S.M.P. No.11504 OF 1996 IN A.S. No.2010 OF 1996 AND TRANSFER APPEAL SUIT No.1486 OF 2001 Date.24-10-2014 DSH 19112014
[1] 2011 ACJ 1
[2] 2003 (4) CLT 17 (SC)
[3] 2011 (2) ALT 33 (SC)
[4] 2011 (3) CCC 575 (SC)