Gurmail Kaur vs Harbhajan Singh and Another

V.K. Jhanji, J.—This is defendant''s second appeal directed against the Judgment and decree of the Courts below whereby suit of the plaintiffs (respondents herein) seeking decree for specific performance of agreement to sell dated 30.05.1990 in respect of land measuring 17 Bighas 2 Biswas, has been decreed.

Plaintiffs filed suit claiming decree of specific performance of agreement to sell dated 30.05.1990 on the allegation that they have always been ready and willing to perform their part of the agreement, but the defendant failed to execute . the sale deed despite having received Rs. 1,00,000/- as earnest money against the total consideration of Rs. 1,19,700/-. Upon contest, defendant denied the allegation of the plaintiffs and contended that the agreement in question is a forged and fictitious document. She also contended that the decree on the basis of which she became the owner of the suit land, has been set aside in Civil Suit No. 146 dated 18.05.1985 and therefore, she is not competent to execute the sale-deed in favour of the plaintiffs. On the pleadings of the parties, the trial Court framed the following issues:-

Whether the defendant executed the agreement to sell dated 30.05.1990 in favour of the plaintiff? OPP.

If issue No. 1 is proved, whether the agreement is forged, fabricated and without consideration? OPD.

Whether the plaintiff always remained ready and willing to perform his part of the agreement? OPD.

Whether the decree in favour of the defendant was set aside vide Judgment dated 26.2.1986? If so, to what effect? OPD.

Whether the plaintiff is entitled to decree of specific performance of, the contract? OPP.

Whether the plaintiff is entitled to recover, the amount of Rs. 2,00,000/- from the defendant by way of alternative relief? OPP.

Relief.

On the basis of evidence brought on record by the parties, trial Court decided all the issues in favour of plaintiffs and against the defendant and in the result, decreed the suit. Defendant preferred first appeal before the Additional District Judge, who dismissed the same, thereby affirming the Judgment and decree of the trial Court. Hence, this second appeal by the defendant.

In this second appeal, learned counsel appearing on behalf of defendant has contended that the Judgment of the first appellate Court is not sustainable in law inasmuch as it is a non-speaking Judgment. It is contended that the learned Additional District Judge has not dealt with any issue and it cannot be detected from the Judgment passed in appeal as to how the learned Additional District Judge has dealt with the issues involved in the case. It is contended that the Judgment of the Additional District Judge deserves to be set aside on this ground alone. Against this, it is contended by learned counsel appearing on behalf of plaintiffs that the first appellate Court while affirming the Judgment and decree is not required to give a detailed Judgment.

After hearing the learned counsel for the parties and going through the record, I am of the view that the Judgment of the Additional District Judge is not sustainable in law. A reading of the reasoning recorded by the learned Additional District Judge clearly shows that he has omitted to notice the issues and to record finding thereon. The Judgment gives no indication that oral and documentary evidence adduced in the case was taken into consideration by the Additional District Judge while upholding the Judgment of the trial Court. First appellate Court being a final Court of fact is expected to give a well reasoned Judgment because the parties to the suit are entitled to the benefit of proper discussion of the material on record based on correct view of law applicable to them. In this case, first appellate court while affirming the Judgment of the trial Court has failed to discuss the evidence adduced by the parties to the suit. In my view, the Judgment of the first appellate Court is no Judgment in the eyes of law.

Consequently, the appeal is allowed, Judgment and decree of the first appellate Court is set aside and appeal remanded to the Court of District Judge, Sangrur, for decision afresh on merits. The learned District Judge may decide the appeal either himself or entrust it to any other Additional District Judge competent to hear the same. Appeal shall be decided within one month from the date of appearance of the parties. No costs.

Parties through their counsel are directed to appear before the District Judge, Sangrur on 30.8.1990.