Km. Anju Rekhi vs Smt. Sunita Rekhi & Others

Lok Pal Singh, J

1) Present A.O. is directed against the judgment and order dated 26.10.2017, passed by Addl. District Judge, Ranikhet, District Almora, in Civil Appeal no. 13 of 2016, whereby said court has allowed / decreed the appeal of respondent no. 1 and set aside the order dated 04.04.2016, passed by civil Judge (Senior Division), Almora and remanded the matter to the trial court with a direction to decide the same on merits in pursuance to the observation made in the impugned judgment dated 26.10.2017.

2) As per plaint averments, respondent no. 1 / plaintiff is a partner in a Firm namely 'West View Hotel' (hereinafter referred to as the 'Firm'). Plaintiff and defendant are closely related to each other as the plaintiff is daughter-in-law of the defendant. An agreement of partnership between the parties was executed on 22.10.1975 at New Delhi. Respondent no. 1 / plaintiff had 40% share in the profit of the Firm and rest of the share i.e. 60% was of Mrs. Kushal Rekhi (original defendant). It is the case of respondent no. 1 / plaintiff that the Firm was run by both the partners till 31.12.1986 amicably. Thereafter, Mrs. Kushal Rekhi completely usurped the business of the Firm and did not allow the respondent no. 1/ plaintiff to take part in the conduct of business. In order to achiever her personal gain, Mrs. Kushal Rekhi further forged the signature of the respondent no. 1 on a letter dated 01.06.1987 written by her to the Manager, State Bank of India, Ranikhet that the partnership of the Firm stands dissolved. When the things get worse and it was difficult to carry on the business of the Firm, respondent no. 1 / plaintiff was constrained to prefer a suit, being O.S. no. 2349 of 1989, for dissolution of partnership firm and rendition of account seeking following reliefs:

i) The partnership between the parties i.e. plaintiff and defendant be dissolved by a preliminary decree.

ii) A Commissioner for accounts may be appointed and accounts be taken and after settlement of accounts, final decree be passed in favour of the plaintiff for such sum as the plaintiff might be found entitled to,

iii) Receiver may be appointed to take charge of the partnership business and assets and to maintain accounts.

In the alternative, restrain order may be passed directing the defendant not to prevent the plaintiff from taking part in the conduct of business and examine accounts or the plaintiff may be allowed to run the business in 40% of the premises which are in the tenancy of the partnership.

iv) Costs of the suit may also be awarded to the plaintiff.

3) Mrs. Kushal Rekhi (original defendant) filed her written statement on 10.05.2001. In her written statement, she alleged that the plaintiff was admitted to the partnership only for the tax adjustment and remissions and other benefits under the Income Tax Act and, therefore, not entitled for any profit in the Firm. Mrs. Kushal Rekhi ried on 31.10.2003 and Mr. Ashok Rekhi, Mr. Rajinder Rekhi, Mrs. Chandra Bhasin, Mr. Sunit Rekhi and Smt. Anju Rekhi, being legal heirs of late Smt. Kushal Rekhi, were impleaded as defendants. Mr. Ashok Rekhi, Mr. Rajinder Rekhi and Mrs. Chandra Bhasin were subsequently transposed as plaintiff as they were supporting the case of respondent no. 1/ plaintiff. Rest of the defendants filed their written statement. Mrs. Anju Rekhi (appellant herein) filed her written statement alleging that the Firm was dissolved in the year 1987 and a fresh partnership was created between Mrs. Kushal Rekhi (60% share) and Mrs. Anju Rekhi (40% share).

4) On the basis of pleadings of the parties, following issues were framed in the suit:

i) Whether there was any partnership agreement between the plaintiff and the defendant?

ii) Whether the partnership firm got dissolved on 01.06.1987?

iii) Whether the plaintiff is entitled to get rendition of account?

iv) Whether the suit is not property valued and court fee paid is insufficient?

v) to what relief, is any, is the plaintiff entitled?

vi) Whether the suit of the plaintiff is barred by non-joinder of necessary parties. If yes, its effect?

vii) Whether the court has no jurisdiction to entertain the above mentioned suit?

5) Plaintiff examined herself as PW1; Mr. Ashok Rekhi as PW2; Mr. Mrs. Chandra Bhasin as PW3 and Mr. S.L. Mukhi as PW4. On behalf of the defendant Km. Anju Rekhi was examined as DW1.

6) After recording the evidence and hearing the parties, the trial court (Civil Judge, Almora) vide judgment and decree dated 22.05.2012 recorded the finding on issue no. (i) in favour of the plaintiff holding that the plaintiff has been successful in proving that there was a partnership agreement executed between the plaintiff and defendant Mrs. Kushal Rekhi. While deciding issue no. (ii), the trial court held that the firm got dissolved on 01.06.1987. Rest of the issues were decided against the plaintiff and in favour of the defendants on the ground that since the firm had been dissolved on 01.06.1987, the plaintiff is not entitled for any relief as claimed by her in the plaint.

7) Feeling aggrieved by said order, respondent no. 1 / plaintiff preferred an appeal, being Civil Appeal no. 16 of 2012, before the Addl. District Judge, Ranikhet, Almora. Learned Addl. District Judge having heard learned counsel for the parties and after perusing the material brought on record arrived at the finding that the firm stood dissolved on 31.10.2003 during the pendency of the suit on account of death of Mrs. Kushal Rekhi. It was also held that the dissolution of the firm and effect of dissolution are two different things. After dissolution of the firm, the right and responsibility of each of the partner are mentioned in Section 45 to 53 and 55 of the Indian partnership Act, 1932 and admittedly no proceedings of winding up of the firm has been initiated. Therefore, as per the provisions of Indian partnership Act, Km. Anju Rakhi is liable to give the account of the firm and profit share to the plaintiff of the dissolved firm w.e.f. 22.07.1987 till dissolution of the firm. However, the prayer no. (iii) in record to appointment of the Court Receiver was disallowed, on the ground that after dissolution of the firm, there is no justification for the relief of granting permission to appoint Receiver to run the said firm. Consequently, the civil appeal was partly allowed vide judgment and order dated 11.12.2014. The judgment and decree passed in civil suit no. 02 of 1990, Smt. Sunita Rekhi and others vs Smt. Kushal Rekhi and others, in respect of relief (ii) sought in the plaint, i.e., for rendition of accounts of firm / business and granting of profit share is set aside and in respect of relief no. (iii), the suit of the plaintiff is decreed with costs. The judgment regarding dissolution of firm and for appointment of Receiver is upheld. The trial court was directed for passing a preliminary decree in favour of the plaintiff and against the defendant no. ½ Km. Anju Rekhi under the relevant Act for granting rendition of accounts. It was also directed that after the preparation of preliminary decree, proceedings for final decree be made for granting profit share to the plaintiff after getting the accounts. The appellant / plaintiff was directed to pay the court fee on the account of actual profit share at the stage of final decree. Lastly, the parties to the suit were directed to appear before the lower court on 02.02.2015.

8) After remand of the matter, the plaintiff / respondent no. 1 appeared before the trial court. It was argued that since prayers (i) and (ii) of the plaint were allowed, Court Commissioner be appointed for preparation of accounts and after settlement of accounts final decree be passed in favour of the plaintiff along with interest. Learned trial court without considering the provisions of Indian Partnership Act and CPC, in total disregard to the directions given by the First Appellate Court directed the appellant Ms. Anju Rekhi to file the statement of accounts. On the basis of statement of accounts filed by the appellant, the final decree was passed by the trial court directing the defendant / appellant to pay Rs.14,25,289/- to the plaintiff / respondent no. 1 vide order dated 04.04.2016.

9) Since the judgment and decree dated 11.12.2014 passed by the First Appellate Court was not executed, feeling aggrieved the plaintiff / respondent no. 1 preferred Civil Appeal no. 13 of 2016, Smt. Sunita Rekhi vs Smt. Anju Rekhi and others. The First Appellate Court vide judgment and order dated 26.10.2017, allowed the appeal; set aside the judgment and order dated 04.04.2016, passed by the trial court and remanded the matter back directing the trial court to prepare the final decree in view of the judgment and decree dated 11.12.2014.

10) Feeling aggrieved by the impugned judgment and order dated 26.10.2017, the plaintiff / respondent no. 1 has preferred the present appeal.

11) Heard learned counsel for the parties and perused the papers brought on record.

12) Indisputably, the judgment and decree dated 11.12.2014 passed by the First Appellate Court in Civil Appeal no. 16 of 2012 has attained finality, as the said order has not been challenged by the appellant.

13) Vide judgment and decree dated 11.12.2014 the trial court was directed to prepare the final decree, but instead of preparing the final decree in view of the preliminary decree as modified by the First Appellate Court vide its judgment and decree dated 11.12.2014, the trial court in a cryptic and cursory manner passed the order dated 04.04.2016 directing that the plaintiff / respondent no. 1 would be entitled of an amount of Rs.14,25,289/-. However, the decree as passed by the First Appellate Court affirming the remaining part of the trial court's decree has not been considered. A perusal of the trial court's order would reveal that it is not merely a cryptic and unreasoned order but, in fact, final decree has not been prepared pursuant to the preliminary decree modified by the First Appellate Court, which has attained finality between the parties.

14) First Appellate Court vide impugned judgment and order dated 26.10.2017 has recorded categorical findings that in view of the provisions contained in Order 20 Rule 16 of CPC and in view of the judgment and decree passed by the First Appellate Court, the plaintiff/decree holder was entitled to get the rendition of account as the decree of rendition of accounts has attained finality. Having observed the provisions of Order 20 Rule 16 of CPC and having considered that the decree has attained finality, the First Appellate Court also found that the Executing Court at the time of preparing the final decree has committed illegality in non-granting the profit share of the plaintiff / decree holder and further the trial court has not appointed the Court Commissioner as per the dictum of the First Appellate Court and in a cryptic manner has held that since the firm had been dissolved on 01.06.1987, the plaintiff is not entitled for any relief as claimed by her in the plaint. The First Appellate Court found it appropriate that since the trial court at the time of passing the final decree has not considered the preliminary decree, as modified by the First Appellate Court, set aside the findings recorded by the trial court and remanded the matter to the court below to prepare the final decree in pursuance of the judgment and decree passed by the First Appellate Court.

15) Learned counsel for the appellant would submit that the partnership firm was dissolved, therefore, the trial court declined to grant a decree of rendition of accounts. He would further submit that since the partnership firm was dissolved, therefore, there should not be any rendition of account thereafter. Thus, the trial court has rightly passed the order dated 04.04.2016, whereby the defendant / appellant was directed to pay 40% of the share of profit w.e.f. 22.07.1987. He would further submit that the First Appellate Court has erred in law in remanding the matter back to the court below.

16) A perusal of the order dated 04.04.2016 passed by the trial court would depict that the trial court did not consider the decree passed in favour of the plaintiff / decree holder and directed that the defendant / appellant shall pay Rs.14,25,289/- to the plaintiff / respondent no. 1. The trial court at the time of framing the final decree under Order 20 Rule 16 of the Code had failed to execute the decree in its tenor and passed a cryptic and unreasoned order. First Appellate Court has recorded a categorical finding in its judgment while remanding the matter and directed the trial court to prepare the final decree. The trial court did not adhere to said direction and without recording any reason in this regard had passed a cryptic order, which was unsustainable in the eyes of law.

17) Hon'ble Supreme Apex Court in State of Uttaranchal and another vs. Sunil Kumar Vaish and others (2011) 8 SCC 670 has been pleased to observe in paragraphs no. 18, 19 and 20 of the judgment as under:

"18. Judicial determination has to be seen as an outcome of a reasoned process of adjudication initiated and documented by a party based mainly on events which happened in the past. Court's clear reasoning and analysis are basic requirements in a judicial determination when parties demand it so that they can administer justice justly and correctly, in relation to the findings on law and facts. Judicial decision must be perceived by the parties and by the society at large, as being the result of a correct and proper application of legal rules, proper evaluation of the evidence adduced and application of legal procedure. The parties should be convinced that their case has been properly considered and decided."

"19. Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning. Proper reasoning is an imperative necessity which should not be sacrificed for expediency. The statement of reasons not only makes the decision easier for the parties to understand and many a times such decisions would be accepted with respect. The requirement of providing reasons obliges the judge to respond to the parties' submissions and to specify the points that justify the decision and make it lawful and it enables the society to understand the functioning of the judicial system and it also enhances the faith and confidence of the people in the judicial system."

"20. We are sorry to say that the judgment in question does not satisfy the above standards set for proper determination of disputes. Needless to say these types of orders weaken our judicial system. Serious attention is called for to enhance the quality of adjudication of our courts. Public trust and confidence in courts stem, quite often, from the direct experience of citizens from the judicial adjudication of their disputes."

18) Hon'ble Supreme Court in the case of Union of India vs. Ibrahim Uddin and another (2012) 8 SCC 148 has observed as under:-

"77. This Court while dealing with an issue in Kalyan Singh Chouhan v. C.P. Joshi, after placing reliance on a very large number of its earlier judgments including Messrs. Trojan & Co. v. RM.N.N. Nagappa Chettiar, Om Prakash Gupta v. Ranbir B. Goyal, collector (LA) and State of Maharashtra v. M/s. Hindustan Construction Company Ltd., held that relief not founded on the pleadings cannot be granted. A decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in absence of the pleadings in that respect. No party can he permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. It was further held that where the evidence was not in the line of the pleadings, the said evidence cannot be looked into or relied upon.

To sum up: In view of the above discussion, we reach the following conclusion:

85.1. The first appellate court as well as the High Court committed grave error in shifting the burden of proof on the Union of India, appellant/defendant No.1, though it could (sic should) have been exclusively on the plaintiff/respondent No.1 to prove his case.

85.2. There is nothing on record to prove the grant/gift by the Maratha Government in favour of ancestors of plaintiff/respondent No.1 in the year 1800. Respondent No. 1-plaintiff miserably failed to prove the pedigree produced by him.

85.3. The alleged partition in the year 1819 among the ancestors of plaintiff/respondent No.1 even if had taken place, cannot be a proof of title of the plaintiff/respondent No.1 over the suit property as the pedigree has not been proved. Presumption under Section 90 of the Evidence Act in respect of 30 years' old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it. The contents of the document are true or it had been acted upon have to be proved like any other fact. More so, in case the Will is ignored, there is nothing on record to show as how the plaintiff/respondent no. 1 could claim the title.

85.4. The rent note produced by the appellant/defendant No.1 before the court below does not prove anything in favour of the plaintiff/respondent. The same being a vague document is incapable of furnishing any information and, thus, is liable to be rejected. The said document does not make it clear as who has executed it and in whose favour the same stood executed. It does not bear any date as it cannot be ascertained when it was executed. The lease deed cannot be executed without the signature/thumb impression of the lessee. The said lease does not contain any signature/thumb impression of any lessee and also the tenure of the lease has not been mentioned therein. The rent has been mentioned as Rs.22/- without giving any detail as to whether it was per day, fortnightly, monthly, quarterly or yearly or for ever. More so, there is no reference to the said rent note in the pleadings contained in the plaint, therefore, it is just to be ignored.

85.5. Had there been any Will in existence and not available with the plaintiff/respondent No.1 for any reason whatsoever at the time of institution of the suit, the plaintiff/respondent No.1 could have definitely mentioned that Will had been executed in his favour by his maternal grand-father which could not be traced. Therefore, the application under Order XLI Rule 27 CPC was liable to be rejected. Even otherwise, the Will in absence of any pleading either in the plaint or first appeal could not be taken on record. More so, the Will was not proved in accordance with law i.e. Section 68 of the Evidence Act.

85.6. The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the Court, it is just to be ignored. Though it may be a different case where in spite of specific pleadings, a particular issue is not framed and parties having full knowledge of the issue in controversy lead the evidence and the court records a finding on it.

85.7. The first appellate court committed a grave error in deciding the application under Order XLI Rule 27 CPC much prior to the hearing of the appeal. Thus, the order allowing the said application is liable to be ignored as the same had been passed in gross violation of the statutory requirement.

85.8. The documents produced by the Union of India have not been properly appreciated by the first appellate court and the High Court.

85.9. The courts below further committed an error holding that in case the document is taken on record, the document as well as the content thereof would be deemed to have been proved.

85.10. The appellate courts have also wrongly rejected the certified copies of the documents prepared by the Cantonment Board which were admissible in evidence.

85.11. The High Court committed a grave error in not addressing itself to the substantial questions of law framed at the time of admission of the appeal and it ought to have decided the same or after discussing the same a finding could have been recorded that none of them was substantial question of law.

85.12. The suit was barred by the proviso to Section 34 of the Specific Relief Act, for the reason that plaintiff/respondent No.1, admittedly, had not been in possession and he did not ask for restoration of possession or any other consequential relief.

85.13. The first appellate court as well as the High Court recorded a finding that the Union of India failed to prove its title over the suit land. The said courts did not realise that this was not the issue to be determined, rather the issue had been as to whether the plaintiff/respondent No.1 was the owner of the suit land.

85.14. The first appellate court has not decided the issue of admission of documents in correct perspective and recorded a perverse finding.

85.15. Question of filing a document in rebuttal of a Will could not arise. The other party has to admit or deny the document as required under Order XII CPC. There could be no Will in favour of the Union of India by the predecessors of the plaintiff, on the basis of which it could also claim title.

85.16. The courts below had wrongly drawn adverse inference against the appellant/defendant No.1 for not producing the documents as there was no direction of the court to produce the same. Neither the plaintiff/respondent No.1 had ever made any application in this respect nor he filed any application under Order XI CPC submitting any interrogation or for inspection or production of document.

85.17. The appellate courts have decided the appeals in unwarranted manner in complete derogation of the statutory requirements. Provisions of CPC and Evidence Act have been flagrantly violated."

19) A judicial, quasi judicial or even the administrative authority has to record the reason for arriving to a particular conclusion in adjudicating the case so that the appellate or revisional court may come to know what are the facts of the case and in what manner the case has been adjudicated. If reasons are not assigned, the appellate or revisional court will not be in a position to administer justice justly and correctly, in regard to the findings on law and facts. The reason for arriving to a particular conclusion is necessary so that it may reflect the case of the parties. The reason for arriving to a particular conclusion has been considered as a life in law. In absence of reasons, a judgment of a judicial, quasi judicial or even an administrative authority cannot be considered as just and proper adjudication of the case as the quality of a judicial decision depends principally on the quality of its reasoning.

20) The trial court did not record any reason while passing its order directing the defendant / appellant to pay Rs.14,25,289/-, ignoring the judgment and decree passed by the First Appellate Court, thus the First Appellate Court by assigning the reasons that the trial court did not consider the decree passed in favour of the plaintiff / respondent no. 1 and the directions passed by it, has rightly set aside the judgment passed by the trial court dated 04.04.2016 and remanded the matter to the trial court to decide the same on merits and to prepare a final decree in the tenor of the judgment and decree dated 11.12.2014, passed by the First Appellate Court.

21) Having considered the submissions of learned counsel for the parties and after perusal of the order impugned it would reveal that First Appellate Court has considered all aspects of the matter and has recorded its reasons that the judgment and order dated 11.12.2014 has attained finality and the trial court at the time of preparing final decree should have prepared it as per the decree which has not been done by it. A perusal of the trial court's order would reveal that it is not merely a cryptic and unreasoned order but, in fact, final decree has not been prepared pursuant to the preliminary decree modified by the First Appellate Court, which has attained finality between the parties. In view of the above, this Court is of the firm view that the First Appellate Court has rightly allowed the appeal vide judgment and decree dated 26.10.2017 and rightly remanded the matter to the trial court to prepare the final decree in accordance with the judgment and order dated 11.12.2014, which has attained finality between the parties. The Executing Court at the time of preparing the final decree cannot go beyond the decree.

22) Normally, the Appellate Court should not have remanded the matter when the entire material is before said Court. But, in the present case, for the preparation of the final decree pursuant to the preliminary decree dated 11.12.2014, the trial court should have appointed the Commissioner for settlement of accounts. The Appellate Court does not have such powers, thus the remand order has rightly been passed.

23) In view of the above, I find no illegality, perversity or jurisdictional error in the order impugned. The appeal is liable to be dismissed and the same is hereby dismissed. Interim order dated 21.02.2018, passed by this Court, is hereby vacated. No order as to costs.

24) However, considering the fact that the matter is more than 25 years old and as per the Direction of the Hon'ble Apex Court that such matters should be decided expeditiously on priority basis, the trial court shall make an endeavour to decide the suit, in accordance with law, after giving opportunity of hearing to the parties. Granting of unnecessary adjournment to either of the parties shall also be avoided.