Ram Ashrey (since deceased Mukesh Verma) vs Atul Kumar Gupta <BR> Atul Kumar Gupta Vs Ram Asray (since deceased Mukesh Verma)

Prafulla C. Pant, J.—Both these appeals, preferred u/s 100 of the Code of Civil Procedure, 1908, are directed against the common judgment and decree dated 21.08.1996, passed by Addl. District Judge III, Dehradun, whereby he has allowed the plaintiff�s Civil Appeal No. 25 of 1995, and dismissed the Misc. Appeal No. 73 of 1995 filed by him (plaintiff).

Heard learned Counsel for the parties and perused the lower court record.

Brief facts of the case are that original defendant Ram Ashray entered into agreement with plaintiff Atul Kumar Gupta on 01.10.1991, whereby the plaintiff agreed to sell the land in suit of plot No. 307/3, Balliwala Chowk, Village Kanwali, Dehradun (measurement and boundaries of which are mentioned in the plaint) for Rs. 1,40,000/-, after accepting Rs. 10,000/- as advance, and Rs. 15,000/- as part of consideration at the time of execution of the registered agreement of sale. The plaintiff�s case is that he was always ready and willing to perform his part of contract but the defendant avoided execution of sale deed. Initially, the sale deed was to be executed by 15.03.1992, which was extended upto 16.05.1992, as the defendant failed to obtain permission to sell the land from the Urban Land Ceiling Authorities. When the defendant did not execute the sale deed, plaintiff Atul Kumar Gupta instituted Suit No. 378 of 1993, before the Civil Judge, Dehradun, on 24.06.1993, for specific performance of contract. The defendant contested the suit. It is admitted to the defendant that he was the owner of the property in dispute, but as to the rest of the contents of the plaint, he denied the same. However, it was alleged in Para 4 of the written statement that the plaintiff was not ready and willing to perform his part of contract. In Para 5 of the written statement, it was stated that the defendant on his part did apply for permission from the Urban Land Ceiling Authorities, for sale. This indicates that execution of agreement of sale with the plaintiff was not disputed and the suit was challenged mainly on the ground that the plaintiff was not ready and willing to perform his part of contract. The trial court on the basis of pleadings of the parties, framed following issues:

Whether, plaintiff was ready and willing to perform his part of contract?

Whether, the defendant has lawfully seized the amount of part consideration, received by him?

To what relief, if any, the plaintiff is entitled?

Whether, the plaintiff was in possession of the land in suit at the time when the suit was instituted?

The trial court, after recording the evidence and hearing the parties, decided all the issues in favour of the defendant, and dismissed Suit No. 378 of 1993. It also dismissed the Misc. Case No. 180 of 1993, which was registered on application moved under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908, moved by the plaintiff, with a finding that the defendant had no knowledge of the interim stay order passed by the trial court, in the suit. Aggrieved by said judgment and order dated 05.05.1995, passed by the Additional Civil Judge, Dehradun, in aforesaid suit and Misc. case, first appeal numbering Civil Appeal No. 25 of 1995, and Misc. Appeal No. 73 of 1995, were preferred by the plaintiff, which were decided after hearing the parties, by Addl. District Judge III, Dehradun, on 21.08.1996. The first appellate court allowed the Civil Appeal No. 25 of 1995, holding that the plaintiff was always ready and willing to perform his part of contract, and is entitled to the decree of specific performance of contract. However, it dismissed the Misc. Civil Appeal No. 73 of 1995, concurring with the trial court that there is no wilful disobedience of temporary injunction, on the part of the defendant, as he had no knowledge of the interim order on the date the plaintiff is said to have been ousted from the possession. Defendant filed present Second Appeal No. 225 of 2001 (Old No. 807 of 1996) before the Allahabad High Court on 12.09.1996, challenging the judgment and decree passed by the first appellant court, in Civil Appeal No. 25 of 1995, which was allowed, and the suit No. 378 of 1993, was decreed for specific performance of contract. On the other hand, the plaintiff filed Second Appeal No. 226 of 2001 (Old No. 910 of 1996) before the Allahabad High Court on 28.10.1996, challenging the dismissal of Misc. Appeal No. 73 of 1995.

As far as the Second Appeal No. 225 of 2001 (Old No. 807 of 1996) is concerned, said appeal was not admitted by the Allahabad High Court. The first order passed on 13.09.1996, by said Court, reads as under:

The record be called for. The respondent be noticed and the matter be listed for hearing on admission on 08.11.1996.

The execution of the sale deed in terms of the decree shall remain stayed, till then.

On 08.11.1996, following order was passed on said appeal:

Counter affidavit filed to be kept on record. Learned Counsel for the appellant may file rejoinder affidavit in three weeks.

As prayed for let it be listed for hearing said matter in the first week of February 1997. The earlier order of stay as granted is to continue till further orders.

Various orders were passed by the Allahabad High Court, before this appeal is transferred to this Court u/s 35 of the U.P. Re-organization Act, 2000, for its disposal, without admitting the appeal.

The memorandum of appeal filed by the defendant shows that following three substantial questions of law, were suggested:

A. Whether, the findings of the court below that the plaintiff had been ready and willing to perform his part of contract having been arrived at when at all adverting the material contradiction in his testimony regarding possession of the entire amount in ready cash, the decree passed by it is at all sustainable in law?

B. Whether, the plaintiff having himself come with the case that he had entire amount lying in the Bank and that he also arranged the amount from taking loans from different persons, non-production of the Pass Book or statement from the Bank account or the loan transaction from private persons was fatal to the case and the court below erred in law in yet failing to draw adverse inference against the plaintiff on such count?

C. Whether, failure of the appellate court to draw adverse inference against non-production of lenders, who alleged to have advanced amount to the plaintiff to enable him to get the sale deed executed in favour of the defendant- appellant?

I have perused the entire impugned judgment passed by the lower appellate court, and also perused the entire lower court record. Having considered the submissions of learned Counsel for the parties, and after perusal of the record, I have no hesitation in saying that neither the alleged substantial question of law (A), nor (B), nor (C), quoted above, is a substantial question of law. Nor does any such substantial question of law arise out of the impugned judgment. It is pertinent to mention here that the findings of fact are being challenged by means of afore- quoted questions of law by the defendant and the findings recorded by the lower appellate court are well discussed, based on the evidence on record. Since, the findings of fact recorded by the lower appellate court are neither perverse nor against the evidence on record, and as no substantial question of law arises, the Second Appeal No. 225 of 2001 (Old No. 807 of 1996) is liable to be dismissed summarily.

As far as the Second Appeal No. 226 of 2001 (Old No. 910 of 1996) is concerned, said appeal was admitted by the Allahabad High Court on 29.10.1996, without formulating the substantial question of law, but on the substantial questions of law suggested in the memorandum of appeal, filed by the plaintiff. The three substantial questions of law suggested in the memorandum of appeal filed by the plaintiff, read as under:

Whether, the appellate court committed an error of law while not granting the relief under Order 39 Rule 2A of C.P.C. when in point of fact it was fully established that the injunction was granted restraining the defendant from interfering with the possession of the plaintiff and the said injunction order was brought to the notice of the respondent through Advocate Commissioner?

Whether, the plaintiff-appellant was entitled to get the decree in appeal No. 73 of 1995 in pursuance of the injunction order issued on 24.06.1993?

Whether, taking of possession by force by the defendant on 1.7.1993, was illegal?

The parties were heard at length and their submissions were considered on the questions of law, quoted above, on which the Allahabad High Court admitted the Second Appeal No. 226 of 2001.

Having gone through the lower court record, this Court finds that there is concurrent findings of fact of both the courts below on the point that on 1st July 1993, when plaintiff has alleged that he was ousted from the land in suit (possession of which is said to have been transferred to him at the time of agreement of sale), the defendant had no knowledge of the temporary injunction granted by the trial court against the defendant, as such, it cannot be said that there was wilful disobedience of the courts order on the part of the defendant, therefore, no direction under Rule 2A of Order XXXIX of the Code of Civil Procedure, 1908, could be passed against the defendant. It is settled principle of law that in its exercise of powers u/s 100 of the Code of Civil Procedure, 1908, the concurrent finding of fact recorded by the courts below should not be interfered with by the High Court, unless the same are perverse or against the evidence on record. Since, it is not a case where the finding on the service of notice relating to granting of temporary injunction on the defendant on 01.07.1993, can be said to be perverse or against the record, it cannot be held that the courts below have erred in law. For the same reason this Court is of the view that the lower appellate court has committed no error of law in dismissing the Misc. Civil Appeal No. 73 of 1995, while allowing the Civil Appeal No. 25 of 1995. Therefore, the questions of law raised by the plaintiff in his Appeal No. 226 of 2001 (Old No. 910 of 1996) are answered accordingly, against him.

For the reasons as discussed above, both the appeals i.e. Second Appeal No. 225 of 2001 (Old No. 807 of 1996) and Second Appeal No. 226 of 2001 (Old No. 910 of 1996) are hereby dismissed. Costs easy. Interim order passed by the Allahabad High Court staying execution of decree passed by lower appellate court, is hereby vacated.