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Sanatan Mohapatra and ors. Vs. Hakim Mohammad Kazim Mohmmad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 72 of 1977
Judge
Reported inAIR1977Ori194; 44(1977)CLT606
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 41, Rules 23, 23A and 25; Transfer of Property Act, 1882 - Sections 54
AppellantSanatan Mohapatra and ors.
RespondentHakim Mohammad Kazim Mohmmad and ors.
Appellant AdvocateR. Ch. Mohanty, Adv.
Respondent AdvocateG. Rath and ;S.C. Roy, Advs.
DispositionRevision allowed
Cases ReferredJai Jai Ram Manohar Lal v. National Building Material Supply
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........but have also acquired title to the same by purchase from shri udayanath das by two registered sale deeds contemporaneously executed on 2-6-1958 (exts. 31 and 32). defendants while denying plaintiffs' alleged customary right, also denied their title to the suit land alleging that the aforesaid sale deeds under which the plaintiffs claim title are collusive and void documents and are not supported by any consideration (paragraph 10 of the written statement). they, however, claimed communal rights over suit land without claiming title to it either by purchase or inheritance or otherwise.2. the trial court decreed the suit holding that the plaintiffs had acquired title on the basis of the two sale deeds and granted the relief of permanent injunction sought for. it appears from paragraph.....
Judgment:
ORDER

S.K. Ray, J.

1. The principal opposite parties 1 to 7 instituted O. S. No. 3 of 1967-1 in the Court of Munsif. Bhadrak against the petitioners and pro forma opposite parties 8 to 14 for the relief of, inter alia, permanent injunction restraining the defendants, in their representative capacity, from interfering with their customary right of performing religious ceremonies on the suit land, on the ground that they have not only acquired this customary right of using the suit land for religious purposes but have also acquired title to the same by purchase from Shri Udayanath Das by two registered sale deeds contemporaneously executed on 2-6-1958 (Exts. 31 and 32). Defendants while denying plaintiffs' alleged customary right, also denied their title to the suit land alleging that the aforesaid sale deeds under which the plaintiffs claim title are collusive and void documents and are not supported by any consideration (paragraph 10 of the written statement). They, however, claimed communal rights over suit land without claiming title to it either by purchase or inheritance or otherwise.

2. The trial Court decreed the suit holding that the plaintiffs had acquired title on the basis of the two sale deeds and granted the relief of permanent injunction sought for. It appears from paragraph 12 of the judgment of the trial Court that the defendants made a number of admissions, namely, that the ex landlord executed a registered patta (Ext. 40) in favour of his wife Harmani in the year 1931 and that the latter gifted the suit land to Udayanath, vendor of the Plaintiff in 1939 (Ext. 44), that Udayanath sold the suit land to the plaintiffs by two registered sale deeds, Exts 31 and 32, and subsequently the plaintiffs mutated their names in respect thereof. It also appears from the records that Exts. 31 and 32 were admitted into evidence without objection.

3. On appeal by the defendant, the first appellate Court allowed the appeal, set aside the Iudgment and decree of the trial Court and remitted the suit to the trial Court directing its fresh disposal after framing a separate issue to the effect,

'Whether the plaintiffs have a customary right over the suit properties for performances of their religious functions or they have acquired a valid title over the suit land under two registered sale deeds dated 2-6-58 executed by Udayanarayan Das?'

The first appellate Judge also directed that the trial Court should give opportunity to both parties to adduce further evidence, if any, only regarding the validity of the two registered sale deeds.

4. The plaintiffs filed Second Appeal No. 71 of 1975 and Civil Revision No. 42 of 1975 in this Court against the aforesaid order of remand which were ultimately withdrawn on 17-12-76.

5. Thereafter, the defendants made an application for amendment of the written statement by introducing a new paragraph 10 (Ka) as has been extracted in paragraph 4 of the revision petition. By this amendment the defendants raised a new plea that the sale deeds Exts. 31 and 32 are invalid on account of fraud on registration.

6. The trial Court by its order dated 2-2-77 disallowed the amendment in the following words:--

'In view of my aforesaid conclusions, I have no alternative but tohold that the amendment sought being beyond the scope of the remand order the same cannot be allowed.'

The present revision petition is directed against this order of the learned Munsif.

7. The first matter to determine is the scope of the remand order and if the prayer of amendment of written statement is outside its scope. It appears from paragraphs 10 and 11 of the judgment of the Sub-Judge that the judgment and decree of the Munsif were set aside and he was directed to dispose of the suit afresh after framing an additional issue and receiving evidence from the parties on the validity of the two registered sale deeds (Exts. 31 and 32), if tendered. It is clear, therefore, that all findings of the trial Court with regard to other aspects of the issues involved in the suit were wiped out and the trial Court was to render fresh findings on them after hearing the counsel of the parties but strictly confining its consideration to evidence already collected in those respects.

It was not a case of an appellate Court framing certain specific issues and referring them for trial to the trial Court, in which case the trial Court's jurisdiction is confined to determine those specific issues and not all the issues. Neither Rule 23 nor Rule 25 of Order 41 is applicable. This appears to me to be a remand under Order 41, Rule 23A of the Code of Civil Procedure. This rule speaks of an open remand and, in this case, after reading the remit order of the first appellate court, I am satisfied that the remit order is an open remand. The only restriction is that the trial Court is not to take fresh evidence on any matter involved in the issues, either old or new, except on the question of validity of the two registered sale deeds.

8. The effect of the remand order is to relegate the suit to a stage where evidence has been collected on a number of issues and a fresh issue is framed and parties are allowed liberty to lead evidence on one aspect of that issue. In other words, the suit is relegated to the stage of trial where trial has commenced but is not concluded. The direction for a fresh disposal obviously means a direction to dispose of the suit in accordance with law. There is nothing in the remit order nor is that order susceptible to an interpretation as amounting to prohibition to amend the pleadings, even though a case for amendment arose. As already indicated, the power and jurisdiction of the Munsif exercisable under the various provisions of the Code of Civil Procedure had not been whittled down at all.

Order 6, Rule 17, C. P. C. provides that a Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Without any specific direction in the remit order prohibiting amendment sought for by any party to the suit, it is open to such parties to seek for amendment of their pleadings and, in each such case, it will be for the court to deal with it on merits, in accordance with judicial principles. The amendment sought for does not appear to be outside the scope of the remand order and the learned Munsif was wrong in rejecting it on that ground.

9. The next question to consider is if the amendment sought for should be allowed. One of the main issues in the suit is the plaintiffs' title to the suit land which involves the further crucial issue as to the validity of the two registered sale deeds (Exts, 31 and 32). In paragraph 10, of the original written statement, the defendants had impeached these two documents as collusive, void and without consideration. By amendment they wanted to take an additional plea of invalidity of those two documents, that is to say, those sale deeds are invalid on account of fraud on registration.

10. Mr. Rath's contention against this amendment is that in as much as the defendants being strangers to the sale transactions evidenced by Exts. 31 and 32, are not entitled to raise the question of passing or non-passing of consideration or its adequacy or inadequacy, they are, for similar reasons, precluded from impeaching the sale deeds on the ground of fraud on registration. Thus, if the defendants are prohibited in law to raise a plea, they cannot be allowed to amend their pleadings by incorporating such a plea therein.

In the case of Lal Achalram v. Raja Kazim Hussian, (1905) 32 Ind App 113 (PC) the Judicial Committee enunciated a principle that a stranger to a deed which is intended to be real or operative between the parties thereto cannot dispute payment or non-payment of consideration and its adequacy or inadequacy. This, however, is not an absolute one. It has no bearing in a case where a deed is challenged as fictitious, never designed to operate as a real deed or to effect a transfer of title. Generally, where a transaction is not impugned as fictitious and that it was intended or designed to be a genuine deed in order to effect a transfer of title and was acted upon as such by the parties to the transaction, it would be no concern of a third party that such a deed may be set aside by a party to the transaction on the ground available to him. But when a deed is challenged as a fictitious document which was never designed as a genuine deed in order to effect a transfer of title, it would be open to a stranger to the deed to impeach it as absolutely void and wholly invalid on all available grounds without any restriction. (See the cases of Kamini Kumar Deb v Durga Charan Nag, AIR 1923 Cal 521; Saradindu, Mukherji v. Kunja Kamini Roy, AIR 1942 Cal 514 and Jugal Kishore v. Umesh Chandra, AIR 1973 Pat 352).

Thus, whether the ground of challenge of a third party would be available to him or not would depend upon consideration of the question as to whether the impugned sale deeds were void documents or fictitious ones, never designed to operate as a real deed or to effect a transfer of title. If the Court on consideration of evidence on record comes to a finding that the sale deeds were genuine documents designed to effect transfer of title, then the technical pleas which are available only to the vendor or the vendee cannot be permitted to be raised by a third party. In this case, the original stand of the defendants was that these two sale deeds were collusive and void documents. One of the specific grounds of challenge was that no consideration passed thereunder. By amendment, the defendants have merely tried to enlarge the plea regarding collusive and void character of the documents. If a fraud on registration is established, it would make the two registered sale deeds ineffective, that is to say, these shall not affect the immovable property nor shall these be received as evidence of transaction affecting such property, though they may be received as evidence for the limited purpose envisaged in the proviso to Section 49 of the Indian Registration Act. In other words, these documents would not be valid documents for the purpose of creating rights in properties or extinguishing rights therein.

The impugned sale deeds, if valid in law, would affect the immovable property comprised therein in the sense that they would operate to create, declare or assign rights or interest in these properties in one party or extinguish or limit in another party. When the remand order directed the court to receive evidence as to the validity of these two documents, such direction would obviously mean to receive evidence which would show that these documents either created or never created any right to the properties in the vendee or extinguished right in such property of the vendor. One of such pleas would logically be that the documents have not been properly registered in the office of the Sub-Registrar. Viewed from this aspect, the remit order must be construed as giving authority to the trial Court to permit amendment of the written statement whereby evidence bearing on the question of validity of the sale deeds from this angle could be received. In one way, it can be said that amendment sought for was rather within the scope of the remand order than out of it.

11. The onus of establishing this additional plea would, obviously, be on the defendants. There may be available defences against such plea and it would be open to the plaintiffs to lead evidence to block this additional plea taken by the defendants by way of amendment.

12. As regards the power of amendment the general principle is that the power to grant amendment of the pleadings being intended to serve the ends of justice, is not to the narrowly construed and should be liberally exercised, unless the amendment sought for would change the nature of the suit. Rules of procedure are intended to be a handmaid to the administration of justice, and a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs.' (See the case of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 SC 1267). Applying these wholesome principles, I think this is a fit case where the amendment should have been allowed, once it is found above that such amendment was not outside the scope of the remit order.

13. For the aforesaid reasons, I am of opinion that the learned Munsif was wrong in rejecting the petition for amendment. I would, accordingly, set aside the order of the Munsif and alllow the petition for amendment and direct him to give some time to defendants to carry out the amendment and, thereafter, proceed to take evidence in accordance with law and to dispose of the suit according to the directions in the remit order of the first appellate Court. In the peculiar circumstances of the case, there shall be no order for costs.

Revision is allowed without costs.


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