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Nazoo Meah Vs. Mazar Ali - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal1003,95Ind.Cas.1011
AppellantNazoo Meah
RespondentMazar Ali
Cases ReferredSri Mohunt Govind Rao v. Sitaram Kesho
Excerpt:
civil procedure code (act v of 1908), section 11, order xx, rule 6 - suit for declaration of document as forged and without consideration--document found to be genuine and with part consideration--decree dismissing suit, whether may contain declaration as to consideration --finding necessary for determination of suit omitted from decree--res judicata. - .....costs. the plaintiff appealed to the district judge against this decree and the defendant filed a cross-appeal the plaintiff's appeal was on the merits and the defendant's cross-objection raised the objection that has been urged before us that the decree should not have contained any declaration with regard to the amount of the consideration found by the trial court to have been paid. the learned additional district judge dismissed both the appeal and the cross-objection, endorsing all the findings of the court below and affirming the decree of that court.2. the defendant has preferred this appeal and it is argued on his behalf that the decree in the suit should have been restricted to the dismissal of the suit and that there should not have been the mention of the amount found by the.....
Judgment:

Suhrawardy, J.

1. The plaintiff-respondent brought a suit in the Court of the Munsif of Hathazari in the District of Chittagong for declaration that the mortgage-bond, dated the 13th July 1919, purporting to have been executed by him in favour of the defendant was a forged document without consideration. The suit was dismissed on the merits--the Trial Court being of opinion that the document was a genuine one executed by the plaintiff. But at the same time it found that out of the consideration money mentioned therein, namely, Rs. 800, only Rs. 174 was paid by the defendant to the plaintiff in discharge of a previous mortgage-bond executed; by the plaintiff in favour of the defendant. The decree passed in the suit declared that the consideration for the bond having been fixed at Rs. 174 the suit is dismissed inter partes, each party bearing his own costs. The plaintiff appealed to the District Judge against this decree and the defendant filed a cross-appeal The plaintiff's appeal was on the merits and the defendant's cross-objection raised the objection that has been urged before us that the decree should not have contained any declaration with regard to the amount of the consideration found by the Trial Court to have been paid. The learned Additional District Judge dismissed both the appeal and the cross-objection, endorsing all the findings of the Court below and affirming the decree of that Court.

2. The defendant has preferred this appeal and it is argued on his behalf that the decree in the suit should have been restricted to the dismissal of the suit and that there should not have been the mention of the amount found by the Trial Court as paid on account of consideration. The decree is not happily worded but what is meant by it is that the suit is dismissed and it is declared that oat of the consideration money mentioned in the bond, only Rs. 174 was paid on account of the previous mortgage. Such a decree, in my opinion, is not wholly illegal. Order XX, Rule 6 lays down that the decree shall agree with the judgment; it shall contain the number of the suit, etc, and shall specify clearly the relief granted or other determination of the suit. The Court did not grant any relief but determined the suit by holding that the bond was genuine but that the entire consideration did not pass. The decree embodying this finding cannot be said to be against the provisions of the law. The prayer in the plaint is to the following effect: 'That the mortgage-bond dated the 28th Assar 1281 (13th July 1919) be set aside, after having been declared forged, fraudulent and without consideration and the defendant be made liable for the entire costs of the suit.' What I understand by this prayer to be the scope of the suit is that the Court was invited to set aside the bond on the ground that it was1 forged and without consideration. Both the expressions should be read together and the plaintiff wanted the Court to hold that the document was forged and necessarily without; consideration. The pleadings did not raise two separate issues, one relating to the forgery of the document and the other to the passing of consideration in the-event of the bond being found to be not forged. That may be so, but the declaration that has been made by the Court below is not, in my opinion, without jurisdiction or illegal. Reliance has been placed on behalf of the appellant in support of his contention to the decision of the Judicial Committee in the case of Janaki Ammal v. Narayanasami Aiyar 37 Ind. Cas. 161 : 43 I. A, 207; 20 M.L.T. 168 : 31 M.L.T. 225 : 14 A.L.J. 997 : (1916) 2 M.W.N. 188 : 23 O.W.N. 1323 : 39 M. 634 : 18 Bom. L. R. 856 : 21 C.L.J. 309 : 4 L.W. 530 (P. C.). In that case the plaintiff as the next reversioner brought a suit against a Hindu widow charging her with mal administration of the property in her possession as such widow. The Courts below found that the charges made by the plaintiff were all groundless and that the suit was liable to be dismissed; and the following declaration was made in the plaintiff's favour: 'The plaintiff is declared to be the next reversionary heir of the deceased Ramaiyar after the lifetime of defendants Nos. 1 and 2' (his widow and mother). This declaration, their Lordships expunged from the decree on the ground that it was unavailing as well as premature. Their Lordships also thought, in the circumstances of that case, that the plaintiff was not entitled to such a declaration for the plaintiff's other pray era having been rejected, the sole prayer that he was the next reversionary heir remained to be considered in' that suit and that prayer alone could not be granted under Section 42 of the Specific Relief Act. That case, therefore, is no authority for the proposition of law pressed before us. In some cases in order to avoid further litigation and re-agitation of the same matter over again it may be found necessary to make such declaration when the Court has tried a relevant point in connexion with the issue directly arising in the suit. Such a procedure was-adopted by the Judicial Committee in the case of Sri Mahant Govind Rao v. Sita Ram Kesho 21 A. 53 : 2 C.W.N. 681 : 25 I.A. 195 : Sar. P.C.J. 370 : 9 Ind. Dee. (n. s.) 744 (P.C.). There the plaintiff brought a suit on his proprietary right for recovery of possession of a portion of the properties in dispute. The Courts held that he was not entitled to them under the right he claimed; but he was entitled under a different restricted right granted to his ancestors by the British Government. In that view the plaintiff's suit was dismissed but their Lordships held that in the circumstances of that case there should be a declaration that the plaintiff was entitled to a share in the properties under the right conferred on his ancestors by the British Government and an enquiry should be made as to who were the parties interested in the properties. In making this declaration their Lordships made the following observation: 'The same reasons which support the declaration also show the propriety of giving in this suit such effect to the declared title of the plaintiffs as circumstances may admit. The High Court has made a declaration in favour of the plaintiffs, but it has dismissed the suit.' It does not appear as to whether this declaration was embodied in the decree of the High Court; but their Lordships directed that, further declaration and investigation should be made because, as they remarked 'if the title of the plaintiffs is disputed, they must bring a new suit, which would certainly increase expense; and in which, considering the peculiar nature of the grant, the lapse of time; and the uncertainty whether a declaration in a dismissed suit can supply a fresh starting ground, the plaintiffs would run substantial risks of miscarriage. Instead of dismissing the-suit the better course will be to direct an enquiry who are the persons now entitled, and to reserve further 'directions, under which it will probably be found possible to place them in legal possession-and so to terminate this unfortunate litigation. The same considerations arise in this case. If the finding of the Courts below that the entire consideration did not pass under the bond is expunged, it is not impossible that it should give rise to a fresh litigation supported probably by the production of more perjured evidence. Besides, the question seems to be of an academical interest. Suppose by having this declaration expunged from the decree, the defendant finds himself in a better position to re agitate the matter in another suit. But on the authorities it now seems settled that whether the finding 'of the' Courts on this point is omitted from the decree or not, it might operate as res judicata if it was necessary for the determination of the suit, and reference in this connexion may be made to the case of Dwijendra Narain Roy v. Jogesh Chandra Dey : AIR1924Cal600 . where it is observed; 'We must bear in mind the well settled rule that an estoppel in not confined to the judgment but extends to all facts involved in it an necessary steps, or ground work, in other words, a judgment, operates by way of estoppel as regards all: the findings which are essential to sustain' the judgment, though not as regards findings which did not form the basis of the decision or were in conflict there with.' Now, it has been found by both the Courts below that it was necessary to enter into this question in order to determine the main question in this case.--Whether the document was forged. The learned Trial Court after considering all the evidence on the both sides remarked: 'This is all the evidence on the record; there are other circumstances which have to be considered. Was it likely that the defendant who had previously taken a registered simple bond for Rs. 160 from the plaintiff for costs met by him in litigation on the latter's behalf would pay down Rs. 626 in cash to the plaintiff before the registration of the mortgage-bond?' Then lie entered into that question and came to the, conclusion that it was not and summed up his finding in these words: 'I am of opinion that the bond in suit was duly executed by the plaintiff and attested, by at least some of the witnesses on the 28th Assar, 1280; that Rs. 174 out of the consideration money was paid by discharge of the early bond that the balance of the consideration was not paid and that the bond in question is good for Rs. 174 and for no more.' The learned Additional District Judge in this connection says in his judgment: 'The point, of course, is not directly in issue, but the whole question as to the execution of the document is in issue and in order to come to a finding about that, it is necessary to consider the surrounding circumstances. For instance, one of the points raised for the appellant is that there is nothing to show where the defendant got the money from and that he ever lent so large a sum of money before. ' This observation clearly shows that the point with regard to the passing of the consideration was considered by the Courts below in order to find the real issue in the case whether the bond was genuine or not. I, therefore, hold that this appeal has no force and must be dismissed.

3. As to the cross-objection, the only point urged on behalf of the plaintiff is that on the finding that out of the consideration money mentioned in the bond only Rs. 174 was paid', the Courts below, ought to have decreed the suit to that extent, I have not been able to appreciate this, argument, for the plaintiff's suit was for setting aside of the bond an a declaration that it was forged, fraudulent and without consideration, the Court found that it was not forced nor fraudulent nor without, consideration and, therefore, the only course open to it was to dismiss the suit. In support of the contention pressed before us by the respondent, reference has been made to the case of Sri Mohant Govind Rao v. Sitaram Kesho 21 A. 53 : 2 C.W.N. 681 : 25 I.A. 195; Sar. P.C.J. 370 : 9 Ind. Dee. (n. s.) 744 (P.C.). referred to above. I have discussed the view of the Judicial Committee on the facts of that case and I do not think that all those considerations apply to the present case. I, therefore, hold that the cross-objection should also be dismissed.

4. In the result both the appeal and the cross objection are dismissed. We make no order as to costs in either.

Graham, J.

1. This second appeal has arisen in the following circumstances. The plaintiff-respondent e brought a suit for declaration that a mortgage-bond, dated' the 13th July 1919, purporting to have been executed by him in favour of the defendant was a forged document without consideration. The Trial Court found that the bond was genuine and that the consideration which passed was Re. 174 only, and not 800, as stated in the bold, and alleged by the defendant. It, therefore, dismissed the suit; but at the same time without confining its decree to the dismissal of the suit included therein its finding that the consideration was Rs. 174 only. Against that decision there was an appeal by the plaintiff to the District Court, and the defendant filed a cross-appeal praying that such portion of the decree as related to the finding that the consideration was Rs. 174 should be expunged. The learned Additional District Judge held that the findings of the Munsif were correct and dismissed both the appeal and the cross-appeal.

2. The defendant has now appealed to this Court and the plaintiff has filed a cross-objection. On behalf of the appellant it is argued that the Courts below have erred in law in making a declaration that the consideration was Rs. 174, that such declaration was outside the scope of the suit; and that, as there was no pleading, or issue to that effect, evidence could not be adduced thereon. It is urged, therefore, that the Court of Appeal below should have ordered the declaration in question to be expunged from the decree. On behalf of the plaintiff, on the other hand, in the cross objection, it is contended that the Courts below erred in dismissing the suit in toto; and that having regard to the fact that both the Courts below found that the consideration money as stated in the bond was not paid in full they should have made the declaration as prayed for in the plaint Further, it was contended that upon the facts found the Court of Appeal below should have declared that no consideration money was paid. In my opinion, the appeal and the cross-objection must both be dismissed. The relief asked for in the suit was of two-fold nature, namely, (1) for declaration that the bond was fabricated, and (2) that it was without consideration. An issue was framed accordingly in these terms: 'Is the mortgage-bond in suit fraudulent, fabricated and without consideration Is it liable to be set aside?' That being so, it cannot be said that the matter was outside the scope of the suit. On the contrary, it has been made the subject-matter of an issue, it was agitated between the parties and there was a decision on the point. The object which the appellant has in view is presumably to have the finding expunged so that the question of consideration may be left open; but having regard to the authorities on the point the findings arrived at in the judgment would be binding whether they are incorporated in the decree or not. That being so, the matter may be regarded as having only an academic interest. No doubt, relief not founded on the pleadings should not, as a rule, be granted. Rut, as pointed out in the case of Sri Mohunt Govind Rao v. Sitaram Kesho 21 A. 53 : 2 C.W.N. 681 : 25 I.A. 195 : Sar. P.C.J. 370 : 9 Ind. Dee. (n. s.) 744 (P.C.)., decided by their Lordships, of the Judicial Committee ' Where substantial matters which constitute the title of all the parties are touched in the issues and have been fully put in evidence and formed the main subject of discussion and decision n the Courts, the case does not come within the rule and a declaration of the rights of the parties though not founded on the pleadings pay be made.'

3. In my judgment the Trial Court was right in drawing up its decree in accordance with the findings arrived at by it. The appeal, therefore, fails.

4. The cross-objection also fails. The suit failed on the main point as it was found that the bond was not forged. I agree, therefore that both the appeal and the cross-objection must be dismissed.


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