Rama Shanker Srivastava vs Smt. Usha Bala Srivastava

A.K. Yog, J.—This is a defendant''s second appeal arising out of the original Suit No. 30 of 1994 (Smt. Usha Bala. Srivastava v. Rama Shanker Srivastava) for seeking relief of decree for specific performance to execute the sale deed in pursuance of the agreement dated December 28, 1992. The trial court by its judgment and order dated 30.3.1998 directed the defendant to execute the sale deed within two months on accepting the balance sale amount of Rs. 14,600 and in case defendant fails to execute the sale deed and getting the sale deed registered, the same shall be executed by the Court at the Instance of the plaintiff and possession wilt be delivered accordingly. A perusal of the trial court''s judgment indicates that the defendant did not co-operate and made all possible efforts to ensure that the hearing of the suit is delayed. Trial court had finally proceeded for hearing of the suit under Order XVII, Rule 3 of the Code of Civil Procedure.

Against the order directing the case to proceed under Order XVII. Rule 3, C.P.C. a revision was filed by the defendant which was also dismissed and thereafter the trial court had proceeded to decide the suit finally. The trial court decreed the suit of the plaintiff on 20.3.1998 against which Appeal No. 355 of 1999 filed by the defendant, has been dismissed by the XIIth Additional District Judge. Allahabad by its Judgment and decree dated 22.7.2000.

Learned counsel for the defendant-appellant has raised two points only :

The appellant pleaded that the burden of proof lay upon the plaintiff to show that after obtaining permission from the competent authority under the Urban Land Ceiling Act, the burden of proof lay upon the plaintiff and he ought to have been given intimation to the defendant but the plaintiff having failed to do so and thus he failed to discharge his burden of proof. The grievance of the defendant-appellant as submitted by the learned counsel for the appellant is that the burden of proof on the said issue has been illegally placed upon the defendant-appellant.

It may be stated that from perusal of the trial court''s Judgment, it does not transpire that any pleading to that effect or any issue on this point was pressed. It appears that in the absence of necessary pleading on this aspect, no issue was framed and there is no reference on the said point in the trial court''s judgment. Apparently the defendant raised the aforesaid objection before the lower appellate court who has dealt with It on internal page 7 of the certified copy of the judgment filed along with the memo of appeal. The lower appellate court has noticed that according to the agreement in question, the defendant had to obtain the permission from the competent authority under the Urban Land Ceiling Act and to intimate the same to the plaintiff about the same. The lower appellate court has come to the conclusion that in view of the aforesaid clause as contemplated in the agreement, it was the duty of the defendant to obtain permission under the Urban Land Ceiling Act and to give notice of that permission to the plaintiff. On the basis of the record before him, the, lower appellate court came to the conclusion that the defendant failed to discharge his obligation and consequently failed to discharge the burden to establish that he had obtained permission from the ceiling authority and due notice/ information was given to the plaintiff.

The second and the last submission made on behalf of the appellant is that the Court, if decided to proceed under Order XVII. Rule 3 of the Code of Civil Procedure, it was under statutory obligation to proceed forthwith and deliver judgment the same day and since in the Instant case, the lower appellate court after concluding the hearing, fixed another date for delivery of judgment, the case could not be dealt with under Order XVII, Rule 3. C.P.C. and it ought to have been treated under Order XVII. Rule 2. C.P.C. The argument is fallacious. Learned counsel for the appellant conceded that they rightly proceeded under Order XVII. Rule 3, C.P.C. The argument to treat the suit under Order XVII. Rule 2. C.P.C., after the Court had proceeded and completed the hearing under Order XVII, Rule 3, C.P.C., at the time of fixing the date for delivery of judgment and should have reverted back so as to reverse entire proceeding for deciding the suit under Order XVII, Rule 2. C.P.C., is preposterous and without merit.

A perusal of the provision of Order XVII, Rule 3, C.P.C., as amended in the State of U. P., clearly shows that the Court is required to decide the suit forthwith and it should not adjourn the case and proceed with the hearing of the suit but it does not require that on this date alone. Court must complete the evidence as well as hearing in continuity. The mere fact that the Court after concluding the hearing on that date itself fixed the date of delivery of judgment does not mean that the Court did not decide the suit forthwith within the meaning of Order XVII Rule 3, C.P.C. The delivery of judgment is merely recording the decision which process the Court had already completed on the date of hearing itself.

No other point has been raised.

In view of the above, no substantial question of law arises in the present appeal. It is accordingly dismissed in limine.