Smt. Sushila Devi Kedia vs Gyanendra Kumar Ray

M.M. Das, J.—The appellant plaintiff in S.A. No. 14 of 1995 filed a suit against the respondent defendant for a decree for specific performance of contract seeking execution and registration of the sale deed in respect of ''B'' Schedule property and a decree for eviction of the defendant from ''A Schedule property along with a decree for damages with regard to use and occupation of the ''A Schedule property.

After pleadings were complete, the learned trial Court framed issues and answering the same found that the defendant having entered into an agreement to execute and register the sale deed in respect of the ''B'' Schedule property and having failed to perform his part of the contract and finding that the plaintiff was ready and willing to pay the balance consideration, decreed the suit for specific performance of contract and directed that the defendant shall execute the sale deed in respect of ''B'' Schedule property in favour of the appellant plaintiff on receipt of the balance consideration amount of Rs. 6000/-within three months from the date of the decree failing which the plaintiff is to deposit the said balance amount in the Court and get the sale deed executed and registered through Court. With regard to prayer for eviction, on analyzing the oral and documentary evidence on record, the trial Court also decreed the suit and directed that the defendant shall vacate the possession over the ''A'' Schedule property within three months and give possession of the same to the plaintiff failing which the plaintiff will be at liberty to evict the defendant from the ''A Schedule property through Court. The trial Court also decreed damages amounting to Rs. 2090/- for use and occupation of ''A'' Schedule property, against the defendant, to be realized by the plaintiff. The defendant carried an appeal against the said judgment of the trial Court in Title Suit No. 176 of 1984, which was registered as Title Appeal No. 84 of 1993. The learned District Judge, Cuttack after hearing the appeal confirmed the decree for specific performance of the contract but reversed the decree with regard to eviction of the defendant from the ''A'' Schedule land and the decree for damages. Being aggrieved, the appellant plaintiff has preferred Second Appeal No. 14 of 1995 challenging the judgment of the lower appellate Court reversing the decree passed by the learned trial Court with regard to eviction and damages. However, the respondent defendant has preferred Second Appeal No. 155 of 1995 against the judgment and decree of the Courts below by which the appellate Court confirmed the decree for specific performance of contract passed by the learned trial Court. S.A. No. 14 of 1995 has been admitted on the substantial questions of law mentioned in ground Nos. B, C, D and E of the appeal memo and S.A. No. 155 of 1995 has been admitted on the substantial question of law as to whether the learned Courts below have properly appreciated and determined the rights of the parties in terms of and on consideration of Section 20 of the Specific Relief Act.

Learned counsel for the appellant in S.A. No. 14 of 1995 submits that the learned lower appellate Court while dealing with the portion of the decree passed by the trial Court with regard to eviction and damages in a cryptic manner, by a short paragraph i.e. paragraph No. 14, held as follows :

Coming to the decree for eviction from the house that situates over Schedule-A land, I am of the view that the decree is unsustainable since it is based on no acceptable evidence. The plaintiff has examined no other witness to corroborate his statement nor has she brought any documentary evidence into record to show that she permitted the defendant to occupy house belonging to her at the time of his daughter''s marriage. When the defendant in his statement denies the plaintiff''s case about his occupying any house as a licensee, the learned Court below ought to have been slow to pass a decree for eviction and damages in absence of cogent and convincing evidence.

He further submits that the lower appellate Court has not taken into consideration the registered partition deed on compromise (Ext. 6), the registered sale deed by which the plaintiff purchased ''A'' Scheduled property (Ext. 3) and the tax receipt with regard to the house (Ext. 4 series) as well as the rent receipt under Ext. B series which were produced before the trial Court and basing upon which the trial Court came to a factual finding that the plaintiff is the owner of the ''A'' schedule property as well as in possession thereof and the defendant was only permitted to use the same for the marriage ceremony of his daughter.

It is well settled position of law that the first appellate Court being the final Court of fact is to analyze all the materials available on record and appreciate the same while coming to a factual finding contrary to the finding of fact arrived at by the trial Court and required to assign reason as to what the trial Court was wrong in passing the judgment, while reversing the decree. The Supreme Court in the case of Madhukar and Others Vs. Sangram and Others, ) while considering the judgment of the High Court in a First Appeal relying upon the decision in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., categorically laid down that sitting as a Court of First Appeal, it was duty of the High Court to deal with all the issues and the evidence led by the parties before recording its finding. It further held that First Appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the First Appeal must address to all the issues of law and fact and decide it by giving reasons in support of the findings. In Santosh Hazari (supra), the Supreme Court held that the appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the patties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court..... while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. It is clearly evident from the above quoted paragraph that the learned lower appellate Court has failed to exercise its jurisdiction, which was required to be exercised on its part as a final Court of fact. The reason assigned by the learned lower appellate Court to set aside the decree for eviction and damages passed by the trial court is absolutely not convincing nor is based on materials inasmuch as the lower appellate Court has not referred to the exhibits, mentioned above, which clearly goes to show that the plaintiff was the owner in possession of ''A'' schedule property. Now coming to the substantial question of law on which the S. A. No. 155 of 1995 has been admitted, it would be appropriate to refer to Section 20 of the Specific Relief Act, 1963 (for short ''the Act'')'' Section 20 of the Act is a discretionary jurisdiction of the Court to pass a decree for specific performance. It provides that the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by the judicial principles and capable of correction by a Court of Appeal. Cases in which such discretion can be used for not decreeing a suit for specific performance have been given in sub-section (2) with clauses (a) to (c) of Section 20 of the Act. We are concerned that Clause (b) of sub-section (2) which provides that the discretion can be used under the said section where the performance of contract would involve some hardship on the defendant which he did not foresee whereas its non-performance would involve no such hardship on the plaintiff. In the Explanation 2 given u/s 20 of the Act, it has been explained that the question where the performance of a contract would involve hardship on the defendant within meaning of Clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (Emphasis supplied). In paragraph-11 of the judgment, the learned lower appellate Court has categorically taken into consideration the hardship pleaded by the defendant and has come to the finding that from the materials produced, such hardship is not shown to be existing to have been undergone by the defendant.

In view of the above, this Court finds that the said substantial question of law on which S. A. No. 155 of 1995 was admitted does not exist to be determined in the said second appeal. In the result, therefore, S. A. No. 155 of 1995 is dismissed being devoid of merit and S. A. No. 14 of 1995 is allowed setting aside the judgment of reversal passed by the lower appellate Court with regard to the decree for eviction and for damages and restoring the judgment and decree of the learned trial Court. However, in the circumstances of the case, there shall be no order as to cost of these second appeals. All the interim order passed in both the second appeals stand vacated.