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Judgment
1) Heard Mr. P.C. Dey, the learned counsel for the appellant. None appears on call for the respondents although the names of the learned counsels
representing the respondents No. 1 and 2 are reflected in the cause list. No one has entered appearance for respondent No. 3 despite service of
notice. Hence, this matter has been heard ex parte against the respondents.
2) By this appeal under Section 96 of the Code of Civil Procedure (CPC for short), the appellant has challenged the judgment and decree dated
09.03.2016, passed by the learned Civil Judge No. 2, Kamrup (M), Guwahati in Title Suit No.262/2014, thereby dismissing the suit ex-parte without
costs.
3) The short issue raised by the learned counsel for the appellant is that the impugned judgment was vitiated by non-application of judicial mind and
that the learned trial court had acted in a most mechanical manner, for which this was a fit and proper case for remanding the suit back to the learned
trial court for a fresh decision in accordance with law.
4) In support of his contention, the learned counsel for the appellant has submitted that as per the impugned judgment, though the learned trial court
has mentioned that none had appeared for the appellant-plaintiff and for the defendant in suit, but in paragraph 7 of the same impugned judgment, the
learned trial court has recorded that the said learned court had scrutinized the “forceful arguments†of the learned counsels for the parties. It is
further pointed out that in paragraph 17 of the impugned judgment, the learned trial court had referred the “Sale Deed†as Ext.2, whereas in
paragraph 16 of the same judgment, Ext.2 was stated to be a “Power of Attorneyâ€.
5) It is further submitted that in paragraph 17 of the said judgment, the learned trial court had held that the sale deed (Ext.3) is non-est and is liable to
be cancelled, whereas in paragraph 19 and 20 of the said judgment, the learned trial court had arrived at a finding that as sale deed No. 10774 (Ext.3),
has already been held to be void, it is not necessary for cancellation of the said sale deed, being void as the same is non-est in the eye of law and
therefore, the learned trial court proceeded to dismiss the suit.
6) The trial court record is revisited by this Court. It is seen that in the plaint, the appellant had prayed for cancellation of the sale deed (Ext.3),
cancellation of the general power of attorney (Ext.2), and for issuance of precept.
7) It is seen that by relying on the case of Prem Singh & Ors. Vs. Birbal & Ors., AIR 2006 SC 3608: (2006) 5 SCC 353, the learned trial court had
held that a document which is already void, need not be set aside by a decree. However, it appears that the learned trial court had not appreciated the
ratio laid down by the Hon’ble Court in the said case. The facts relating to the case of Prem Singh (supra) was that the sale deed in question was
executed by minor and in the said context, that the Hon’ble Apex Court had observed in paragraph 15 of the said case is as follows:
“15. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it
would be a nullity.†[quoted from (2006) 0 Supreme(SC) 440]. However, the Hon’ble Apex Court, on facts, had held in the case of Prem Singh
(supra) that the suit was not filed within the period of 12 years or within 3 years from the date of attaining of majority and therefore, the suit was held
to be barred by limitation, as decided by the trial court and therefore, the suit was dismissed.
8) Thus, from the case of Prem Singh (supra), it cannot be culled out that the Hon’ble Apex Court has laid down any ratio that the document,
which is void ab-initio, shall continue to remain void even if a suit is dismissed. In this context, in the considered opinion of this Court, when a
document is void ab-inito, it is not required for the court to set aside such a document set by a decree, but even then the Court would be obliged to give
a declaration to that effect without setting aside the document by way of a decree. In the opinion of this court, if a suit seeking cancellation of a
document to be void is dismissed, the plaintiff would not get the benefit of any finding recorded by the learned trial court that the document was void
ad-initio, as it would be construed that the challenge to the document was dismissed and the validity of a document, though void ab-initio, had survived.
9) Moreover, the learned trial court has mentioned in the covering page of the judgment that none appeared on call for the parties. Therefore, having
not heard any counsel for either the plaintiff or the defendant, there is no way that the earned trial court could have got any opportunity to scrutinize
the “forceful arguments†of the counsel for the parties. Furthermore, the referring of “Power of Attorney†as “Sale Deed†in respect of
Ext.2, prima-facie displays either an error apparent on the face of records and/or non-application of judicial mind, which vitiates the judgment itself.
10) Thus, this Court if of the opinion that the learned counsel for the appellant has been able to demonstrate that the learned trial court had failed to
exercise its jurisdiction in accordance with law and the power was exercised by the learned trial court with material irregularity.
11) In the case of J. Balaji Singh Vs. Diwakar Cole, AIR 2017 SC 2402: (2017) 0 Supreme(SC) 404, the Hon’ble Apex Court had mandated that
if the matter is sought to be remanded back to the trial court, the appellate court is not required to give a finding on merit. By following the said ration,
this Court has restrained itself from touching upon the merit of the judgment impugned herein and, as such, the facts of the case had not been gone
into. This is found to be a fit and proper case, wherein by setting aside the impugned judgment, the matter needs to be remanded back before the
learned trial court for a fresh adjudication in accordance with law, which is hereby ordered.
12) Accordingly, this Court is inclined to set aside the impugned judgment and decree dated 09.03.2016, passed by the learned Civil Judge No. 2,
Kamrup (M), Guwahati in Title Suit No.262/2014 by remanding the matter back to the said learned trial court. The said learned Court would now hear
the matter afresh after ensuring due service of notice on the defendants and proceed with the matter in accordance with law. This order of remand is
within the meaning of Order XLI Rule 23A CPC.
13) Accordingly, this appeal stands allowed by ordering remand of the suit for fresh trial as indicated above.
14) The appellant, who is duly represented by his learned counsel, shall appear before the Court of learned Civil Judge No. 2, Kamrup (M), Guwahati
on 26.04.2018 without any notice for appearance, and by producing a certified copy of this order, shall seek further instructions from the learned trial
court.
15) Let the LCR be returned back.