Appeal was barred under Section 96 of Civil Procedure Code as it was opposed as the suit agreement was admitted by the defendants and there was no dispute regarding the identity of the site agreed to sale and the amount of consideration.
Justice Y. Bhaskara Rao & Justice J. Eswara Prasad
Huzurabad Co-operative Marketing Society Limited
Whether the Court was convinced in approving the suit without framing of issues and to confirm whether the agreement was properly executed by the competent person?
- Desi Kedari laid a suit for specific performance of agreement of sale, dated on 26th of December, 1977. The Appellant is the plaintiff in the suit. It was executed by Huzurabad Co-operative Marketing Society Limited. The Respondent consented for executing a sale deed conveying the plaint 'A' schedule vacant land possessed by it with a measure of 165' * 12' located at Jammikunta Road for a consideration of Rs. 90,000.
- The Respondent filed a written statement on 10th August, 1981. It was declared that the President of the Society was authorized to sell its properties. The Managing Committee of the society, by a resolution as on 25th February, 1975 and resolution of the general body of the society as on 27th December, 1974, has also approved the President to sell the plaint schedule property.
- The Subordinate Judge decreed the suit on 1st of September, 1981 analyzing the statements made in the plaint are of proof. The defendant filed an appeal against the decree and judgment which came up before the learned single Judge. The plaintiff took an objection with regard to the maintainability of the appeal relying on Section 96 (3) of the Civil Procedure Code.
- It was contended that the appeal held before the learned single Judge is not maintainable as the decree under appeal accounted to a approval decree and that no appeal comes under Section 96 (3) of the Civil Procedure Code.
- A further contention was that when the parties were not at issue on the question of fact or of law, the Court was convinced in declaring the judgment corresponding to Order 15, Rule 1, C. P. C and that there was no reason for remanding the matter.
- It also contended that the suit agreement was accepted by the defendants in the written statement and there were no problem seen to the site agreed to be on sale and the price of Rs. 90,000
- It was contended that the fraud took place on part of the Court and the Trial Court should not have declared the suit without framing issues and without the parties handing over proper evidence.
- It was furthermore contended that there was no free will of declaration inside the meaning of Sub-Section (3) of Section 96 of the C. P. C. and the appeal was maintainable.
Relevant Paragraphs from the Original judgement (7, 9 and 10)
- It was understood that the appeal was not maintainable as it was barred under Section 96 of Civil Procedure Code which meant that otherwise expressly provided in the body or by any law being in time force, appeal shall lie from every decree and it could also not lie from a decree passed by the Court with the consent of parties.
- As it conveyed a vacant site, the defendants did not question the identity as it was sought to be conveyed under the agreement of sale. No dispute is raised with regard to the consideration payable by the plaintiff and mere wrong mention did not make much of a difference as the identity was sought to be conveyed. The disagreement was without substance.
- The plea was raised on certain contentions but they were not written in the statement and hence, the question of framing issues would arise only when material intention of fact or law is acknowledged by one party and denied by the other. In other state of affairs, there was no need to frame issues when there is no dispute with regard to substantial averments in the plaint.
The Supreme Court allowed the appeal. The judgment under appeal is set aside and the decree of the Trial Court is confirmed. It is made clear that there is no contest among the parties, both on facts or on law. It is well established that no contentions that are not based on the pleadings are entertained in the Court. The learned counsel for the respondents made an oral application for grant for leave to appeal to the SC. The leave was rejected and the appeal was allowed.
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