Thursday, 1 December 2016

Whether judgment can be set aside on ground that court has not given finding on all issues?

Though the learned Trial Judge after considering the pleadings of the
parties, framed as many as nine issues in the said suit, but the learned Trial
Judge, while dismissing the said suit, did not consider and/or decide all those
issues excepting the Issue No. 3 i.e., “Was there any agreement between the
parties with regard to sale of suit property on 26-12-93?” Dismissal of the suit by
deciding one of the issues out of nine issues framed in the said suit is contrary to
the provision contained in Order 14 Rule 2 of the Code of Civil Procedure which
gives a mandate upon the Court to decide all the issues in the suit at a time. As
such, on this score alone the judgment and decree which is impugned in this
appeal cannot be retained.
IN THE HIGH COURT AT CALCUTTA
 CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon’ble Justice Jyotirmay Bhattacharya
AND
The Hon’ble Justice Ishan Chandra Das
 F.A.T. 363 of 2012
 with
 CAN 3467 of 2016

Judgement On : 04-05-2016.
Citation:AIR 2016 Cal 329

Jyotirmay Bhattacharya, J. : This first appeal is directed against the
judgement and decree dated 30th July, 2012 passed by the learned Civil Judge
(Senior Division), 5th Court at Alipore in Title Suit No. 185 of 1999 at the instance
of the plaintiff/appellant. By the impugned judgement and decree, the plaintiff’s
suit for specific performance of contract was dismissed on contest on the ground
of non-compliance of the Court’s order regarding deposit of deficit stamp dutyand penalty on the impounded agreement for sale which was sought to be
enforced by the plaintiff by filing the suit for specific performance of contract
against the principal defendant/respondent no.1.
After filing this appeal, several interlocutory applications were filed by the
plaintiff/appellant in this appeal. An application seeking interim injunction by
restraining the principal defendant/respondent no.1 from transferring and/or
alienating the suit property and/or creating any third party interest therein was
filed by the plaintiff/appellant in this appeal. On the said application, initially an
order was passed on 25th September, 2012 by restraining the principal
defendant/respondent no.1 from transferring, alienating, encumbering or from
changing the nature and character of the suit property during the pendency of
this injunction application.
Subsequently on 8th October, 2012, another interim order was passed by
restraining the principal defendant/respondent no.1 from transferring, alienating
or encumbering the suit property and/or creating any third party interest in
relation to the suit property for a period of six weeks after reopening of this Court
after annual vacation for the year 2012 with liberty to the appellant to apply and
obtain extension of the interim order, but upon notice to the other side.
Subsequently on 17th December, 2012, another interim order was passed.
By the said order, the appellant was directed to show his bona fide by depositing
Rs.34,00,000/- (Rupees thirty four lakh) only with the learned Registrar General
of this Court by two weeks after the reopening of this Court after winter holidays
for the year 2012. It was also provided in the said order that the interim order,
already granted, will continue till 31st January, 2013 with liberty to the
appellant-petitioner to apply for extension of the same on the selfsame
application upon notice to other side with a rider that in the event, the appellant
fails to deposit Rs.34,00,000/- (Rupees thirty four lakh) only within the time as
above, the interim order shall stand automatically vacated.Pursuant to the aforesaid order passed by the Division Bench of this Court
on 17th December, 2012, the said sum of Rs.34,00,000/- (Rupees thirty four
lakh) only was deposited by the appellant-petitioner on 16th January, 2013.
Thereafter by a subsequent order passed on 31st January, 2013, the interim
order already granted on 17th December, 2012 was directed to be continued till
the disposal of the application for injunction.
The interim injunctions, which were passed by this Court from time to
time, as mentioned above, were ultimately made absolute by this Court on 26th
February, 2016.
Another application was filed by the plaintiff/appellant in the said appeal
seeking addition of Mr. Choudhuri’s client being the subsequent transferee of a
part of the suit property from the defendant/respondent no.1. Such prayer was
allowed by this Court. The subsequent transferee was impleaded as respondent
no.2 in this appeal.
On an application for injunction filed by the appellant being CAN 7128 of
2015, an interim order of injunction was passed by restraining the added
respondent no.2 from changing the nature and character of the suit property
and/or raising any construction and/or transferring and/or creating any third
party interest therein till the disposal of the said application for injunction. The
said application is yet to be disposed of.
In addition to the above mentioned applications filed by the appellant, the
plaintiff/appellant also filed two other applications; one for appointment of
receiver over the part of the suit property which was purchased by the added
respondent no.2 . In the said application, it is alleged that despite injunction
order was passed restraining the added respondent no.2 from raising any
construction in the suit premises, the added respondent no.2 is continuing withthe work of construction in the suit premises. Another application seeking police
help for enforcement of the order of injunction passed against the added
respondent no.2 has also been filed by the plaintiff/appellant.
Those two applications are listed for hearing today before this Court. While
those two applications were taken up for hearing we were invited by the learned
counsel appearing for the parties to dispose of the appeal itself on merit by
dispensing with the formalities regarding filing of paper books etc.
Since all the parties are now before us and the impugned order is of such
nature, the legality of which can be tested by this Court in this appeal purely on
a question of law, we have decided to dispose of the instant appeal on merit.
Accordingly, we heard the learned counsel appearing for the parties on the merit
of the appeal and considered the materials on record.
Let us now consider the merit of the instant appeal in the facts of the
present case.
We have already indicated above that the instant appeal is directed against
the judgment and decree passed by the learned Trial Judge dismissing the
plaintiff’s suit for specific performance of contract filed against the
defendant/respondent No.1 on the ground of non-compliance of the Court’s order
regarding deposit of deficit stamp duty and penalty on the impounded agreement
for sale. The learned trial judge held that since the deficit stamp duty and the
penalty as assessed by the Collector on the impounded agreement for sale i.e.,
Exhibit-2 has not been paid by the plaintiff/appellant, the agreement for sale
which is the very foundation of the suit cannot be admitted into evidence and if
the said document cannot be admitted into evidence, the relief which the
plaintiff has claimed in the suit for specific performance of contract cannot be
granted in this suit.Though the learned Trial Judge after considering the pleadings of the
parties, framed as many as nine issues in the said suit, but the learned Trial
Judge, while dismissing the said suit, did not consider and/or decide all those
issues excepting the Issue No. 3 i.e., “Was there any agreement between the
parties with regard to sale of suit property on 26-12-93?” Dismissal of the suit by
deciding one of the issues out of nine issues framed in the said suit is contrary to
the provision contained in Order 14 Rule 2 of the Code of Civil Procedure which
gives a mandate upon the Court to decide all the issues in the suit at a time. As
such, on this score alone the judgment and decree which is impugned in this
appeal cannot be retained.
In course of hearing of this appeal, we were addressed by the learned
counsel appearing for the parties as to the legality of the findings drawn by the
learned Trial Judge even on the issue regarding sufficiency of the stamp duty
paid on the said agreement for sale which was sought to be enforced by specific
performance of contract in the said suit.
It is submitted by Mr. Banerjee, learned counsel appearing for the
plaintiff/appellant that having regard to the fact that Schedule-IA of the Stampduty
on Instruments in West Bengal came into operation w.e.f. 31st January,
1994, stamp duty on conveyance was not required to be paid on the agreement
for sale in terms of the amended provision of Article 5(d) of Schedule-IA of the
said amended Act, as the said agreement for sale was executed between the
parties on 26th December, 1993. According to him, since the agreement for sale
was executed between the appellant and the mother of the defendant/respondent
no.1 on 26th December, 1993 i.e. prior to the amendment, as referred to above,
came into operation, his client was not required to pay stamp duty as per the
amended provision, rather his client was required to pay the stamp duty as per
the Stamp Duty Act which was prevalent as on the date of execution of the said
agreement for sale.Mr. Kar, learned counsel appearing for the defendant/respondent no.1
disputes such contention of Mr. Banerjee. He submits that the document is
required to be stamped as per the provision of the Stamp Act applicable on the
date when the document is sought to be enforced and not with reference to the
date when the document was executed.
Since we have already indicated above that the impugned judgment cannot
be retained on record as the judgment was not passed in the suit by adhering to
the provision of order 14 Rule 2 of the Code of Civil Procedure, we set aside the
judgment and decree impugned in this appeal on the said ground itself by
making it clear that all issues framed in the suit and/or additional issue which
may be framed in the suit on the basis of the pleadings of the respective parties
including the Issue No. 3 are left upon to be decided by the learned Trial Judge
on merit.
That apart, we are not unmindful of the provision of Section 36 of the
Stamp Act which provides that inadmissibility of the document for non-payment
of sufficient stamp duty cannot be questioned, if the document bearing
insufficient stamp is admitted into evidence. Here, we find that though the
agreement for sale was impounded, but at the same time the said document was
admitted into evidence as Exhibit-2. Once the said document was exhibited,
admissibility of the said document for insufficient stamp cannot be called into
question.
Before parting with, we like to mention here that the added respondent
no.2 was not a party in the suit before the learned Trial Judge. Since added
respondent no.2 is the subsequent transferee of a part of the suit property from
the defendant/respondent no.1 and the fate of such sale is dependent upon the
result of this suit, we feel that the suit should be decided in the presence of the
subsequent transferee also. As such, we add the subsequent transferee who hasalready been added as respondent No.2 in this appeal, as added defendant No. 2
in the suit.
The plaintiff/appellant is directed to serve a copy of the plaint upon the
added respondent no.2 and/or its learned advocate-on-record appearing before
this Court in course of this week.
Leave is granted to the added defendant no.2 to file written statement
within four weeks from the date of service of the copy of the plaint upon it and/or
its learned advocate.
The learned Trial Judge may frame additional issue, if necessary, after
considering the pleadings of the parties and decide all those issues including the
issues which have already been framed in the suit in accordance with the law.
We further direct that the interim order of injunction which was passed by
this Court from time to time against the defendant/respondent no.1, as indicated
above, will continue till the disposal of the suit.
We further make it clear that the interim order which was passed by this
Court against the added respondent no.2 will continue for a further period of
twelve weeks with this rider that in the event any application is filed by the
plaintiff/appellant seeking injunction against the added respondent no.2 before
the learned Trial Court, the learned Trial Court will make all endeavour to
dispose of the plaintiff’s application for temporary injunction as early as possible,
but before expiry of the injunction order as granted hereinabove.
It is further made clear that in the event, the court feels any difficulty in
disposing of the plaintiff’s application for injunction concerning the added
respondent no.2, the learned Trial Judge will be free to extend the operation of
this interim order of injunction till the disposal of the application and the learnedTrial Judge will decide the said application for injunction on its merit after giving
opportunity of filing objection to the added defendant no.2 in connection with the
injunction proceeding.
The money which has already been deposited by the plaintiff/appellant to
show his bona fide in terms of the order passed by this Court on 17th December,
2012 will remain in deposit with the learned Registrar General of this Court. The
fate of such deposit will ultimately abide by the result of the suit.
The learned Trial Judge is also requested to make all endeavour to dispose
of the suit as expeditiously as possible without granting any unnecessary
adjournment to any of the parties.
Since we have not decided the appellant’s application for receiver and/or
grant of police help on merit, it is made clear that in the event the
plaintiff/appellant is so advised, he may renew such prayer before the learned
Trial Court.
Let the lower court records be sent down to the court below immediately by
Special Messenger at the cost of the plaintiff/appellant to be deposited in course
of this week.
The appeal and the applications filed in connection with this appeal are
disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the
parties as expeditiously as possible.
 (JYOTIRMAY BHATTACHARYA, J.)
 ( ISHAN CHANDRA DAS, J. )
dc.
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