It is a settled rule that where a Court is rendering a finding,
it has got to be relatable to a plea taken up in the pleadings of the
parties and the issue framed thereupon.
In the written statement, no
such a plea was raised. Even the written statement of the defendants
was vague in this behalf. The learned trial Court did not frame any
issue as regard to the authority or otherwise of the power of attorney and
the consequence of its ratification or otherwise. The learned trial Court
held that the power of attorney did not empower the holder of the
attorney to enter into agreement to sell or transfer the property, and as
such, the findings of the trial Court are in apparent violation of the basic
rule of law and the provisions of the Code of Civil Procedure. It was
expected of the trial Court to frame an issue and subject the parties to
trial on that issue. Non-framing of an issue is a defect in the trial and
has certainly affected the rights of the parties to the suit, adversely.
These are the findings which could be recorded only based on specific
pleadings and upon taking appropriate evidence to the extent which
parties may deem fit and proper.
Resultantly, we have
no hesitation in setting aside the
Judgment and Decree of the trial Court on this short ground alone.
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 168/2005
Shri Ajit Gaitonde, Vs Smt. Ezilda Emiliana Cristina Pinto
CORAM : SWATANTER KUMAR, CJ. &
N.A. BRITTO, J.
Date : 22nd January, 2009.
Citation; 2009 9(3) ALL M R 838
The present appeal is directed against the Judgment and
Decree passed by the learned Civil Judge, Sr. Division, Panaji, Goa by
which he dismissed the suit of the plaintiffs for grant of relief of specific
performance. However, he directed refund of the earnest money of Rs.
1,15,000/- with interest, which is stated to have been paid under the
terms of the agreement. In view of the course of action that we propose
to take while disposing of the present appeal, it is not necessary for us to
notice the facts, in detail, in this appeal. Suffice it to note that the
parties had entered into an agreement for sale, dated 25.9.1987 which
was executed by a attorney on behalf of the original owner. However,
the relationship between the parties was that of mother and son. The
plaintiffs brought
a suit for specific performance to which various
defences were raised. The learned Trial Court while declining to grant
the decree for specific performance in favour of the plaintiffs, primarily,
dismissed the suit on the ground that the defendants can always fall
upon the plaint and the evidence produced by the plaintiffs to prove that
their case is false and that this aspect has to be based on the material
produced by the plaintiffs. The learned Trial Court observed that when
the defendant could demonstrate
the false
claim of the plaintiffs
through evidence, there could be no question of the plaintiffs' claiming
that they were taken by surprise and that such a plea could not be taken
by the defendants and held that the purpose of raising the plea in
defence is not to surprise the plaintiffs at the time of trial and when
plaintiffs themselves
produced evidence which revealed that the
plaintiffs' case is false, the plaintiffs could not be allowed to urge that
although their evidence prove their case to be false, the suit should be
allowed because of deficiency in the written statement filed by the
defendant. The learned Trial Court observed that the defendants 1(c)
and 1(d) demonstrated through the evidence of the plaintiffs,viz. the
agreement Exhibit PW.1/A and the Power of Attorney Exhibit PW.1/D
that the attorney had no power to enter into agreement for sale and that
there was no clause to ratify the acts and as such, it was not necessary
for the defendants to take the plea in their defence and that they could
very well demonstrate that the case of the plaintiffs was false, in which
the defendants have succeeded. By holding so, the learned trial Court
observed that the power of attorney Oscar D'Souza had no power to
enter into agreement for sale with the plaintiffs.
2.
The correctness of the above finding is challenged by the
appellants before us, primarily on the ground that no such plea was
raised in the written statement filed by defendant No.1 and no issue was
framed. The finding has been recorded in the absence of any issue in
that regard and thus, it is against the very essence of civil jurisprudence.
3.
The learned Counsel appearing for the respondents argued
that the power of attorney alleged to have been executed in favour of
the attorney holder did not empower him to sell the property and there
was not even ratifying clause. On the other hand, according to the
appellants, the attorney holder had full right to transfer the property and,
therefore, execution of the agreement to sell in no way suffers from any
infirmity and even the mother, the real owner, had written in favour of
the appellant No.1 to agree to sell the property.
4.
Be that as may, we are not called upon to comment upon
5
the legality or otherwise of these contentions which have been raised
before us. It is a settled rule that where a Court is rendering a finding,
it has got to be relatable to a plea taken up in the pleadings of the
parties and the issue framed thereupon.
In the written statement, no
such a plea was raised. Even the written statement of the defendants
was vague in this behalf. The learned trial Court did not frame any
issue as regard to the authority or otherwise of the power of attorney and
the consequence of its ratification or otherwise. The learned trial Court
held that the power of attorney did not empower the holder of the
attorney to enter into agreement to sell or transfer the property, and as
such, the findings of the trial Court are in apparent violation of the basic
rule of law and the provisions of the Code of Civil Procedure. It was
expected of the trial Court to frame an issue and subject the parties to
trial on that issue. Non-framing of an issue is a defect in the trial and
has certainly affected the rights of the parties to the suit, adversely.
These are the findings which could be recorded only based on specific
pleadings and upon taking appropriate evidence to the extent which
parties may deem fit and proper.
5.
Resultantly, we have
no hesitation in setting aside the
6
Judgment and Decree of the trial Court on this short ground alone.
Accordingly, the Judgment and Decree under appeal is set aside and the
matter is remanded to the Trial Court for conducting trial in accordance
with law, after framing issues on appropriate aspects of the case and
after such pleas are raised. No order as to costs. The parties are
directed to appear before the trial Court on 17 th February, 2009 at
10.00 a.m.
CHIEF JUSTICE
JUDGE
ssm.
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