Vittal Daulat Lad v. Ashok Govind Tawade .

R.M.S Khandeparkar, J.:— Heard learned Advocates for the parties. Perused the records.

2. This appeal arises from judgment and decree dated 26th April, 1996 passed in S.C Suit No. 5555 of 1995 by the City Civil Court, Mumbai. By the impugned judgment and decree the suit filed by the appellant has been dismissed in exercise of powers under Order VIII, Rule 10 of Civil Procedure Code. It is the contention of the appellant that though the impugned judgment and decree is stated to have been passed in exercise of powers under Order VIII, Rule 10 of Civil Procedure Code, the trial Court has rejected the claim of the appellant-plaintiff and has denied the relief prayed for in the suit without even following the procedure know to the law and without giving opportunity to the appellant to lead evidence in support of his contentions in the plaint. According to the learned Advocate the impugned judgment, though passed under Order VIII, Rule 10, does not disclose the application of mind to the matter in question nor it can be said to be a reasoned decision. In that connection attention is drawn to the decision of the Apex Court in the matter of (Balraj Taneja v. Sural Madan)1, reported in (1999) 8 SCC 396 : A.I.R 1999 S.C 3381. It is further submitted that it was not the case of the appellant that the property was purchased in the name of the respondent, though the appellant is the real owner but it was the case of the appellant that the suit premises were jointly purchased and both the parties are co-owners of the suit premises having equal share therein and the entire amount of consideration was contributed in equal share by the appellant and the respondent and, therefore, the provisions of Benami Transactions (Prohibition) Act, 1988, hereinafter called as “Benami Act”, were not at all attracted in the matter, so also that the cause of action for filing the suit having arisen pursuant to the threat of dispossession given by the respondent through the Police Sub-Inspector on 27th August, 1995 and the suit having been filed on 2nd September, 1995, the same was very much within the time. According to the learned Advocate for the appellant both these facts were totally ignored by the Court below. In support of the contention regarding the suit being within limitation, reliance is sought to be placed in the decision of the Apex Court in the matter of (C. Mohammad Yunus v. Syed Unnissa)2, reported in A.I.R 1961 S.C 808.

3. Learned Advocate for the respondent on the other hand has submitted that in view of the provisions contained in Order VIII, Rule 10 the trial Court was empowered to dispose of the suit based on whatever material placed before the Court and bare reading of the impugned judgment discloses that the trial Court, after taking into consideration all the materials placed before it, has passed the reasoned order and, therefore, the same cannot be said to be in violation of any provisions contained in section 2(9) of C.P.C Reliance is placed in the decision of this Court in the matter of (Namdeo Laxman Nawale v. Chandrasen Khasiram Rajeshirke)3, reported in 2001 (Supp.) Bom. C.R 323 : 2001 (2) Mh. L.J 941, Referring to the pleadings in the plaint it was sought to be contended on behalf of the respondent that the plea to the effect that the property was purchased in the name of the respondent has been clearly raised in those pleadings and, therefore, no fault can be found with the judgment of the trial Court applying the provisions of section 4 of the Benami Act. Considering the fact that the right of the appellant to the suit premises was denied as long back as in the year 1988 by the respondent, the suit ought to have been filed within three years from the said date of denial of the right of the appellant and the appellant having not done so, the suit was barred under Article 58 of the Limitation Act. Referring to section 99 of the C.P.C it is also sought to be contended that the defect, if any, in the matter of procedure while disposing of the suit would not justify interference in the impugned judgment and remand of the suit considering the fact that such procedural defect does not relate to the merits of the case.

4. Upon hearing the learned Advocates and on perusal of the records following questions arise for consideration: (1) What is the procedure to be followed while disposing the suit under Order VIII, Rule 10 of C.P.C Whether the trial Court has disposed of the suit in breach of such procedure? (2) Whether the document produced before the Court without following the procedure prescribed under the Code of Civil Procedure and Indian Evidence Act can be said to be forming part of “the materials on record” for the decree under Order VIII, Rule 10 of C.P.C? (3) Whether the pleadings in the plaint disclose the suit to be barred by the provisions of section 4 of the Benami Transactions (Prohibition) Act, 1988? (4) Whether the plaint, on the face of it, discloses the suit being barred by law of limitation? (5) Whether in the facts and circumstances of the case, the procedural lapse, if any, on the part of the trial Court, can be said to be not affecting the merits of the case?

5. Undisputedly, the suit has been disposed of in exercise of powers under Order VIII, Rule 10 of C.P.C Order VIII, Rule 10 clearly provides that where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up. There is no dispute that inspite of sufficient opportunity being given, the respondent/defendant failed to file the written statement. Therefore, no grievance can be made regarding the exercise of the jurisdiction of the trial Court under Order VIII, Rule 10 of C.P.C to dispose the suit.

6. The Rule 10 of Order VIII of C.P.C apparently speaks of the judgment or any order in relation to the suit as the Court thinks fit. Section 2(9) of the C.P.C defines the term “judgment” to mean a statement given by the Judge on the grounds of decree or order. Order XX, Rule 4(1) provides that the judgment of a Court of Small Causes need not contain more than the points for determination and the decision thereon. Sub-rule (2) provides that judgments of other courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. In other words as far as Small Causes Courts are concerned, their judgments shall disclose the point for determination and decision thereon, but those judgments may not contain elaborate reasons for such decision. However, at the same time, it cannot be disputed that every judgment has to be a speaking order. The Apex Court in Balraj Teneja's case (supra) while dealing with the point in relation to the scope of the expression “judgment” in the definition clause section 2(9) of the Code of Civil Procedure has observed thus:

“Whether it is a case which is contested by the defendants by filing a written statement, or a case which proceeds ex parte and is ultimately decided as an ex parte case, or is a case in which the written statement is not filed and the case is decided under Order 8, Rule 10, the Court has to write a judgment which must be in conformity with the provisions of the Code of at least set out the reasoning by which the controversy is resolved.”

7. Section 2(14) of the Code of Civil Procedure defines the term “order” to mean the formal expression of any decision or a Civil Court which is not a decree. The Apex Court in (Muktiar Singh v. State of Punjab)4, reported in (1995) 1 SCC 760 : A.I.R 1995 S.C 686 : (1995) 1 SCC 760 has held that the expression “decision” does not merely mean the conclusion but embraces within its fold the reasons which form basis for arriving at the conclusion.

8. The law, therefore, as regards the judgment or the order which can be passed even while disposing of the suit even under Order VIII, Rule 10 is very clear from the provisions of the Code and the above referred decisions of the Apex Court that any such judgment or order has to disclose the reasons for arriving the decision which the Court arrives at.

9. It cannot be disputed that while disposing of a suit under Order VIII, Rule 10 of C.P.C the Court can either dispose of the same on the basis of the case pleaded by the plaintiff in the plaint, or the Court can require the plaintiff to prove the said case by producing necessary evidence in support thereof. If the Court proceeds to dispose of the suit without requiring the plaintiff to adduce the evidence, certainly, as rightly submitted by the learned Advocate for the respondent, the Court would be entitled to look into the documents which are annexed to the plaint and forming part of the plaint. However, if no such document is annexed to the plaint and merely some documents are sought to be produced on the date of passing of the judgment or order under Order VIII, Rule 10, either through the Advocate of the plaintiff or otherwise, the same cannot be looked into by the trial Court for the simple reason that production of document before the Court has to be in consonance with the Rules of recording of evidence and not otherwise. Even the provisions contained in Order VII, Rule 14 clearly requires the plaintiff to produce the documents on which the plaintiff sues and to annex the list of documents on which he seeks to rely upon as evidence in support of his claim. Similar obligation is cast upon the defendant under the provisions of law contained in Order VIII, Rule 1 of C.P.C Further Order XIII clearly provides that the parties have to produce all documentary evidence before the settlement of issues and the document which is not so produced shall not be received thereafter unless sufficient cause is shown. The documents on being produced in terms of Order XIII are required to be marked as exhibits to enable the Court to read the said documents in the evidence. There are various provisions of law comprised in the law of evidence which are also required to be followed failing which the contents of the documents are not considered as forming part of the evidence merely because the documents are marked as exhibits. Any decision in that regard if required, one can safely refer to the decision of the learned Single Judge of this Court in the case of (Om Prakash Berlia v. Unit Trust of India)5, reported in A.I.R 1983 Bom. 1. In other words, in order to enable the Court to look into any document, other than those annexed to the plaint, which the party seeks to rely upon, in support of its claim or defence in the suit, has to be produced on record in the manner and the procedure known to the law and not otherwise. Any document which has not been produced on record in accordance with the provisions of law cannot be looked into by the Court even though the matter is to be disposed of in terms of Order VIII, Rule 10 of C.P.C

10. In the case in hand bare reading of the impugned judgment and order discloses that the trial Court, apart from referring to Exhibit “A” which is stated to be a note written by the respondent confirming the receipt of the amount of Rs. 4500/- being consideration in relation to the suit premises by the vendor of the property, there is reference to some other documents including declaration or statement in 145 proceedings in relation to the property in question and N.C Complaint dated 28-4-1988. Undisputedly, neither of these documents were produced on record by following the procedure known to law. Certainly, therefore, the trial Court was not entitled to refer to those documents while deciding the case.

11. As far as annexures to the plaint are concerned, no doubt they form part of the plaint, and the same are to be read along with the pleadings in the plaint. Referring to Exhibit “A” it was sought to be-contended on behalf of the respondent that the same clearly discloses that the property was purchased in the name of the respondent and that the appellant has not placed reliance on any other document as being disclosing to be a document of title to the property In the circumstances, therefore, according to the learned Advocate for the respondent, no fault can be found with the finding of the trial Court based on Exhibit “A” while holding that the suit was hit by section 4 of the Benami Act. However, as rightly submitted by the learned Advocate for the appellant, the Exhibit “A” has to be read with the pleadings in the plaint and not de hors the case pleaded by the plaintiff. The pleadings in the plaint nowhere disclose the Exhibit “A” to be the document of title. On the contrary the pleadings clearly reveal the Exhibit “A” to be a statement disclosing the confirmation of payment of consideration price to the vendor and thereby cessation of ownership of the vendor in relation to the suit premises. The pleadings further specifically disclose that the consideration amount of Rs. 4500/-, in respect of the suit premises in respect of which receipt was prepared, was contributed in equal shares by the appellant and the respondent and the vendor had conveyed the suit premises in favour of the appellant and the respondent in equal shares and both the parties i.e the appellant and the respondent had signed the said document as the executing parties for having purchased the said property in equal shares. The pleadings also disclose that the said writing was prepared by the respondent in the absence of the appellant prior to the payment of purchase price and without the knowledge of the exact contents of the said note, the appellant affixed his signature. It has been specifically stated by the appellant in the pleadings that the appellant signed the said writing as one of the purchases and that the said fact was clearly admitted by the respondent in his statement before the Metropolitan Magistrate, Bombay. The Exhibit “A” to the plaint undoubtedly refers to the description of the suit premises, payment of consideration price of Rs. 4500/- and also sale of the property by the vendor in favour of the respondent herein. It is pertinent to note that the pleadings nowhere disclose Exhibit “A” as being a document of title or a statement in relation to the conveyance of the property in favour of a particular person but the same is described as an acknowledgement in writing regarding the receipt of the sum of Rs. 4500/- by the vendor from the appellant and the respondent. If one reads the said Exhibit “A” along with the pleadings, it is apparent that it is the case of the appellant that the property which originally belonged, to one Ramalu Raj anna was purchased by the parties to the suit i.e the appellant and the respondent for a sum of Rs. 4500/- which amount was contributed by the appellant and the plaintiff in equal shares and, therefore, the property is owned by both the parties i.e the appellant and the respondent in equal shares. This being the case which is pleaded by the plaintiff in the absence of any dispute being raised as regards the said case and the matter having been proceeded under Order VIII, Rule 10 of C.P.C without, any challenge to the facts stated in the plaint, even assuming there is additional statement in the annexure “A” to the effect that the conveyance is in favour of the respondent, that by itself cannot be presumed to be a document of title which can justify the refusal of relief to the appellant on the basis of section 4 of the Benami Transactions (Prohibition) Act, 1988. In order to attract the provisions of section 4 of the Benami Transactions (Prohibition) Act, 1988 it is necessary that the property must be held in the name of a particular person other than the party approaching the Court with the plea that the person in whose name the property stands is not the real owner of the property but the party who is approaching the Court is the real owner of the property. That was certainly not the case of the appellant in the pleadings. The appellant in the case in hand has approached the Court with the specific plea of co-ownership and that while preparing the receipt regarding the payment of consideration amount for the property, the respondent without the knowledge of the appellant, had including an additional statement of fact in the note which was prepared only in relation to the acknowledgement of such consideration. Certainly this would not amount to any admission as such on the part of the appellant to the effect that the property stands in the name of the respondent, though appellant is real owner thereof. Much to the contrary the ownership of the respondent is also admitted to the extent of ½ share in the property. Without analysing these aspects of the matter apparently the trial Court jumped to the conclusion that the contention of the appellant is to the effect that he is the real owner though receipt stands in the name of the respondent. There was absolutely no scope for the trial Court to conclude that the case of the appellant being that he is the real owner of the property though the same stands in the name of the respondent and that, therefore, it is not entertainable in view of the provisions of section 4 of the Benami Transactions (Prohibition) Act, 1988. The decision in Namdeo Laxman Nawale is of no help in the case in hand. The same was decided in totally different set of facts. Besides, the observation in para 6 of the said decision justifies the conclusions arrived at herein, rather than supporting the contentions of the Advocate for the respondent.

12. As already observed above, reference to other materials by the trial Court on record was thoroughly unwarranted as the same material was not placed on record in accordance with the provisions of law and the same, therefore, could not have been basis to refuse the relief to the appellant. The contention of the respondent that the suit was barred by the law of limitation as having not been filed within three years from 1988 and which has been found favour with the trial Court, is also devoid of substance. The plaint, on the face of it, discloses that though in the year 1988 the respondent shifted to other premises, he tried to lay claim to the suit premises and consequently even filed NC complaint No. 119 of 20th April, 1988. It is also stated in the plaint that in the said complaint the respondent clearly admitted that the appellant is residing in the suit premises. It is also stated therein that the respondent thereafter started making false and baseless complaints to the police. However, contents of para 11 disclose that it was only on 27th August, 1995 that the respondent actually put in action his intention to dispossess the appellant from the suit premises and in that connection it has been stated in the said para that, “the defendant along with his Advocate Shri Joshi, Shri Salunkhe Sub-Inspector attached to Kasturba Police Station came to the suit premises at about 21.00 hours on 27th August, 1995 and directed the plaintiff to remove himself along with his family members and belonging within a week failing which they would take the possession of the suit premises forcibly by dispossessing the plaintiff. Apparently it was only on 27th August, 1995 the cause of action arose for the appellant to seek to enforce his right claimed by him to the suit premises. Being so and the suit having been filed immediately thereafter i.e on 2nd September, 1995, it cannot be said that the suit was barred by law of limitation. Article 58 speaks about the period of three years of limitation to obtain any declaration from the time when right to sue first accrues. The Apex Court in C. Mohammad Yunus v. Syed Unnissa's case has clearly held that the right to sue cannot accrue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right. Therefore, mere denial of right of a party without any threat regarding the infringement of the right will not set the law or limitation in motion against the party. The observations of the Apex Court in that regard are very clear. It is said “mere denial by the defendants of the rights of the plaintiffs and defendant No. 2 will not set the period of limitation running against them”. In the case in hand apparently mere filing of NC complaint cannot be said to put the law of limitation in motion against the appellant in relation to his right to the suit premises. It is only when the actual threat in that regard was received on 27th August, 1995 that the cause of action for filing the suit arose. From the fact that Police Sub-Inspector attached to Kasturba Police Station had approached the appellant on 27th August, 1995, there was justifiable apprehension in the mind of the appellant regarding the threat that the appellant could be dispossessed by the respondent and on that count the cause of action having arisen to file the suit. Therefore, the trial Court erred in holding that the suit was barred by the law of limitation.

13. Reference to section 99 of C.P.C, in the facts and circumstances of the case, can be of no assistance to the respondent. Had there been only procedural breach not affecting the merits of the case certainly section 99 could have been of some assistance to the respondent. Here is a case where in blatant breach of the procedure, the trial Court disposed of the matter by referring to certain materials and construing the same in the manner which is not permissible and certainly, therefore, the said breach of procedure has resulted in affecting the merits of the case. As already observed above, the pleadings apparently disclose contribution of Rs. 4500/- by both the parties in equal shares. There are other pleadings in the plaint regarding the residence of the plaintiff and his family members and various other facts. Certainly the trial Court ought to have taken into consideration those facts before arriving at any final decision in the matter. Having not done so, the trial Court has acted in breach of the procedure and certainly it affects the merits of the case and, therefore, while setting aside the impugned judgment it is necessary to remand the matter to the trial Court to dispose of the suit under Order VIII, Rule 10 in accordance with the provisions of law and bearing in mind the observations hereinabove. Needless to say that, considering that the suit pertains to the year 1995, the trial Court shall dispose of the same within a period of six months from the date of receipt of the order of this Court after hearing the parties, if they so desire, including affording opportunity to the appellant to lead evidence, if any, in support of the pleadings. The appeal is accordingly disposed of with no order as to costs.