R.R Yadav, J.:— Instant two appeals have been filed against the judgments and decrees dated 21.5.91 passed by learned Additional District Judge, Barmer in Civil Appeal No. 8/89 filed by defendant respondents No. 1 and 2 and in Civil Appeal No. 9/89 filed by same defendant-respondents whereby he set aside the judgments and decrees dated 21.8.89 passed by learned Munsiff Magistrate, Barmer in Original Civil Suit No. 31/84 between Amri Devi and Ridmal Singh and Ors. and in Civil Original Suit No. 32/84 between Purshottam and Ridmal and Ors. Learned trial court has decreed both the suits whereas the learned lower appellate court dismissed both the suits.
2. On 2.2.93 notices were issued to defendant respondents No. 3 and 4 to show cause why the appeal be not admitted and allowed at admission stage. Now, notices have been duly served to all the respondents. Legal representative of deceased Ridmal Singh arrayed as respondent No. I have been substituted in the array of respondents as respondents No. 1/1 to 1/4 who are represented by learned counsel Shri S.C Maloo. Shri Maloo also represents respondent No. 2. Irrespective of due service neither Kushal Singh nor Ran Singh respondents in these appeals are present personally nor they have engaged any counsel to do ‘Pairvi’ on their behalf. Therefore there is no alternative in these two appeals except to proceed ex parte against them as envisaged under Sub-rule (2) of Rule 17 of Order 41 CPC.
3. Since in both the appeals common question of law and facts are involved therefore these two appeals can be conveniently finally disposed off by a common judgment. The appeal No. 118/91 shall be treated to be leading case.
4. Brief facts which are necessary for disposal of these two appeals are that both the plaintiff-appellants through two separate suits alleged in their respective plaints that they have purchased the plot in question, through two registered saledeeds on 27.4.81 situated in Neharu Nagar, Barmer from defendant-respondent Kushal Singh and both of them paid consideration of Rs. 3,000/- each to him.
5. Both the plaintiff-appellants by way of filing aforesaid two separate suits sought same reliefs for possession of the suit land and in the alternative they prayed that if possession of the plot in suit could not be restored to them then a decree for refund of the consideration may be awarded against defendant-respondent Kushal Singh.
6. Defendant-respondents No. 1 and 2 filed their separate written-statements and denied the fact that disputed land was ever possessed by Kushal Singh or that he was ever sold to plaintiff appellants Purshotam or to Smt. Amari Devi. It was stated by them that plot in question was sold by a registered sale-deed by Damar Singh to Ridmal Singh on 4.10.81
7. It is important to note that defendant respondents Kushal Singh along with Ran Singh filed separate written statements and Kushal Singh had admitted to have executed two separate saledeeds in favour of plaintiffs-appellants after receiving consideration of Rs. 3,000/- from each of them.
8. On the pleadings of the parties the learned trial court framed as many as 8 issues and after hearing the learned counsel for the parties decreed the suit as mentioned in the preceding paragraph.
9. I have heard the learned counsel for plaintiff-appellants and learned councounsel appearing on behalf of legal representatives of deceased defendant-respondent No. 1 and respondent No. 2 and perused the judgments given by both the courts below.
10. It is well to remember that under Order 41 Rule 33 CPC, the first appellate courts are required to pass any decree and make any order which ought to have been passed or made and to pass or make further decree or order as the case may require. It appears that in the present case, the aforesaid mandatory provisions envisaged under Order 41 Rule 33 CPC have escaped the notice of learned lower appellate court while reversing both the judgments passed by learned trial court.
11. A close scrutiny of judgments given by first appellate court in these two appeals reveal that it has dismissed both the suits filed by plaintiff-appellants, holding that two sale deeds dated 27.4.81 executed by Khusal Singh in favour of plaintiff-appellants are void but again it fails to take judicial notice of Section 65 of Indian Contract Act as well as Article 47 of the Indian Limitation Act. It is true that the aforesaid ground was not argued before the learned lower appellate court but the learned lower appellate court was required to take judicial notice of the aforesaid Section 65 of Indian Contract Act together with Article 47 of Indian Limitation Act as envisaged under sub-sec. (1) of Section 57 of Indian Evidence Act which clearly provides that all courts of law are under statutory obligation to take judicial notice of all laws in force in the territory of India. I am of the view that the provisions postulated under subsec. (1) of Section 57 of Indian Evidence Act are equally applicable to this court also in Second Appeal.
12. It would be expedient to quote Section 65 of the Indian Contract Act as well as Article 47 of Indian Limitation Act before appreciating its applicability to the facts and circumstances of the present case:—
“SECTION 65 OF THE INDIAN CONTRACT ACT: 65 Obligation of person who has received advantage under void agreement or contract that becomes void - When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.
ARTICLE 47 OF THE INDIAN LIMITATION ACT:
Description of Suit Period of Limitation Time from which period begins to run 47. For money paid upon an existing consideration which afterwards fails. Three years The date of the failure.
13. A conjoined reading of Section 65 of the Indian Contract Act read with Article 47 of the Indian Limitation Act lead towards an irresistible conclusion that when a contract becomes not enforceable either it being ab initio void or voidable then in such a situation any person who has received any advantage under such agreement or contract is bound under law to refund the consideration or to make compensation for it to the person from whom he received it provided a suit for recovery is filed within three years limitation from the date of failure of such agreement or contract. Here in the present case, it is evident from the judgment of both the courts below that Kushal Singh himself has admitted execution of two sale-deeds in favour of plaintiff-appellants and has also admitted about receipt of consideration of Rs. 3,000/- from each of them, therefore, if the learned lower appellate court set aside the judgment and decree of the learned trial court and refused to grant the relief for recovery of possession to plaintiff appellants on the basis of aforesaid two sale-deeds holding these sale deeds to be void then it has no alternative except to pass a decree for refund of consideration paid by the plaintiff-appellants to Shri Kushal Singh who had candidly admitted receipt of Rs. 3,000/- consideration from each of the plaintiff-appellants.
14. Now, I would like to examine some more facts of the present case, attracting the applicability of Section 65 of the Indian Contract Act read with Article 47 of Indian Limitation Act.
15. It is born out from judgments of both the courts below that Kushal Singh had executed two sale-deeds in favour of plaintiff-appellants on 27.4.81 and delivered possession to the plaintiff-appellants. It is further born out from the record that the plaintiff-appellants were dispossessed by defendant Ridmal Singh who is being represented by his legal representatives arrayed as respondent Nos. 1/1 to 1/4 in the present appeals, as well as defendant-respondent No. 2, namely, Kamal Singh on 30.9.81 When the plaintiff-appellants were dispossessed by the aforesaid defendant-respondents on 30.9.81 they filed the aforesaid two suis on 20.4.84 within three years limitation period prescribed under Article 47 of the Indian Limitation Act. It goes without saying that here in the present case, Kushal Singh received consideration from plaintiff-appellants and he transferred the land in suit to them, but the learned lower appellate court held both the transfers to be void. It is also born out from the judgment of learned lower appellate court that the plaintiff-appellant were given possession of the property transferred to them by their transferor Kushal Singh but subsequently they were dispossessed by Ridmal Singh and Kamal Singh on 30.9.81, therefore, even if limitation is computed from the date of dispossession i.e from 30.9.81 the present two suits which were filed on 20.4.84 were within three years limitation and as such the learned lower appellate court has committed substantial error of law and procedure in refusing to grant a decree for refund of consideration of Rs. 3,000/- paid by plaintiff-appellants to their transferor Kushal Singh.
16. Consequently, both these appeals are partly allowed and the judgments and decrees passed by learned lower appellate court in both these appeals are hereby modified to this extent that in Second Appeal No. 118/91 filed by Smt. Amari Devi, a decree to recover Rs. 3,000/- from her transferor-Kushal Singh defendant-respondent is passed and similarly in Second Appeal No. 119/91 filed by Purshotam, a decree to recover Rs. 3,000/- from his transferor-Kushal Singh defendant respondent is passed and both the suits filed by plaintiff-appellants are decreed partly.
17. With the aforesaid modification, the judgments and decrees under appeal passed by learned lower appellate court are hereby affirmed. Cost is made easy in both these appeals.
18. A copy of this judgment may also be placed in S.B Civil Second Appeal No. 119/1991.
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