Anjani Kumar Mishra, J. - Heard counsel for the appellants.
2. This is plaintiff''''s second appeal arising out of a suit for injunction and declaration, filed on the ground that the defendants fraudulently obtained a sale-deed from the plaintiff without having paid the entire sale consideration. The sale deed was, therefore, liable to be declared null and void and the plaintiffs, who being in possession over the land in question, were entitled to an injunction restraining the defendants from interfering in their possession on the basis of the null and void sale-deed.
3. The trial court proceeded ex parte against the defendants but, dismissed the suit. This judgment and decree has been affirmed in appeal.
4. The submission of the counsel for the appellant is that the defendants failed to file a written statement and, therefore, the plaint allegations stood admitted. The courts below should have, therefore, decreed the suit and in failing to do so, they have committed manifest illegality.
5. The second submission, raised, is that the trial court observed that no witness has been produced to substantiate the plaint allegation. This was illegal, inasmuch as, the plaintiff was never granted an opportunity to adduce oral evidence.
6. The last submission made is that the judgment of the appellate court is not in conformity with the Order 41, Rule 31, which requires the court to frame points for determination. In support of his contention, counsel has placed reliance upon Balraj Taneja v. Sunil Madan, AIR 1999 SC 3381.
7. This judgment deals with the provisions of law contained in Section 2 (9) and Order 20 CPC. It also deals with the consequences of the defendants failing to file written statement.
8. I have considered the submissions made by counsel for the appellants and have perused the record.
9. The Apex Court in the judgment cited has, referring to the relevant provisions of Order 8 CPC, has held that irrespective of whether or not a written statement is filed, it is open for the Court to pronounce judgment against the defendant or to make an order in relation to the suit as it thinks fit. The words "make such order in relation to the suit as it thinks fit" have been held to grant a discretion to the Court to not pronounce the judgment against the defendant, even while proceeding ex parte against him.
10. It has further been held that in spite of an admission of a fact having been made by a party to the suit, the court may still require the true fact admitted by the defendant to be proved as provided by Section 58 of the Evidence Act and the proviso thereto as also the proviso to Rule 5 (1) of Order 8 CPC.
11. The ratio of the judgment cited is that even if a written statement has not been filed, the Court can still require the plaintiff to prove his plaint case. Both the courts below proceeded, accordingly and upon appreciation of the evidence on record found that the plaintiff has failed to prove his case. They have accordingly dismissed the suit and appeal.
12. The reasons, assigned for dismissing the suit as also the appeal, are found to be cogent reasons.
13. The two courts below have also referred to the documentary evidence, filed by the plaintiff. The fact that documentary evidence was filed on record, clearly proves that adequate opportunity was granted to the plaintiff to adduce evidence and, therefore, the second submission of counsel for the appellants that they were never granted opportunity to adduce oral evidence, is without substance.
14. Although, it is true that specific points for determination have not been framed by the lower appellate court but in the facts and circumstances of the instant case, this Court finds that the same is merely a procedural defect, which does not vitiate the appellate order, inasmuch as, the entire documentary evidence on record, has been dealt with by the lower appellate court while dismissing the appeal. Despite a pointed query by the Court, counsel for the appellant could not point out any evidence, which has escaped consideration. Besides, the lower appellate court has mentioned the plaint case and the contention of the plaintiff-appellants.
15. In view of the above, this Court finds that no prejudice was caused to the appellant merely because the lower appellate court did not formulate specific points for consideration in the appeal. In my considered opinion, all points that arose for consideration, despite them not having been specifically framed, have still been duly considered and decided.
16. The lower appellate court while considering the documentary evidence filed by the plaintiff-appellants including the sale-deed executed by them and on the basis of what was recorded therein found that the entire sale consideration had been paid to the plaintiffs. In pursuance of the registered sale deed, the defendants have been duly muted over the land subject matter of the sale-deed. Accordingly, the sale-deed was found to be for consideration and that no fraud could be established by the plaintiff.
17. A finding has also been recorded that the plaintiffs have failed to prove their possession over the suit property.
18. In view of the above discussion and since no substantial question of law arises for consideration in the second appeal, the same is, accordingly, dismissed.
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