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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
NELSON SAILO, J.
Lalmawii D/o Chalchhunga – Appellant
Versus
Vanneihpuii D/o Kapbuanga (L) – Respondent
R.F.A. No. 19 of 2017
Decided On : 25-04-2024
Ex-parte Order - Civil Suit - Indian Registration Act, 1908 - Section 32A, 32 - Sale Deed, Undertaking, Res Judicata
Fact of the Case:
The plaintiff filed a Civil Suit seeking declaration of right, title, and interest in a land and building. The defendant failed to appear, and ex-parte proceedings were drawn. The plaintiff was allowed to present evidence, but the defendant was not given the opportunity to present defense evidence.
Finding of the Court:
The Court found the procedure adopted by the Trial Court to be unusual and remanded the case back to the Trial Court for consideration of the case afresh from the stage of defense evidence. The Court also directed the Trial Court to allow the defendant to produce and lead defense evidence and permitted the plaintiff to cross-examine the defense witness/witnesses.
Issues: The issues included the validity of the Sale Deed and the application of res judicata.
Ratio Decidendi: The Court held that the defendant should have been given the opportunity to present defense evidence and that the Trial Court's procedure was unusual. The Court also noted that the plaintiff could not raise the plea of res judicata as she had filed the second Civil Suit herself.
Final Decision: The impugned Judgment was set aside, and the case was remanded back to the Trial Court for fresh consideration from the stage of defense evidence. The Trial Court was directed to allow the defendant to produce and lead defense evidence and to permit the plaintiff to cross-examine the defense witness/witnesses. The Court also directed the Trial Court to dispose of the case within four months.
2. This is an appeal filed by the appellant against the Judgment dated 16.10.2017 passed by the Court of Senior Civil Judge-III, Aizawl in Civil Suit No. 9/2015 by which the Suit filed by the plaintiff was decreed in her favor. The instant appellant and respondent were the defendant and plaintiff respectively in the Civil Suit.
3. The Civil Suit was filed by the Plaintiff for a declaration of right, title and interest in her favor in respect of the land and building covered by LSC No. Azl-445 of 1980 located at Khatla Veng, Aizawl. The plaintiff also sought for a direction to the defendant for vacating the suit land and for handing over peaceful vacant possession of the land and building covered by LSC No. Azl-445 of 1980 along with other consequential reliefs.
4. The case of the plaintiff is that the defendant was in need of money and had approached the plaintiff for a loan of Rs. 30 lakhs for a period of three (3) months and for that she was willing to mortgage her land and building covered by LSC No. Azl-445 of 1980 as security for the loan. The plaintiff agreed to give the loan and on 06.03.2008, the defendant executed an undertaking ‘Intiamkamna’ on her own free will, agreeing to pay the loan within a period of three (3) months i.e. 06.06.2008 with interest @ 10% per month. The defendant further agreed that if she fails to repay the loan amount with interest by 06.06.2008, the mortgaged property would belong to the plaintiff. The defendant failed to pay the loan amount with interest to the plaintiff within the stipulated time and therefore, the plaintiff approached the defendant to sell her land and building which was mortgaged. The defendant being unable to repay the loan agreed to sell her land and building and accordingly, they executed a Sale Deed on 07.08.2008. As per the Sale Deed, the defendant sold her land and building to the plaintiff for a sum of Rs. 65 lakhs. The amount was received by the defendant on 07.08.2008 itself and the defendant executed a receipt to this effect in the presence of three (3) witnesses.
5. Thereafter, the plaintiff registered the Sale Deed with the District Registrar, Aizawl District, Aizawl under the Indian Registration Act, 1908 vide Document No. D-214(M) on 08.08.2008 and subsequently, the Revenue Authorities transferred and mutated the LSC in favor of the plaintiff after complying with all necessary formalities.
6. However, after about ten (10) months from the said transaction, the defendant filed Civil Suit No. 31/2009 against the plaintiff and others praying for a decree declaring the Undertaking (Intiamkamna) dated 06.03.2008, the Sale Deed dated 07.08.2008 and the Receipt dated 07.08.2008 to be null and void and un-enforceable. However, the Civil Suit No. 31/2009 on contest was dismissed by the Court vide the Judgment & Order dated 21.09.2012. Following the dismissal, the defendant in Civil Suit No. 31/2009 has filed the Civil Suit No. 9/2015 praying for a direction to the respondent/defendant No. 1 to handover vacant possession of the suit land and also for payment of rent for occupying the suit land without the permission and consent of the defendant as she had already purchased the suit land through the Sale Deed.
7. The defendant against the Civil Suit did not file her written statement despite receipt of notice and issuance of several summons. Therefore, ex-parte proceeding was drawn against the defendant on 17.08.2015. The defendant thereafter submitted an application for setting aside of the ex-parte order and for condonation of 120 days of delay for admitting the said application. However, the delay was not condoned and therefore the application for setting aside the ex-parte order was not allowed. The plaintiff examined herself as the sole plaintiff witness and the defendant was given an opportunity to cross-exami
The defendant should be given the opportunity to present defense evidence, and the Trial Court's procedure should adhere to the normal course followed in adjudicating civil disputes.
The plaintiff must establish how fraud was committed and the relevance of consensus ad idem in executing the sale deed in a property dispute.
The court emphasized the necessity of adhering to procedural rules under the Code of Civil Procedure to ensure that ex-parte decrees are justly administered and not issued without proper evidence of ....
The court ruled that a specific performance claim requires the existence of valid foundational documents, particularly when minors are involved in property transactions, necessitating a retrial to pr....
Point of Law : An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court will not reassess the material and seek to reach a conclusion different from the one ....
Subsequent purchasers cannot assert defenses of the original vendor without seeking leave under Order 22 Rule 10 of CPC, especially when the original sale deeds have been canceled.
In a suit for specific performance, the plaintiff's failure to satisfy the mandatory statutory requirements of demonstrating continuous readiness and willingness to perform their obligations, combine....
Execution of an agreement to sell does not constitute a breach of court undertaking prohibiting sale unless actual transfer of property occurred.
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