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High Court Of Rajasthan
Judgename : L.N.Chhangani
ABDUL GANI - Appellant
Versus
DEVI LAL - Respondent
Civil Misc. Appeal 72 Of 1958
Decided On : 10/05/1959
ABDUL GANI AND ANR. VS. DEVI LAL AND ANR. - MORTGAGE - ORDER 43 RULE 1 CLAUSE (U) C. P. C. - SCOPE OF APPEAL - INTERPRETATION OF PRELIMINARY POINT - SCOPE OF HEARING IN AN APPEAL UNDER ORDER 43 RULE 1 CLAUSE (U) - LEGAL PROVISIONS, INTERPRETATIONS, AND INFLUENCES ON COURT'S DECISION.
Fact of the Case:
Plaintiffs filed a suit for ejectment of the defendant from the house and for the recovery of Rs. 225/- as arrears of rent. The defendant claimed to have paid Rs. 2600/- in full satisfaction of the mortgage and produced a receipt purporting to have been executed by the plaintiffs. The trial court dismissed the suit, but the appellate court reversed the finding and remanded the case for fresh decision.
Finding of the Court:
The court held that the appeal under Order 43 Rule 1 Clause (u) is competent and should be heard only on the grounds enumerated in Section 100. The court also held that the evidence of the defendants' witnesses was not reliable and that the evidence of the plaintiffs' expert was inconclusive. The court further held that the evidence of the defendant's expert did not clearly establish that the receipt was in the handwriting of the plaintiff.
Issues: 1. Whether the appeal under Order 43 Rule 1 Clause (u) is competent and should be heard only on the grounds enumerated in Section 100? 2. Whether the evidence of the defendants' witnesses was reliable? 3. Whether the evidence of the plaintiffs' expert was conclusive? 4. Whether the evidence of the defendant's expert clearly established that the receipt was in the handwriting of the plaintiff?
Ratio Decidendi: 1. The court held that the appeal under Order 43 Rule 1 Clause (u) is competent and should be heard only on the grounds enumerated in Section 100 because the test is whether in the circumstances an appeal would lie if the order of remand were itself to be treated as a decree and not a mere order. 2. The court held that the evidence of the defendants' witnesses was not reliable because they were interested witnesses and their evidence was contradicted by the plaintiffs' evidence and the surrounding circumstances. 3. The court held that the evidence of the plaintiffs' expert was inconclusive because he did not adopt the usual mode of comparison of the disputed handwriting with admitted handwriting and only pointed out general features. 4. The court held that the evidence of the defendant's expert did not clearly establish that the receipt was in the handwriting of the plaintiff because he failed to adopt the proper procedure for obtaining a specimen handwriting.
Final Decision: The court dismissed the appeal with costs.
L. N. CHHANGANI, J.
( 1 ) THIS is a defendants appeal under Order 43, Rule 1 Clause (u) C. P. C. against an appellate order of the District Judge, Jodhpur dated 30th September, 1958 reversing the decree of the Civil Judge, Jodhpur dismissing the plaintiff-appellants suit an a finding on one issue, and remanding the case for fresh decision after determining various other points arising in the suit. The material facts necessary for the decision of this appeal may be briefly given as follows :
( 2 ) ON 5th August, 1949 the defendant-appellant No. 1 Abdul Gani borrowed Rs. 2500/- from the plaintiff-respondents Devilal and Radhe Shyam and created a usufructuary mortgage of a house and transferred the possession of the house to the plaintiff-respondents. On the same day he took on lease the house from them and executed a rent-note in their favour on his own behalf and on behalf of his minor son Mohmad Saffi.
( 3 ) ALLEGING that the defendant-appellant did not pay any rent after the execution of the rent-note the plaintiff-respondents brought a suit for ejectment of the defendant-appellant from the house and for the recovery of Rs. 225/-as arrears of rent on 17-5-50 in the Court of Munsif, Jodhpur. Afterwards some minor amendments were made in the plaint and then it was on 18-5-1950 that the defendants filed a written statement. A number of pleas were raised by the defendants but I am not concerned with them in this appeal. On 18th December 1950 the case was adjourned to 13th January, 1951 for plaintiffs written statement. On 13th January, 1951 the defendants submitted an application marked Ex. D. W. 2 stating that at the intervention of some people the parties had compromised the claim under the mortgage itself and that the defendant-appellants paid Rs. 2600/-in full satisfaction of the claim under the mortgage. He produced a copy of the receipt purporting to have been executed by the plaintiff-respondents. It was further mentioned that the plaintiff had promised to return the mortgage-deed and the title-deeds and to withdraw the suit for ejectment but he is not doing so. He, therefore, prayed that in view of this settlement resulting in the discharge of the mortgage itself the suit of the plaintiffs should be dismissed. The plaintiff-respondents opposed this application and denied having executed any receipt. An issue was framed
"whether the defendant paid Rs. 2600/- to the plaintiff in full payment of the claim under the mortgage vide receipt Ex. D. 1 in pursuance of a compromise and, therefore, his suit is not competent. "
The trial judge after recording the evidence of the parties decided this issue in favour of the defendant-appellants and dismissed the plaintiff-respondents suit. He held that the execution of the receipt Ex. D. 1 by the plaintiff-respondent and the payment of Rs. 2600/- by the defendant-appellant to the plaintiff-respondent had been proved. He accordingly dismissed the plaintiffs suit. The plaintiff-respondents filed an appeal in the District Court, Jodhpur. The District Judge reversed the finding of the trial judge on the only issue decided by the trial judge and remanded the case for fresh decision after determining the other points arising in the suit. It was held by him that the defendants had failed to prove the payment of Rs. 2600/-to the plaintiffs. The defendant-appellants have consequently come to this Court in appeal.
( 4 ) AT the outset Shri Badri Narain Chanda appearing on behalf of the plaintiff-respondents raised a preliminary objection that in the circumstances of the case the appeal is not competent. The appeal has been preferred under Order 43, Rule 1 Clause (u) on the footing that the order of remand was passed by the lower court under Order 41, Rule 23, C. P. C. contending that the words
"preliminary point" should be confined to the pleas like limitation, res judicata and jurisdiction which are strictly independent of the merits of the case --the learned Advocate argued that the tri
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