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High Court Of Madhya Pradesh
R. K. Tankha and C. P. Sen, JJ.
SHRICHAND - Appellant
Versus
TEJINDER SINGH - Respondents
Letters Patent Appeal 23 Of 1976
Decided On : 09/11/1978
Where the Single Judge of the High Court sets aside an exparte decree, the order is a 'judgment' within the meaning of clause 10 of the Letters Patent, because.-
(i) by the impugned order the proceedings intiated on the application of the defendant under Order 9, rule 13 came to an end,
(ii) by setting aside the exparte decree the plaintiff is deprived of valuable right accrued to him under the decree which bas been passed in his favour and the defendant is relieved of his liability under the decree; and
(iii) the proceeding under Order 9, rule 13 is not a proceeding under the suit but it is an ancillary proceeding.
When these three conditions are satisfied an appeal under clause 10 of the Letters Patent is competent. AIR 1974 SC 1719 relied on. AIR 1962 Bom. 24, AIR 1922 Cal. 407 and AIR 1926 Cal. 327 dissented from. [Para 11]
(2) Letters Patent (Nagpur) - Cl. 10 - right of appeal- not fettered by section 104(2) CPC. AIR 1956 Nag. 211 relied on.
(3) Letters Patent (Nagpur) - Cl. 10 - scope of the appeal-power of the Division Bench.
The power of a Division Bench hearing a Letters Patent appeal under Cl. 10 from the Judgment of a Single Judge in first appeal is not limited only to a question of law under section 100, Civil P.C. but it has the same power which the Single Judge has as a first appellate Court in respect of both questions of fact and of law. The limitations on the power of the Court imposed by sections 100 and 101 Civil P.C. cannot be made applicable to an appellate Court hearing a Letters Patent appeal for the simple reason that Single Judge of the High Court is not a Court subordinate to the High Court. AIR 1974 SC 2048 relied on. [Para 13]
(4) Civil P.C., 1908 - O.43, R. 1(d) - duty of the appellate Court-should deal with the reasons given by trial Court for rejecting testimony of a witness.
(5) Appeal-power of appellate Court in appreciation of evidence.
The uniform practice in the matter of appreciation of evidence has been that if the trial Court has given cogent and detailed reasons for not accepting the testimony of a witness, the appellate Court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial Court. AIR 1972 SC 1716 relied on. [Para 14]
(6) Evidence Act, 1972 - S. 114(e) - suppression of material document-adverse inference may by drawn [Para 15]
(7) Civil P.C., 1908 - O. 41, R. 27 - additional evidence-application for admission necessary - documents should be proved - opportunity should be given to the other party to rebut it. [Para 15]
( 1 ) THIS is an appeal by the plaintiff under Clause 10 of the Letters Patent against the order of single Judge in Misc. 1st Appeal No. 151 of 1975 dated 278-1976 by which the learned single Judge has set aside the ex parte decree passed against the respondents. The 1st Additional District Judge, Jabalpur, had dismissed the respondents' application for setting aside of the ex parte decree.
( 2 ) IT is necessary to give a background of the present litigation between the parties in order to fully understand the facts and circumstances of the case. The suit out of which the present proceedings arise was filed by the plaintiff on 4-31968 for specific performance of contract of sale D/- 12-7-1958 and for recovery of Rs. 4,750/- on account of the oat-standing interest. The plaintiff's case was that he was in need of money for filing an appeal in the High Court against his father Komalchand and other members of his family against the decree in a partition suit. Raghubir Singh, father of the respondents, was a tenant of Komalchand and he had a decree for eviction against Raghubir Singh. When the plaintiff approached Raghubir Singh he agreed to advance the required amount of Rs. 2,000/- provided the plaintiff executed sale-deed in his favour in respect of house No. 166, Napier Town, Jabalpur, in which he was a tenant. The plaintiff accordingly executed a registered sale-deed for Rs. 10,000/- in favour of Raghubir Singh though only Rs. 2,000/- was paid and the balance amount of Rs. 8,000/- remained with Raghubir Singh on the condition that he would pay interest at the rate of 1% per month and whenever within 10 years the plaintiff would return the sum of Rs. 2,000/-Raghubir Singh would execute a deed of reconveyance. On the same day, a registered agreement of reconveyance was also executed by Raghubir Singh in favour of the plaintiff. Raghubir Singh paid interest up to 12-2-1961 but thereafter he stopped paying interest. The plaintiff used to pass receipts for the payments of interest. The interest accrued after 12-2-1961 came to Rs. 6,750/-and after adjusting the loan of Rs. 2,000/-taken by the plaintiff, the balance amount of Rupees 4,750/- remained outstanding against Raghubir Singh. The plaintiff asked raghubir Singh to execute a reconveyance deed but on one pretext or another raghubir Singh was avoiding to execute the deed, hence this suit was filed against the present respondents as Raghubir Singh died on 9-2-1968. The defendant No. 1 alone filed his written statement and resisted the claim in suit and denied that only Rs. 2,000/- was paid towards the sale-deed of 12-7-1958. In fact, their father Raghubir Singh paid the balance amount of Rs. 8,000/-on 4-5-1963 and the plaintiff had passed receipt. Since the plaintiff has not complied with the agreement of reconveyance by tendering the amount of Rs. 10,000/-he was not entitled to any relief in the suit. Raghubir Singh had paid all the interest that was due on the amount of Rs. 8,000/- till 4-5-1963.
( 3 ) THE plaintiff contended that the receipt was a forged and fabricated document and a stamp containing his signature in one of the receipts passed by him towards the interest paid by Raghubir Singh has been lifted and this receipt of 4-5-1963 has been manufactured. The two attesting witnesses to this receipt are real maternal uncles of respondents and a commission was issued from time to time for examination of these two witnesses. Ultimately, the witnesses could not be examined as one of them residing at Delhi refused to give evidence and the other who was residing in Calcutta was alleged to have later shifted to Delhi and did not attend before the Commissioner and left for jallander but the defendants stated that they would examine him in Court and did not agree to wait for his return to Delhi. On 20-10-1973 the trial Court proceeded ex parte against the defendants and an ex parte decree was passed on 1-11-1973. However, the ex parte decree was set aside on 8-5-1974
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