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2018 Supreme(MP) 395
IN THE HIGH COURT OF MADHYA PRADESH
Vivek Agarwal, J.
Jai Prakash Agarwal v. Brahma Kumar Jutsi and another
First Appeal No. 26 of 2003 (Gwalior): against the judgment and decree dated 17.9.2002 passed by the Court of Special Judge (NDPS) and Additional District Judge, Gwalior, in Civil Suit No. 5-A/2002; Decided on 31.5.2018
R. D. Jain with Kamal Mangal for appellant;
D. D. Bansal and Pawan Vijaywargiya for respondents.
Headnote:(1) Civil P. C., 1908 -- O. 9 R. 8 and O.17 R. 2 -- provisions of O. 9 R. 8 are to be examined in terms of provisions contained in O. 17 R. 2 -- O. 17 R. 2 gives option to Court to either pass order under O. 9 or grant adjournment or to make such order as it deems fit - plaintiff's counsel was aware that arguments are to be advanced but did not choose to appear before trial Court -- cannot be said that trial Court committed error in dismissing suit by invoking provisions under O.17 R. 2.1985 JLJ 223 referred to. [Para 9
(2) Agreement -- agreement to sell -- cheque issued for part payment of consideration -- returned in terms of provisions contained in agreement - was no more a consideration. AIR 1954 SC 429 and Benjamin on Sale, 8th edition, p. 787 discussed and relied on. [Para 39
(3) Specific Relief Act, 1963 -- S. 12 -- no evidence led by plaintiff to show that suit property was divisible -- stipulation in agreement that defendant No. 1 shall obtain concurrence of defendant No. 2 for execution of sale deed -- partial enforcement of contract not possible. (2011)11 SCC 153 and (1994) 4 SCC 18 distinguished. 1997(2) Vidhi Bhasvar 154 referred to. [Para 41
(4) Specific Relief Act, 1963 -- S.16 (c) -- readiness and willingness of plaintiff -- not an issue before trial Court -- this Court in first appeal is not required to delve into it. AIR 1996 SC 116, 2006(II) MPWN 17, (2000) 6 SCC 420, 2004 (1) MPLJ 502 and 2008 (1) MPLJ 638 referred to.
[Para 41
(5) Evidence Act, 1872 -- S. 114 -- it is true that party not entering into witness box has to suffer consequences -- but it is equally true that plaintiff is required to stand on his own legs and cannot take advantage of weakness of opposite party. AIR 1999 SC 1441 referred to. [Para 42
(6) Specific Relief Act, 1963 -- S.20(2) -- cheque issued for part payment, returned as per terms of agreement to sell -- compensation paid -- no contract subsists -- plaintiff is not entitled to any relief. 2017(1) MPWN 80 (SC) and AIR 1998 SC 2216 followed. AIR 2003 Del. 15 referred to. [Para 42
(7) Civil P. C., 1908 -- O.1 R. 10 -- application dismissed by trial Court - plaintiff travelled to High Court -- petition dismissed -- this issue could not be raised again in first appeal. [Para 42
¼1½ flfoy izfØ;k lafgrk] 1908 && vk-9 fu-8 rFkk vk-17 fu-2 && vk- fu- 8 ds mica/kksa dk ijh{k.k vk-17 fu- 2 esa varfoZ"V mica/kksa ds vuqlkj fd;k tkuk gksxk && vk-17 fu-2 esa U;k;ky; dks vk-9 ds v/khu vkns'k ikfjr djus vFkok LFkxu iznku djus vFkok ,slk vkns'k djus dk] tks og mfpr le>s] fodYi fn;k x;k gS && oknh ds dkmUlsy dks Kkr Fkk fd cgl dh tkuk gS ijarq mlus fopkj.k U;k;ky; ds le{k milatkr gksuk ilan ugha fd;k && ;g ugha dgk tk ldrk fd fopkj.k U;k;ky; us vk-17 fu-2 ds v/khu mica/kksa dk vkJ; ysrs gq, okn [kkfjt dj xyrh dhA 1985 ts ,y ts 223 fufnZ"VA ¼iSjk 9
¼2½ djkj && foØ; djkj && izfrQy ds vkaf'kd lank; ds fy, pSd tkjh
&& djkj esa varfoZ"V mica/kksa ds vuqlkj ykSVk;k x;k && izfrQy ugha jgkA , vkb vkj 1954 ,l lh 429 rFkk cSatfeu Ñr lsy] v"Ve laLdj.k] i`"B 787 foosfpr rFkk voyafcrA ¼iSjk 39
¼3½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 12 && oknh }kjk ;g n'kkZus ds fy, dksbZ lk{; is'k ugha fd;k x;k fd okn laifÙk foHkkT; Fkh && djkj esa vuqca/k dh izfroknh Ø- 1 foØ; foys[k ds fu"iknu ds fy, izfroknh Ø-2 dh lgefr vfHkizkIr djsxk && lafonk dk vkaf'kd ifjorZu laHko ughaA ¼2011½11 ,l lh lh 153 rFkk ¼1994½4 ,l lh lh 18 izHksfnrA 1997¼2½ fofèk HkkLoj 154 fufnZ"VA ¼iSjk 41
¼4½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 16¼x½ dh rS;kjh vkSj jtkeanh && fopkj.k U;k;ky; ds le{k fookfnr ugha && bl U;k;ky; ls izFke vihy esa ml ij fopkj djuk visf{kr ughaA , vkb vkj 1996 ,l lh 116] 2006¼2½ e-iz- ohDyh uksV~l 17] ¼2000½6 ,l lh lh 420] 2004¼1½ ,e ih ,y ts 502 rFkk 2008 ¼1½ ,e ih ,y ts 638 fufnZ"VA ¼iSjk 41
¼5½ lk{; vf/kfu;e] 1872 && /kkjk 114 && ;g lR; gS fd lk{kh dB?kjs esa izfo"V ugha gksus okys lk{kh dks ifj.kke Hkksxuk gksrs gSa && ijarq ;g Hkh leku :i ls lR; gS fd oknh dk vius iSjksa ij [kM+k gksuk visf{kr gS vkSj og fojks/kh i{kdkj dh nqcZyrk dk Qk;nk ugha mBk ldrkA , vkb vkj 1999 ,l lh 1441 fufnZ"VA ¼iSjk 42
¼6½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 20¼2½ && vkaf'kd lank; ds fy, tkjh pSd foØ; djkj ds fuca/kuksa ds vuqlkj ykSVk;k x;k && izfrdj lanÙk && lafonk vfLrRo esa ugha jgrh && oknh fdlh vuqrks"k dk gdnkj ughaA 2017¼1½ e-iz- ohDyh uksV~l 80 ¼mPpre U;k-½ rFkk , vkb vkj 1998 2216 vuqlfjrA , vkb vkj 2003 fnYyh 15 fufnZ"VA ¼iSjk 42
¼7½ flfoy izfØ;k lafgrk] 1908 && vk-1 fu-10 && vkosnu fopkj.k U;k;ky; }kjk [kkfjt && oknh mPp U;k;ky; x;k && ;kfpdk [kkfjt && ;gh fook|d iqu% izFke vihy esa mBk;k ugha tk ldrkA ¼iSjk 42
1. This first appeal under section 96 of CPC has been filed by the plaintiff being aggrieved by judgment and decree dated 17.9.2002 passed by the Court of Special Judge (NDPS) and Additional District Judge, Gwalior, in Civil Suit No. 5-A/2002 between Jai Prakash Agrawal and Brahma Kumar Jutsi and one another, whereby suit of the plaintiff for specific performance of the contract has been dismissed.
2. This Court would like to first decide the preliminary objection, which was taken by the learned counsel for the appellant on 25.1.2018 to the effect that learned Additional District Judge was not justified in hearing the suit in absence of counsel for the plaintiff and suit should have been dismissed in terms of the provisions contained in Order 9 rule 8 of CPC. Though, no assistance has been extended by Shri Pawan Vijayvargiya, who had sought time to bring some case law on the subject on 25.1.2018, but since Shri R.D. Jain, learned Senior Advocate has proceeded with the arguments, this Court is duty bound to decide the objection, which was taken by the learned counsel on earlier date.
3. It was submitted by Shri Santosh Agrawal, who had appeared on 25.1.2018 that when plaintiff’s counsel was not appearing on the relevant date when arguments were heard, then learned trial Court was obliged to dismiss the suit in terms of the provisions contained in Order 9 rule 8 of CPC and was not required to decide it on merits.
4. Proceedings from the trial Court will reveal that on 5.2.2001 plaintiff and defendant were represented and case was fixed for evidence of the defendant, who was absent. Time was sought but it was objected by the plaintiff’s counsel, as a result case was fixed for final arguments. It was noted that in terms of the order passed by the High Court Bench at Gwalior in MCP No. 88/2000 on 7.8.2000 final judgment was not to be passed, therefore, case was adjourned without hearing final arguments waiting for final order of the High Court.
5. On 31.7.2001, an application under Order 6 rule 17 CPC was decided as was filed by the plaintiff and same was rejected. Thereafter, on 3.9.2002 it was noted that a copy of the order passed in Civil Revision No. 644/2000 between Jai Kumar v. Brahmakumar and others dated 14.8.2002 has been received, according to which, revision filed by the revision petitioner has been dismissed. In view of such order, it was noted that final arguments are to be heard and judgment is to be passed. Case was fixed for final arguments on 9.9.2002.
6. On 9.9.2002, learned counsel for the plaintiff had filed an application under Order 1 rule 10 read with section 151 of CPC on which arguments were heard and it was rejected holding that earlier similar application was rejected on 6.12.1999, a fact which was admitted by the learned counsel for the plaintiff also and thereafter case was fixed for final arguments on 14.9.2002. On 14.9.2002 nobody appeared for the plaintiff till 11.10 hours and therefore, case was directed to be listed after sometime. Case was taken up between 11.25 to 12.00 noon and as nobody appeared for the plaintiff, case was fixed for judgment on 16.9.2002 after hearing arguments of the defendant. On 16.9.2002, plaintiff had again appeared through counsel and had filed an application under section 151 of CPC. On this application, arguments were heard on 17.9.2002. On 17.9.2002, the trial Court noted that plaintiff’s counsel had filed such application under section 151 of CPC seeking time to challenge the order dated 9.9.2002 before the High Court whereby an application under Order 1 rule 10 read with section 151 of CPC was rejected and such time was refused by the trial Court and judgment was passed.
7. It is important to point out that neither on 16.9.2002 and 17.9.2002, learned counsel for the plaintiff made any prayer to give him any opportunity of advancing arguments in support of his plaint/case in which evidence was already complete. Thus, despite having sufficient opportunity, plai
