A.Mahalingam v. V.Jayalakshmi

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:-07.12.2018 THE HON'BLE MR.JUSTICE N.SATHISHKUMAR S.A.NO.153 OF 2012 A.Mahalingam ... Appellant/Plaintiff

Versus

V.Jayalakshmi ... Respondent/Defendant Second Appeal filed under Section 100 C.P.C. against the Judgment and Decree dated 28.06.2011 made in A.S.No.70 of 2010 on the file of the Principal District Judge, Erode, reversing the Judgment and Decree dated 01.06.2010 of Subordinate Judge, Dharapuram in O.S.No.113 of 2008.

For Appellant : Mrs.Chitra Maragatham For Respondent : Mr.S.Saravanan

JUDGMENT

This Second Appeal has been filed against the decree and judgment of the First Appellate Court modifying the Judgment and Decree of the trial Court.

2. The facts lead to file this Second Appeal is as follows: The Defendant viz., Tmt.V.Jayalakshmi entered into an agreement with the Plaintiff Mr.A.Mahalingam for sale of her property for a sum of Rs.7,54,770/- at the rate of Rs.1,81,000/- per acre. She received Rs.2,00,000/- as advance. As per the contract, the balance sale consideration will be paid within four (4) months. The Plaintiff is always ready and willing to perform his part of contract. However, he sustained heavy loss in his business, he could not pay the remaining sale consideration. Therefore, he approached the Defendant to return the advance amount. But the Defendant did not comply with the request of the Plaintiff. Hence, the Plaintiff issued legal notice and thereafter filed filed the suit.

3. It is the contention of the learned counsel for the Defendant that in the agreement there is a recital that in case

of any failure on the part of the Plaintiff to pay the balance sale consideration and execute sale deed, the advance amount paid by him will be forfeited. The Defendant was always ready and willing to perform his part of contract. Only the plaintiff evaded to perform his part of obligation. Since the sale agreement expired on 22.06.2007, the allegation that the Plaintiff incurred loss in his business and claim of refund of advance amount cannot be accepted. Hence, prayed for dismissal.

4. The trial Court has framed the following issues:

1. Whether the plaintiff is entitled to recover the advance amount as claimed in the Plaint?

2. What other relief the Plaintiff is entitled to?

5. On the side of the Plaintiff, two witnesses were examined and 5 exhibits were marked. On the side of the Defendant, 2 witnesses were examined and 2 documents were marked. Considering the materials and evidence, the trial court decreed the suit for refund of Rs.1,80,000/- with interest at the rate of 6% per annum from 1.9.2007 till the date of realisation with costs. Thereafter, the plaintiff filed appeal challenging the decree and judgment on the ground that in the absence of any pleadings or evidence of the defendant, the lower court deducted a sum of Rs.20,000/- from the advance sale consideration as damages to the defendant is erroneous and contrary to law. The First Appellate Court after hearing the arguments modified the decree, directed the defendant to repay the advance amount in full and deleted the interest and cost, against which the present Second Appeal has been filed.

6. While admitting the Second appeal, this Court has framed the following questions of law:

(i) Whether the District Judge right in modifying the decree of the trial Court especially with reference to the interest without an appeal or cross appeal filed at the instance of the defendant?

ii) Is the District Judge right in negativing the relief of charge while modifying the decree of the Trial Court?

7. The learned counsel for the appellant submitted that admittedly the defendant has not challenged the decree and judgment of the trial Court. Of course the appeal is filed by the Plaintiff. That being the position, the First Appellate court ought not to have modified the decree of the trial Court.

In support of her contention the learned counsel for the Appellant has relied the Judgment of the Honourable Supreme Court reported in (2007) 3 MLJ 894 (SC) [Nathuni Ram v. Raghupat Ram and Others]

8. Whereas the learned counsel appearing for the Respondent submitted that the Plaintiff having failed to perform his part of contract he is not entitled to refund of the advance amount. Hence, submitted that the First Appellate Court took note of the above and modifed the judgment.

9. Heard both sides. It is not in dispute that the agreement was entered between the parties and the advance payment of Rs.2,00,000/- was also received by the Defendant. Though there is a condition in the agreement to perform the part of the contract four months period was stipulated to pay the balance sale consideration, due to huge loss in business, the Plaintiff could not mobilise the balance sale consideration. Therefore, he requested the Defendant to return the advance amount or to execute a sale deed for a portion of the land. Since the Defendant did not accept for the same, he filed a suit for recovery of advance amount. The trial Court considering the respective pleadings and evidence, decreed the suit for refund of Rs.1,80,000/- with interest at the rate of 6% per annum from 1.9.2007 till the date of realisation with cost.

10. It is to be noted that the trial court has also took note of the non-performance on the part of the Plaintiff and deducted a sum of Rs.20,000/- from the advance amount and passed the decree only in respect of Rs.1,80,000/-. The judgment of the trial court was not challenged by the Defendant nor any cross appeal filed. Only the Plaintiff assailed the above judgment for reducing Rs.20,000/- advance amount and also for costs. The First Appellate Court, without being any challenge made by the Defendant on the decree of the trial Court, without there being any cross appeal, has modified the decree of the trial Court. In this regard, it is useful to refer the Judgment of the Honourable supreme Court reported in (2007) 3 MLJ 894 (SC) [Nathuni Ram v. Raghupat Ram and Others] in which the Honourable Supreme Court has held as follows: "4.

...

...

...

The following question was formulated in the second appeal treating the same to be a substantial question of law.

"Whether the Court of appeal below erred in law in rejecting plaintiff's claim over 14 decimals out of total 36 decimals land of plot No. 51, when

Raiyati Settlement obtaining in 1342 Fasli was not negatived."

5. It is to be noted that the defendants had not questioned correctness of the judgment and decree of the first appellate Court. Hereafter starts the confusion. Though the defendants had not questioned correctness of the view expressed by the first appellate court and even had not tried to support the conclusions during hearing of the second appeal filed by the appellant, yet the High Court set aside the order of the first appellant court and consequentially confirmed the judgment of the trial court. As if that was not enough, in the ultimate conclusion the High Court noted that the appeal filed by the appellant was allowed. In fact the relief that was granted to the appellant by the first appellate court was reversed.

6. In support of the appeal learned counsel for the appellant submitted that the course adopted by the High Court is clearly contrary to law. Admittedly there was no appeal questioning the first appellate court's view regarding appellant's entitlement to 22 decimals of land. In the absence of an appeal by the defendants it was not open to the High Court to take a contrary view.

7. Learned counsel for the respondents fairly conceded that there was no appeal filed by them so far as the relief granted by the first appellant court i.e. 22 decimals of land. It was also fairly conceded that there was no stand taken by them before the High Court to the effect that the relief granted to the appellant was not legal.

8. As noted above there are confusions galore in the High Court's order; firstly the appeal was dismissed but the first appellate court's order which was in favour of the appellant was set aside without any challenge from the defendants ; secondly in the appellant's appeal the relief which was not questioned by

anybody could not have been nullified; thirdly, the High Court's ultimate conclusion was that the appeal was allowed while it was otherwise."

11. Having regard the above judgment, the First Appellate Court when there is no appeal or cross appeal questioning the trial Court's finding, ought not to have modified the findings of the trial Court. Therefore, modifying the order of the Fist Appellate Court cannot be sustained in law and accordingly the same is set aside. The decree and judgment of the trial Court stand confirmed. Appeal is allowed. There is no order as to costs.

Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar ggs.

Copy to:

1. The Principal District Judge, Erode,

2. The Subordinate Judge, Dharapuram +1cc to Mr.T.R.Rajaraman, Advocate, S.R.No.84738 +1cc to Mr.S.Saravanan, Advocate, S.R.No.84721 S.A.No.153 of 2012 RSI(CO) CS/26/04/2019