Calcutta High CourtFMAT/2/2024dismissed

K. Meena Kumari v. Koyye Mahanlyamma

2025-12-23Hon'Ble Justice Bivas Pattanayak43 pages

IN THE HIGH COURT AT CALCUTTA

CIRCUIT BENCH AT PORT BLAIR CIVIL APPELLATE JURISDICTION APPELLATE SIDE PRESENT:

THE HON'BLE JUSTICE BIVAS PATTANAYAK FMAT 2 of 2024 Smti. K. Meena Kumari versus Smti. Koyye Mahanlyamma With FMAT 3 of 2024 Smti. K. Meena Kumari versus Smti. Koyye Mahanlyamma For the Appellant :

Mr. K. M. B. Jayapal, Advocate For the Respondent :

Mr. N. A. Khan, Advocate Heard on :

17.06.2025, 18.06.2025, 19.06.2025, 20.06.2025 Judgment on :

23.12.2025 Bivas Pattanayak, J. :- 1.

These appeals are preferred against two separate judgment and decree dated 29th February 2024 passed by the learned First Appellate Court namely the learned Additional District Judge, Andaman and Nicobar Islands, thereby allowing the First Appeal registered as Other Appeal no.8 of 2018 as well as Other Appeal no.9 of 2018 preferred by substituted defendant thereby remanding the suit as per the provisions of Order XLI Rule 23A of the Code of Civil Procedure (hereinafter referred to as the 'Code') upon framing of additional issues.

The appellant- plaintiff filed a suit for specific performance of contract against K. Satyam, the predecessor-in-interest of the respondent, being

Other Suit No. 28 of 2011 and contended as follows. The plot survey No.47 admeasuring 200 sq.mtr. (70ft in length and 30ft in breadth) situated at South point village under Port Bair Tehsil, District South Andaman (hereinafter referred to as 'the suit property') is recorded in the name of defendant K. Satyam. On 4thDecember 1990 the said defendant K. Satyam executed one General Power of Attorney, in presence of attesting witnesses, thereby nominating and appointing K. Sunder Rao as his lawful attorney to do all acts, deeds, things in respect of the suit property including authorising him to sale the suit property. On 14thDecember 1990, the defendant agreed to sale the suit property to the plaintiff for consideration of Rs.40,000/-. The plaintiff paid a sum of Rs.

15,000/-in cash as advance and was put into vacant possession of the suit property by K. Satyam. As per the agreement for sale, an amount of Rs.5,000/- of the remaining Rs. 25,000/-was to be paid on or before 10th January 1991 after obtaining necessary permission and the balance amount of Rs.20,000/-was to be paid by the end of December 1991. At the time of execution of the agreement for sale, the power of attorney holder Shri K. Sunder Rao was present and he was authorised to take necessary steps for honouring the agreement as aforesaid by executing a deed of sale. The plaintiff had also paid the sum of Rs.5,000/-on 14thDecember 1990 upon an endorsement of the receipt on the agreement for sale itself. Since execution of the agreement for sale, the plaintiff is in possession of the suit property.

agreement for sale. On being constrained by such circumstances, the plaintiff sent a legal notice to the defendant for execution and registration of the deed of sale in respect of the suit property. The plaintiff is ready and willing to perform her part of agreement for sale. Accordingly, the plaintiff prayed for following orders namely (i) a decree directing defendant to execute and register the sale deed in respect of the suit property in favour of the plaintiff with an alternative prayer for directing the defendant to refund Rs.40,000/-to the plaintiff along with interest @ 16% per annum from 14th December 1990 till realisation; (ii) a decree declaring the agreement for sale dated 14th December 1990 by K. Satyam as valid and enforceable in the eye of law and (iii) temporary injunction restraining the defendant, his servant , his agent, men from disturbing and/or interfering with the peaceful possession of the plaintiff over the suit property. 3.

The aforesaid suit was keenly contested by the defendant K. Satyam before the learned trial court by filing written statement along with counter claim, through one Mani Kumari, the power of attorney holder of the defendant, denying, inter alia, the material allegations and contended as follows. The land in question i.e. the suit property was regularised in favour of the defendant by the Andaman & Nicobar Administration and license was issued in his favour on 6th July 1989 subject to deposit of premium of Rs.4,000/-. The defendant consequently deposited the aforesaid premium vide challan no. 133(TPB) RC No.IX 10/B-37(A) 58/94. Due to his health problem and old age ailments, the defendant left the island. During his absence the defendant permitted the father of the plaintiff along with his family to reside in his house. The defendant

returned on 15th September 2011 and found the father of the plaintiff in permissive possession of the suit property. The father of the plaintiff assured the defendant that he will vacate the structure and the land of the defendant and sought for some time. Since the suit property was not vacated, the defendant made a complaint to the Tehsildar, Port Blair for eviction of the plaintiff's family and prayed for demarcation of the land. The defendant also filed an application before the Tehsildar on 26th March 2010 informing that he was going to the mainland for treatment and would return in September 2011 along with his wife. The defendant also approached the revenue authorities for conducting demarcation of the subject land.

In the meantime, the defendant came to learn from reliable sources that the plaintiff in connivance with her father filed the instant suit on the strength of alleged Power of Attorney and an agreement for sale. The father of the plaintiff representing himself as the power of attorney holder of the defendant committed mischief in connivance with the plaintiff by submitting a reply in response to a legal notice of the plaintiff stating that he is ready to register the deed of sale in favour of the plaintiff. That apart the father of the plaintiff also submitted an application under order XII Rule 6 of the Code supported by an affidavit with a prayer for a decree on admission. Fact remains that no such Power of Attorney dated 4th December 1990 was executed by K. Satyam in favour of father of the plaintiff namely Shri K.

Sunder Rao and the document particularly the agreement for sale dated 14th December 1990 is forged and fabricated one which was never executed by defendant. Shri K.

of the plaintiff was permitted to occupy the structure during the temporary absence of the defendant for his medical treatment. The defendant denied the construction of a single storied dwelling house by the plaintiff over the suit property. The defendant prayed for following orders namely (i) a decree be passed declaring that the defendant never executed any deed of agreement dated 14th December 1990 in favour of the plaintiff and same is false and fabricated document declaring the same as null and void; (ii) a decree be passed declaring that the defendant never executed any General Power of Attorney on 4th December 1990 in favour of K. Sunder Rao authorising him to act on his behalf and the same is false and fabricated document declaring the same as null and void ; (iii) a decree declaring that the father of the plaintiff was put in permissive possession of the suit property during temporary absence of the defendant and (iv) a decree for eviction of plaintiff or any of her family members from plot No.47 i.e. the suit property.

Upon considering the respective pleadings of the parties, the learned trial court framed and recast the following issues. (i) Whether the suit is maintainable in its present form and law or not? (ii) Whether the suit is barred by law of limitation or not? (iii) Whether the defendant executed any agreement for sale in favour of the plaintiff or not?

(iv) Whether the agreement for sale dated 14th December 1990 is binding upon the defendant or not?

(v) Whether the plaintiff is in permissive possession over the suit property or not? (vi) Whether the defendant authorised K.Sunder Rao by way of power of attorney to sue or be sued or not?

(vii) Whether the plaintiff is liable to vacate the suit schedule property or not? (viii) Whether the plaintiff is entitled to get the decree in respect of relief of specific performance of contract of sale or not?

(ix) Whether the plaintiff is entitled to get the decree as prayed for or not? (x) To what other relief or reliefs, the plaintiff is entitled to get? (xi) Whether the defendant to get any decree in respect of counter claim or not?

The learned trial court decided issues no. (i) to (vi), (viii) to (x) in favour of the plaintiff and did not dispose of issue no. (vii) and (xi), and decreed the suit for specific performance of contract in favour of the plaintiff on 22nd February 2018 as follows:

"that the instant suit be and the same is decreed against the defendant/K.Satyam.

The plaintiff is directed to deposit the remaining amount of sale consideration of Rs.35,000/- (Rupees thirty-five thousand) only in favour of the defendant; if the defendant denied to accept the same then the plaintiff is at liberty to deposit the same before the court; within three months from the date of passing of this judgement and order; defendant/K.Satyam is hereby directed to be execute and register the deed of sale in favour of the plaintiff in respect of the suit schedule property within three months from the date of passing of this judgement and order; defendant is at liberty to withdraw the amount from the court, if the defendant executed and register the deed of sale in favour of the plaintiff/K.Meena Kumari in that event plaintiff is at liberty to put this order into execution."

Being aggrieved by and dissatisfied with the impugned judgment and decree of the learned trial court the defendant preferred two appeals being Other Appeal 8 of 2018 and 9 of 2018 respectively. The appeal being no. 8 of 2018 was preferred against the judgment and decree passed for specific performance of contract in favour of the plaintiff and appeal being no.9 of 2018 was preferred for allowing the prayer of the defendant for counterclaim. Both the appeals were disposed of by separate judgments on 29th February 2024 with similar directions. The First Appellate Court ordered as follows.

" Be that as it may, considering the totality of the facts, circumstances and material on record, the impugned judgement and decree dated 22.02.2018 passed by learned Civil Judge (Junior Division-I), Port Blair in other suit 28/2011 are set aside and the matter is remanded back under order XLI Rule 23(A) of CPC for a retrial on open remand for further evidence by the parties in respect of the power of attorney and agreement for sale dated 14.12.1990, thereby, giving liberty to the parties to adduce further evidence on the issues and the two additional issues i.e " Whether the transaction in this case relied upon by the plaintiff on the basis of power of attorney and agreement for sale dated 14.12.1990 is a sham transaction? And "Whether any fraud has been played upon the defendant?'. The parties be given an opportunity

to contest the suit, as also the Ld. Trial Court to appreciate the evidence by the parties for ascertaining the nature of alleged possession over the suit schedule property and in that eventuality, it is deemed appropriate that the instant case be remanded back before the Ld. Trial Court for adjudication afresh and thereafter hearing the parties and pass a reasoned and speaking judgement and decree on the issues framed and additional issues by the Ld. Trial Court.

The impugned judgement and decree dated 22.02.2018 passed by the Ld.Civil Judge (Junior Division-I), Port Blair in Other Suit no. 28 of 2011 Titled Meena Kumari Vs K.Stayam is found to have been passed without considering the law, facts, pleadings, evidence on record and as such the same is hereby set aside with a direction for open remand of the suit and counter claim.

Hence, it is Ordered That the instant other appeal being no.08 of 2011, Tilted Smt Koyye Mahanlyamma, W/o Late K.Satyam, (through power of attorney holder) Smt Mani Kumari, W/o Shri Nadhu Vs Meena Kumari is allowed in part on contest but without any order as to cost.

Resultantly, the impugned judgement and decree dated 22.02.2018 passed by the Ld.Civil Judge (Junior Division-I), Port Blair in Other Suit no. 28 of 2011 Titled Meena Kumari Vs K.Stayam is said aside with an open remand back of the other suit for fresh consideration. Accordingly, the cases remanded back to Ld. Trial Court for fresh consideration before the Ld. Trial Court for adjudication afresh and thereafter hearing the parties and pass a reasoned and speaking judgement and decree on the issues framed and additional issues by the Ld. Trial Court.

The Ld. Trial Court to decide the case upon remand without being influenced in any manner whatsoever by any observation made in this judgement as the record of the trial court has been scrutinised for the limited purpose of deciding the instant appeal in view of the open remand of the case.

Since the instant proceeding was filed before the Ld. Trial Court way back on 27.06.2011 and it was decided on 28.02.2018 and the instant appeal was filed in the year 2018. Hence, the parties are litigating since last more than 13 years, thus, the matter is required to be decided by Ld. Trial Court at the earliest and for this purpose, I deem it appropriate to request the Ld. Trial Court to decide the instant suit on open remand at the earliest without granting any unnecessary adjournment to any of the parties."

The aforesaid judgment and decree of the First Appellate Court passed in separate appeals have been challenged by way of two separate appeals before this court which have been heard analogously on the following substantial questions of law.

In FMAT 2 of 2024 the substantial questions are reproduced hereunder.

(a) Whether the learned First Appellate Court was justified in passing the impugned judgment/decree reversing the judgment and decree of the learned Trial Court by remanding the suit for de novo hearing under Order XLI Rule 23A of the Code of Civil Procedure, 1908 upon framing of two issues namely: (i) Whether the transaction in this case relied upon by the plaintiff on the basis of Power of Attorney and agreement for sale dated 14thDecember, 1990 is a sham transaction; and (ii) Whether any fraud has been played upon the defendant without and in absence of any specific defense raised in written statement by the defendant taking such plea before the learned Trial Court.

(b) Whether the learned First Appellate Court erred in law by reversing the judgment and decree of the learned Trial Court by holding that in order to prove agreement for sale Exhibit 2, there is a non-compliance of Section 68 of the Indian Evidence Act. (c) Whether the learned First Appellate Court is justified in reversing the judgment and decree of the learned Trial Court based on irrelevant adjudication as regards the execution of the Deed of Power of Attorney by ignoring the relevant consideration about the factum of agreement for sale dated 14thDecember, 1990 having been duly proved in accordance with law during the course of the hearing of the suit by the Plaintiff.

contract was not instituted based on pre-suit notice and thereby held that the suit to be not maintainable and is having no cause of action.

(e) Whether the First Appellate Court was justified in exercising the power under Order XLI Rule 23A of the Code of Civil Procedure, 1908 without there being any ground urged and raised by the respondents/defendant in such appeal about the requirement of reception of additional evidence under Order XLI Rule 27 of the Code of Civil Procedure, 1908.

(f) Whether the learned First Appellate Court was justified in reversing the judgment and decree of the learned Trial Court without deciding the appeal on its merit based on available material on record of the learned Trial Court in ignorance of the settled proposition of law as laid down that the power to remand by Appellate Court under the provisions of Order XLI Rule 23 and Rule 23A of the Code of Civil Procedure, 1908 has to be exercised sparingly subject to fulfilment of condition as laid down under Order XLI Rule 24 and 25 of the Code of Civil Procedure, 1908.

In FMAT 3 of 2024 the substantial questions of law are as follows: (a) Whether the First Appellate Court erred in law by reversing the judgment and decree of learned Trial Court in failing to appreciate that even without filing a written statement as against the counter claim of the defendant, which is not maintainable in view of Order VIII Rule 6 C of the Code of Civil Procedure, 1908,

the plaintiff could succeed in proving the plaint case based on cogent and convincing evidence adduced before the learned Court below as to the averments of the plaint. (b) Whether the learned First Appellate Court is justified in reversing the judgment and decree of the learned Trial Court without the averment of counter claim having been proved by the defendant about that the possession of plaintiff over the suit land as permissive in character.

(c) Whether the First Appellate Court erred in law reversing the judgment and decree of the learned Trial Court dismissing the counter claim of defendant for non-compliance of provision of Order VI Rule 4 of the Code of Civil Procedure, 1908 as regards the absence of plea of fraud committed upon the defendant with particulars and details in his pleadings under Order VIII Rule 6A of the Code of Civil Procedure, 1908 on the basis whereof decree of eviction of plaintiff has been sought.

(d) Whether the First Appellate Court erred in law reversing the judgment and decree of learned Trial Court in complete transgression of law that the issue as raised in the counter claim by the defendant seeking eviction of plaintiff from the suit land based on alleged permission possession could be effectively adjudicated in an independent suit and not by way of counter claim as per Order VIII Rule 6C of the Code of Civil Procedure, 1908.

(I) SUBSTANTIAL QUESTIONS OF LAW Nos. (b) and (c) in FMAT 2 of 2024 (b) Whether the learned First Appellate Court erred in law by reversing the judgment and decree of the learned Trial Court by holding that in order to prove agreement for sale Exhibit 2, there is a non-compliance of Section 68 of the Indian Evidence Act?

(c) Whether the learned First Appellate Court is justified in reversing the judgment and decree of the learned Trial Court based on irrelevant adjudication as regards the execution of the Deed of Power of Attorney by ignoring the relevant consideration about the factum of agreement for sale dated 14th December, 1990 having been duly proved in accordance with law during the course of the hearing of the suit by the Plaintiff?

10. Both the aforesaid questions being inter-related are taken up together.

10.1. Mr. K.M.B Jayapal, learned advocate for the appellant-plaintiff submitted that the finding of the First Appellate Court that the agreement for sale has not been proved as per provisions of section 68 of Evidence Act, 1872 is contrary to law. Section 68 of the Evidence Act applies to those documents which require attestation and in order to prove the execution of such a document one has to examine at least one attesting witness. The agreement for sale dated 14th December 1990 is not a document falling under section 68 of Evidence Act which requires attestation and therefore the question of proving the same by attesting witness does not arise at all. The appellant-plaintiff in order to seek attendance of K. Satyam for obtaining his specimen signature for comparing his signature appearing in the agreement for sale dated 14th December 1990 (Exhibit 2) and Power of Attorney (Exhibit 1), filed an application before the learned trial court which was rejected. The appellant-plaintiff also filed an application to examine K. Satyam as

plaintiff's witness under Order XVI Rule 21 of the Code however the same was also rejected by the learned trial court. Thus, the appellant-plaintiff has made several endeavours to prove the said agreement for sale but failed in her attempt. The First Appellate Court could have compared the signature of K. Satyam appearing in the agreement for sale (Exhibit 2) with Power of attorney (Exhibit 1) since a court is an expert of experts as per Section 45 of the Evidence Act.

10.2. In reply to the contentions raised on behalf of the appellant-plaintiff, Mr. N.A Khan, learned advocate for the respondent-defendant submitted that the learned trial court wrongly relied upon the agreement for sale (Exhibit 2) which was not proved as per the provisions of the Evidence Act. Neither the scribe nor any attesting witness to the agreement came before the court to prove the contention of the document which was executed in their presence. Therefore, the agreement for sale (Exhibit 2) has got no evidentiary value in the eye of law. Mere marking of a document is not sufficient until and unless the execution of the document is proved along with its contents.

10.3. Upon going through the judgment of the learned First Appellate Court, it is found that it has held that the Agreement for Sale namely Exhibit 2 has not been proved in compliance with Section 68 of the Indian Evidence Act.

10.4. For the sake of convenience of discussion section 68 of the Evidence Act is reproduced hereunder:

"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for

the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." 10.5. Section 68 of the Evidence Act applies only to documents which are required by law to be attested by witnesses, such as wills. The words 'required by law' apply to documents, which, by statute are required to be attested. The law as to attestation of documents is contained in various enactments.

Thus, that relating to attestation of wills is contained in Section 63 (c) of the Indian Succession Act. The mode of proving documents required by law to be attested has been laid down in Section 68 to 72 of the Indian Evidence Act. If, however, a document which is not required to be attested but the parties get it attested by witnesses, this superfluous act does not attract the provisions of this section. When a document is produced and tendered as evidence, the first point for consideration is whether it is one which the law requires to be attested. The general object is to give effect to the law relating to the attestation of documents, which is itself enacted for the purpose of ensuring the genuineness of certain documents in respect of which claims are made.

The law as laid down in section 68 is imperative and does not, on the face of it, admit any relaxation except in the cases provided for in Sections 69 to 71.

evidence) the document required by law to be attested shall not be used in evidence.

10.6. In the backdrop of the provisions as above, let me examine whether the agreement for sale requires to be proved by attesting witnesses. The document in question in the present case at hand is an agreement for sale. As per Sections 68 to 71 of the Indian Evidence Act, the proof of the signatures of the attesting witnesses is necessary only when the document is required by law to be so attested. In case, the document does not require attestation, Sections 68 to 71 would be of no avail. This is clear from Section 72 of the Indian Evidence Act. As per Section 72 of the Indian Evidence Act, an attested document, that is not required to be attested, would have to be proved as if it were unattested. An agreement of sale is not a document which requires attestation. Therefore, the proof that would be required as per Section 72 would be dehors the attestation in the said document.

10.7. Thus, it has been rightly argued on behalf of the appellant-plaintiff that Section 68 of the Indian Evidence Act has no manner of application so far as proving Agreement for Sale is concerned. 10.8. Be that as it may, at this stage it would be profitable to reproduce section 67 of the Evidence Act as hereunder.

"67. Proof of signature and handwriting of person alleged to have signed or written document produced. --If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting."

10.9. This section does not lay down any specific mode of proof, and therefore the execution of a document being a question of fact, can be

proved like any other fact by circumstantial evidence as well but the circumstantial evidence must be sufficiently strong to carry conviction. Such evidence may consist of the internal evidence contained in the document itself and the oral evidence of witnesses who may prove other surrounding circumstances. We have already discussed that section 68 deals with the proof of the execution of the document required by law to be attested and provides that such a document shall not be used as evidence until at least one attesting witness has been called upon for proving its execution. Where the documents by law not required to be attested, the provisions of section 67 would apply. (See Ramibai versus Life Insurance Corporation of India1).

If the genuineness of the contents or correctness of the contention of the document controverted, proof of contents as required by section 67 is insisted upon. The requirement in section 67 is only that the handwriting was proved to be that of the person concerned. In order to prove the identity of the handwriting, any mode not forbidden by law can be resorted to. Of course, two modes are indicated by law in sections 45 and 47 of the Evidence Act. The former permits expert opinion to be regarded as relevant evidence and the later permits opinion of any person acquainted with such handwriting to be regarded as relevant evidence.

expert; (v) by comparing, the disputed signature or writing with some admitted signature; (vi) by proof of an admission by the person who is alleged to have signed or written the document that he signed and wrote; (vii) by the statement of the professional scribe that his signature on the document is that of a particular person.

10.10. It appears from the materials on record that the Agreement for Sale tendered by the plaintiff has been marked as Exhibit. However, mere marking of a document does not amount to proof of the same. Insofar as the burden of proof with respect to an agreement of sale is concerned, the issue has been settled by the Judgment of the Hon'ble Supreme Court in Thiruvengadam Pillai versus Navaneethambal and Another2. In the said judgment, the Hon'ble Supreme Court held that where the plaintiff come to the Court alleging that the defendant had executed an agreement of sale in his favour and the defendant denies the execution of such agreement, then the burden of proof is on the plaintiff to prove the existence of the agreement.

Therefore, there cannot be any quarrel that the document namely the agreement for sale has to be proved by the plaintiff in accordance with law. None of the witness to the agreement has been examined in Court or the scribe or any person acquainted with the signature of the executant. One cannot be oblivious to the fact that the plaintiff in her evidence has admitted that the agreement for sale does not have the signature of K. Satyam, the owner of the property and K. Sundar Rao, holder of the alleged Power of Attorney.

proved in accordance with law by cogent evidence i.e. by examining the witnesses to the agreement. The witnesses to the said agreement have not been examined, particularly in a situation, when the defendant has raised the issue that it is fabricated and forged document. 10.11. The learned Trial Court has proceeded with the suit rather on an assumption that the agreement for sale since has been marked exhibit and the defence witness could not disprove it and there is no challenge to the contents of the agreement for sale, Exhibit 2, hence it stood proved. It is settled proposition of law that the burden of proof lies on the plaintiff to prove such document and he has to discharge the same and cannot bank on any lacuna of the defendant.

On such score the learned trial court failed to appreciate that the witnesses to the documents have not been examined to establish primarily the execution of the agreement. Furthermore, contending that the document is fabricated and forged in the written statement itself is a challenge to the contents as well as the entirety of the document in question. She has further in cross examination admitted that the agreement for sale also does not bear the signature of the owner of the property namely K. Satyam and the Attorney Holder namely K. Sundar Rao, which moreso makes it imperative for the plaintiff to establish the genuineness of execution of the said document. 10.12. Similarly, with regard to the Power of Attorney, it is stated in the plaint that the same has been executed on 4th December, 1990.

The plaintiff (PW1) in her evidence-in-chief has also deposed that the Power of attorney was executed on 4th December 1990.

dated 14th December, 1990. The plaintiff (PW1) herself in her cross examination has stated that the Power of Attorney does not have the signature of the Attorney Holder. There is no satisfactory explanation given by the plaintiff with regard to such discrepancy in the date of execution of said Power of Attorney. The learned First Appellate court has observed that the non-judicial stamp paper of Rs. 5/- under serial number 6164 and 6164/2 dated 13th December, 1990 have been used for the purpose of preparing the said Power of Attorney which is dated 14thDecember, 1990. It has raised a pertinent question as to how the non-judicial stamp paper of 13th December, 1990 could be used for execution of Power of Attorney on 4th December, 1990. No witnesses to the execution of the Power of attorney has been examined to prove the legality and validity of its execution. One cannot be oblivious to the fact that the defendant in his written statement and counter claim has also claimed the said Power of attorney to be fabricated and forged one and sought for declaring it to be null and void.

10.13. In the case of K. Prakash versus B.R. Sampath Kumar3, the Hon'ble Supreme Court held:

16. The principle which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance: that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or the other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as 3 (2015) 1 SCC 597

contemplated under Section 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless, once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established then the court has to exercise its discretion in favour of granting relief for specific performance." 10.14. Reference may also be made to the decision of Zarina Siddiqui versus A. Ramalingam4, Hon'ble Supreme Court observed as under:- "33. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misleads the court then such discretion should not be exercised by refusing to grant specific performance."

10.15. Bearing in mind the aforesaid proposition of law as laid down, it is settled that in a suit for specific performance of a contract the necessary ingredient has to be proved and established by the plaintiff so that discretion could be exercised judiciously by the Court in favour of the plaintiff.

10.16. It has been strenuously argued on behalf of the appellant-plaintiff that witness Manu Kumari (DW1), who is the Power of Attorney Holder of the original defendant K. Stayam has never denied the signature of K. Satyam on agreement for sale dated 14th December 1990 (Exhibit 2) rather she deposed that she cannot say whether the signature of K. Satyam is appearing on Exhibit 2. Though the agreement for sale (Exhibit

2) was marked with objection but the respondent herein could not sustain such objection.

10.17. The aforesaid aspect as raised on behalf of the appellant-plaintiff does not and cannot construe to establish and prove the execution of the 4 2015 (1) SCC 705

agreement for sale without there being proof of its execution by cogent evidence. Hence such argument advanced on behalf of the appellantplaintiff does not stand to reason. 10.18. In view of the above discussion the aforesaid substantial questions of law is decided against the appellant-plaintiff. (II) SUBSTANTIAL QUESTION OF LAW No.

(a), (e), and (f) in FMAT 2 of 2024 (a) Whether the learned First Appellate Court was justified in passing the impugned judgment/decree reversing the judgment and decree of the learned Trial Court by remanding the suit for de novo hearing under Order XLI Rule 23A of the Code of Civil Procedure, 1908 upon framing of two issues namely: (i) Whether the transaction in this case relied upon by the plaintiff on the basis of Power of Attorney and agreement for sale dated 14th December, 1990 is a sham transaction; and (ii) Whether any fraud has been played upon the defendant without and in absence of any specific defense raised in written statement by the defendant taking such plea before the learned Trial Court.

11. Mr. Jayapal, learned advocate appearing for the appellant-plaintiff at the outset submitted that the First Appellate Court by the impugned judgment set aside the judgment and decree of the learned Trial Court and remanded the suit as per provisions of Order XLI Rule 23A of the Code on

framing certain additional issues. When sufficient evidence was available on record, the First Appellate Court ought to have passed order upon considering the same rather than remanding the suit for denovo trial and directing the learned Trial Court to re-write the judgment. Moreover, no application under Order XLI Rule 27 of the Code for additional evidence was taken out by the respondent-defendant on ground that such evidence could not be produced despite of due diligence. In the absence of such application the First Appellate Court ought not to have remanded the suit as an open remand particularly when there was no material on record to suggest that the learned Trial Court failed to determine any question of facts or omitted to frame any vital issues while deciding the suit which is a requirement under Order XLI Rule 25 of the Code.

Generally, an order of remand should be avoided since the same results in pendency of the suit. The order of remand of suit can be passed by an appellate court but it should be tested with reference to Order XLI Rule 25 of the Code. In support of his contention, he relied on the decision of Hon'ble Supreme Court in (i) P. Purushottam Reddy and another versus Pratap Steels Limited5; (ii) K. Krishna Reddy and others versus Special Deputy Collector, Land Acquisition Unit-II, LMD, Karim Nagar, Andhra Pradesh6.

11.1. Mr. Khan, learned advocate for the respondents-defendants, in reply, submitted that plaintiff filed the suit for specific performance of contract dated 14th December 1990. The appellant-plaintiff sued the defendant on 5 (2002) 2 SCC 686 6 (1988) 4 SCC 163

being represented by his power of attorney holder K. Sunder Rao. Prior to filing of the suit the appellant-plaintiff issued a legal notice on 21st April, 2011 to the alleged power of attorney holder. By his reply dated 17th May, 2011 the power of attorney holder K. Sunder Rao, who is none else but father of the appellant-plaintiff, agreed to register sale deed in favour of the plaintiff. There cannot be any cause of action when the father of the plaintiff, being the power of attorney holder of the defendant agreed to register the sale deed. The said power of attorney holder appeared before the court through a learned advocate and filed an application under Order XII Rule 6 of the Code for judgment on admission.

The suit for specific performance of contract is filed by appellant-plaintiff with the motive to get a favourable decree surreptitiously to a sham transaction which was settled between the father and daughter to grab the property of the original defendant K. Satyam. It is mentioned in the plaint that the alleged power of attorney holder Shri K. Sunder Rao replied to the notice issued by the appellant-plaintiff admitting the claim of the plaintiff.

Upon knowledge of such activities of hand in glove of father and daughter to take over his property he came back to the island from the mainland where he was undergoing treatment and appeared before the learned trial court through a registered power of attorney holder Smt Mani Kumari and also filed an application under section 340 of the Criminal Procedure Code (in short, 'CrPC') against Shri K. Sunder Rao. However, the said application was rejected by the learned trial court. The said order was challenged before the Hon'ble Court in CR No.

and file an affidavit indicating that he has appointed the learned advocate as also his constituted attorney and once he appears the court shall permit the constituted attorney to take steps in the suit on behalf of the defendant. Pursuant to the said order the original defendant appeared before the learned trial court and filed affidavit and upon being satisfied the learned trial court permitted the defendant to be represented by his power of attorney holder Smt Mani Kumari. The defendant filed written statement with counter claim through his power of attorney holder which was accepted by the learned trial court with the contention that the alleged power of attorney and the agreement for sale are forged and fabricated document.

The appellant-plaintiff did not file any written statement against the counter claim of the respondent-defendant. It is settled principles of law that when no written statement is filed by the party concerned, the court may pronounce judgment against the said party. The learned trial court did not decide such counter-claim of the defendant on merit. The First Appellate Court was correct in directing for open remand. 11.2. In order to examine the aforesaid substantial questions of law the provisions of Order XLI Rule 23, Rule 23 A, Rule 24, Rule 25, and Rule 26 is reproduced hereunder.

"23. Remand of case by Appellate Court.-Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. [23A. Remand in other cases.-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is

considered necessary, the Appellate Court shall have the same powers as it has under rule 23.

24. Where evidence on record sufficient Appellate Court may determine case finally.-Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgement, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.

25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.-Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore [within such time as may be fixed by the Appellate Court or extended by it from time to time].

26. Findings and evidence to be put on record. Objections to findings.-(1) Such evidence and findings shall form part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding.

(2) Determination of appeal.-After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal."

11.3. Rules 23, 23A, 24, 25, and 26 of Order XLI of the Code deal with the remand of cases by the Appellate Court. Rule 23 deals with a case of remand where the suit has been disposed of on a preliminary point. Rule 23 A, which was inserted by the amendment of the Code in the year1976, deals with the powers of the Appellate Court with regard to remand in cases disposed of otherwise than on a preliminary point and provides that the Appellate Court shall have the same powers of remand as under Rule

23. Rule 24 enables and empowers the Appellate Court if the evidence on record is sufficient to pronounce judgment even after resettling the issue, if necessary. Rule 25 deals with cases where it appears to the Appellate Court that the Trial Court has omitted to frame or try an issue or to determine any question of the suit on merits, the Appellate Court may, if

necessary, frame such an issue and refer the same for trial to the Court below and in such cases, it shall direct such Court to try such issue and to return the evidence together with its findings thereon and reasons therefor with the time fixed by it or extended by it. As the law stands now, the power of remand is vested in the Appellate Court under Rules 23, 23 A, and 25 of Order XLI of the Code. Rule 23 is not applicable to this case since the suit has not been disposed of only on preliminary issue. The consideration would have been different if remand would have been under Rule 25 which requires that the appeal shall be kept pending and an issue newly framed is to be sent back to the learned Trial Court for returning the finding. This is, however, a case of open remand under Order XLI Rule 23A of the Code.

One may make it clear that Order XLI Rule 23A of the Code should be sparingly used since the public policy is that a litigation is to be concluded finally as early as possible. Where, however, remand is felt necessary, after judicial consideration, and Rule 25 is considered not to be adequate, Appellate Court may consider the question of open remand under Rule 23A.

11.4. In the present case in hand, Rule 23 is not applicable since the suit has not been disposed of by the Trial Court on preliminary point only. 11.5. The Plaintiff has filed the suit for specific performance of contract making her father, K. Sundar Rao, as the alleged Power of Attorney holder of the defendant/owner, K. Satyam to represent him. The Plaintiff has claimed relief on the basis of the Power of Attorney and the subsequent Agreement for Sale dated 14thDecember, 1990. The documents namely Power of Attorney and the Agreement for Sale has been marked as Exhibit

1 and 2 respectively. The defendant in his written statement/counter claim has made out a case of forgery and fabrication of the said document. 11.6. While directing for open remand the First Appellate Court has noted the following facts (i) that K. Satyam never appeared before the Court to give evidence but that does not absolve the Plaintiff from proving the documents. The Trial Court record shows that one petition dated 28thSeptember, 2011 is lying in the record and in paragraph no.2 of the said petition, the Shri K.

Satyam stated that he came to know from reliable sources that the Plaintiff is in hand and glove with other persons, instituted the present suit on the basis of alleged agreement and Power of Attorney which he has neither executed nor authorized the alleged power of attorney holder and, therefore, there is a foul play to grasp his property. The Defendant prayed for directing the Plaintiff to supply the copy of the Plaint and documents relied upon so that he may contest the suit. (ii) That K. Sundar Rao, also filed an application under Order XII Rule 6 of the Code praying for passing judgment on admission. This petition was filed but the case was fixed for filing written statement as K. Satyam appeared before the Trial Court. Further, another application was filed by the Defendant to initiate criminal proceedings against K.

Sundar Rao which was rejected by the learned Trial Court and the case was fixed for framing of issues. (iii) The Plaintiff filed an application directing Defendant K. Satyam to remain present before the Court for the purpose of giving specimen signature for sending the same to expert body for its comparison with signature appearing in the Agreement for Sale and Power of Attorney dated 14thDecember 1990 which was rejected by the Trial Court.

Learned trial court failed to appreciate that the Power of Attorney, Agreement for sale and the receipt of Rs.5,000/- is not cogently proved to have been received by K. Satyam and the fact that alleged transaction was between daughter and father, it should have been kept in mind to find out if it was a sham transaction or a genuine transaction because the utility bills are not the proof of ownership. (v) The summons of the suit filed by the plaintiff were served upon K. Sundar Rao who was none other than the father who filed application for judgment on admission. (vi) One application under Order VIII Rule 6A(3) of the Code was filed by the Plaintiff which was rejected by the learned Trial Court meaning thereby that there was no written statement by the Plaintiff to the counter claim of the defendant on record.

The learned trial court ought to have considered the effect of non-filing of the written statement to the counter claim which shall be treated as a plaint and governed by the rules applicable to plaints as per sub-rule 4 of Rule 6A of Order VIII of the Code and Order VIII Rule 6G and 10 of the Code. (vii) The learned Trial Court failed to appreciate the nature and scope of duties of the attorney who is an agent as per Section 182 of the Indian Contract Act. (viii) The Plaintiff stated in her evidence that the Power of Attorney was executed on 4th December, 1990. (The Plaintiff in her pleading as well stated that the Power of Attorney was executed on 4th December, 1990 emphasis supplied). The non-judicial stamp paper of Rs.

5/- under serial number 6164 and 6164/2 dated 13thDecember, 1990 have been used for the purpose of preparing the said Power of Attorney dated 14th December, 1990 whereas the plaintiff states that the Power of Attorney was executed on 4th December, 1990.

no prior notice by the plaintiff upon the defendant K. Satyam before filing the suit has been proved by the plaintiffs to prove the maintainability and cause of action. Such aspect ought to have been looked into by the learned trial court. (x) Not passing any order on the counter claim by overlooking the evidence and the signatures of K. Satyam on the documents in question ought to have been proved before appreciating evidence for the purpose of deciding the controversy in issue. (xi) The Learned Trial Court has also not passed a reasoned and speaking judgment with regard to finding of Issue no.11 whether the defendant do get any decree in respect of counter claim or not.

11.7. On the basis of various infirmities found in the judgment of learned trial court the First Appellate Court remanded the suit. 11.8. In her cross examination, the plaintiff (PW1) has admitted that there is no signature of K. Sundar Rao in the alleged Power of Attorney namely Exhibit 1. The Plaintiff (PW1) in her cross-examination also admitted that there is no signature of K. Satyam in the document namely Agreement for Sale Exhibit 2. She also admitted that there is no signature of K. Sundar Rao in the document namely Agreement for Sale. The defendant in their written statement has categorically pleaded that the defendant did not execute any Power of Attorney in favour of Sri K. Sundar Rao, the father of the plaintiff and the documents, particularly Deed of Agreement, is a forged and fabricated document as the defendant never executed any such document. It is further pleaded by the defendant that K. Sundar Rao admittedly having no Power of Attorney, committed perjury and cheated the defendant and called upon the court to pass a decree on admission

without the knowledge and consent of the defendant. The suit for Specific Performance of Contract has been filed by the plaintiff in connivance with her father to grab the property of the defendant on the basis of false and fabricated documents. The defendant in their counter claim has prayed for declaring the Agreement for Sale dated 14th December, 1990 and the Power of Attorney dated 4th December, 1990 as null and void since both the documents are false and fabricated document and also for eviction of the plaintiff from the suit property. Such pleadings of the defendant has not been countered by the plaintiff by way of any written statement. It manifest from the judgment of the learned trial Court, that it has not discussed the effect of the non-filing of written statement by the plaintiff to the counter claim of the defendant.

Further the learned Trial Court has not decided the Issue no.7 which deals with whether the plaintiff is liable to vacate the suit schedule property or not. Moreover, the learned Trial Court has also not decided the issue no.11 whether the defendant to get any decree in respect of counter claim or not. Although while dealing with Issue no.5, the learned Trial Court has observed that the counter claim of the plaintiff is vague and without any foundation sans merit and rejected the counterclaim. However, it is relevant to note that the learned Trial Court has not dealt with the issues raised by the defendant with regard to the false and fabricated documents namely the Power of Attorney and the Agreement for Sale in the counter claim.

Needless to mention that no such issues were framed to deal with the specific pleadings of the defendant with regard to alleged forgery and fabrication of the documents by the plaintiff.

non-judicial stamp paper of 13th December, 1990 could be used for execution of Power of Attorney on 4th December, 1990. On such aspects the counter claim of the defendant raising question with regard to the documents, namely the Power of Attorney and the Agreement for Sale, being forged and fabricated one, ought to have been considered while framing the issues and giving findings in the suit in such regard. The learned First Appellate Court has rightly taken into consideration all such aspects and remanded the suit to the learned trial court. 11.9. It has been strenuously argued on behalf of the appellant that there is no ground raised by the respondent-defendant in the appeal about requirement of additional evidence under Order XLI Rule 27 of the Code.

It is pertinent to note that Rule 23A of Order XLI empowers the Appellate Court if it so necessitates, to remand the case if it deems fit and proper. There is no sine qua non that until and unless the plea is raised for reception of additional evidence under Order XLI Rule 27 of the Code, the First Appellate Court is debarred from remanding the matter. Therefore, such argument on behalf of the Appellant-plaintiff does not stand to reason.

11.10. In P. Purushottam Reddy (supra) the Hon'ble Supreme Court observed that there are two conditions provided in Order 41 Rule 23A of the Code namely (i) the trial court disposed of the case otherwise than on preliminary point; and (ii) the decree is reversed in appeal and a retrial is considered necessary. It held that on twin conditions being satisfied, the appellate court can exercise power of remand under Rule 23A as under

Rule 23. Furthermore, it held that the validity of remand has to be tested by reference to Rule 25.

11.11. In the backdrop of the aforesaid proposition, let me examine the present case.

11.12. It is not the case that the suit has been disposed of otherwise than on preliminary point.

11.13. In view of the discussion as made hereinabove, it is found from the materials on record that the learned trial court did not decide the issues nos.(vii) and (xi). Both the issues are very much relevant for adjudicating the counter claim of the defendant. Further it did not frame any issue in relation to the forgery and fabrication of documents by the plaintiff as has been alleged by the defendant. Therefore, it is palpable that the learned trial court omitted to frame issues and had also failed to determine relevant question of fact which is essential for the right decision of the case on merit.

11.14. Thus, it appears that both the twin conditions are satisfied in the present case.

11.15. In Remco Industrial Workers House Building Coop. Society versus Lakshmeesha M7, the Hon'ble Apex Court observed as follows: "18. From the above résumé of facts and the nature of orders of grants of occupancy rights to the contesting parties, we find that the basic issue of the effect of earlier grant dated 28-5-1965 (Ext. D-3) in favour of the tenant Muniyappa on the subsequent grant dated 9-12-1969 (Ext. P-1) in favour of the plaintiff-respondent was neither addressed to by any of the courts below nor has a decision been rendered on the same. The issue of effect of Ext. D-3 on Ext. P-1 and the identity of the land under the two grants is vital to the just decision of the case. The powers of the appellate court are not inhibited by the acts or omissions of the parties. Rule 25 of Order 41 of the Code of Civil Procedure empowers the appellate court to frame an issue and remit it for trial which has been omitted to be framed 7 (2003) 11 SCC 666

and tried by the trial court and which appears to the appellate court essential to the right decision of the case. Rule 23-A Order 41 introduced by CPC Amendment Act 104 of 1976 w.e.f. 1-2-1977 confers powers on the appellate court to remand the whole suit for retrial. In our considered opinion, this is a fit case where this Court should exercise powers of remand under Order 41 Rule 25 read with Rule 23-A CPC." 11.16. Bearing in mind the aforesaid proposition and also considering the fact that the documents in question namely Power of Attorney, Agreement for sale and other relevant documents not been proved in accordance with law in a situation where there is a plea in the counter claim of forgery and fabrication of such document by the plaintiff, which has not been decided by the learned trial court by framing specific issues and moreso, the issues no.(vii) and (xi) which is relevant in the context of the case has also not been decided by the learned trial court, this court is of the view that the judgment and decree of the First Appellate Court does not call for interference.

11.17. It has been vociferously argued by Mr. Jayapal, learned advocate for the appellant-plaintiff that by order dated 13th December 2013 passed in CR No. 20 of 2013, Smt Mani Kumari was allowed to take steps but she was never allowed to adduce evidence on behalf of deceased K.Satyam (original defendant) who filed written statement and counter claim. Therefore, the evidence of Smt Mani Kumari as DW1 relating to written statement and counter claim is inadmissible in law. In support of his contention, he relied on the decision of Hon'ble Supreme Court passed in Janki Vashdeon Bhojwani and another versus Indusind Bank Ltd and others8. As this court has already found that there is no infirmity in the order of remand of the First Appellate Court directing for fresh 8 (2005) 2 SCC 217

consideration by the learned trial, hence it would not be appropriate to decide the admissibility of evidence of DW1 in this appeal. 11.18. Relying on the decision of Hon'ble Supreme Court passed in Municipal Committee Hoshiarpur versus Punjab State Electricity Board9, learned advocate for the appellant-plaintiff submitted that the First Appellate Court be directed to decide the appeals denovo on the basis of materials and evidence on record or as per section 103 of the Code this court may decide the appeals on merit. Such prayer cannot be entertained as this court has already found that there is no infirmity in the order of remand of the First Appellate Court directing for fresh consideration by the learned trial.

11.19. In view of the above discussion the aforesaid substantial questions of law is decided against the appellant-plaintiff. (III) SUBSTANTIAL QUESTIONS OF LAW Nos. (d) in FMAT 2 of 2024 (d) Whether the learned First Appellate Court was justified in reversing the judgment and decree of the learned Trial Court by holding that the Plaintiff's suit seeking specific performance of contract was not instituted based on pre-suit notice and thereby held that the suit to be not maintainable and is having no cause of action.

12. Mr. Jayapal, learned advocate for the appellant-plaintiff submitted that since the deed of sale was not executed despite much persuasion from the side of the plaintiff, the plaintiff issued notice to the defendant in the year 2011, therefore the cause of action arose in the year 2011 and not on any prior date. The learned First Appellate Court erred in holding that since there is no pre-suit notice hence the suit is not maintainable and the plaintiff has no cause of action.

9 (2010) 13 SCC 216

12.1. Per contra, Mr. Khan, learned advocate for the respondentsdefendants submitted that PW1, K. Meena Kumari has categorically admitted that she approached the defendant for execution of sale deed since 1990 meaning thereby that the cause of action arose in the year 1990 and not as mentioned in paragraph no.15 of the plaint. As per Article 54 of the Limitation Act the suit for specific performance of contract has to be filed within three years of refusal. Since as per the plaint, as the refusal to execute the deed of sale is of the year 1990, hence the suit is hopelessly barred by limitation. Accordingly, the finding of the learned trial court in respect of issue no. 1 & 2 is contrary to the evidence on record. The plaint is silent with regard to any steps taken by the appellant-plaintiff since 1990 to 2011.

12.2. Upon going through the judgment of the learned First Appellate Court at paragraph no.4.32 it is found that the learned court has observed that the learned trial court has failed to appreciate that no prior notice by the plaintiff upon the defendant K. Satyam before filing the suit has been proved by the plaintiff to prove the maintainability of the cause of action, which ought to have been looked into by the learned trial court. This has been indicated as a aspect which was lacking in the judgment of the learned trial court. Needless to mention that the learned First Appellate Court has not made in the observation as to the maintainability of the suit lacking in cause of action. Therefore, this court recuse from making any observation with regard to the same.

(IV) SUBSTANTIAL QUESTIONS OF LAW Nos. (a), (b) and (d) in FMAT 3 of (a) Whether the First Appellate Court erred in law by reversing the judgment and decree of learned Trial Court in failing to appreciate that even without filing a written statement as against the counter claim of the defendant, which is not maintainable in view of Order VIII Rule 6 C of the Code of Civil Procedure, 1908, the plaintiff could succeed in proving the plaint case based on cogent and convincing evidence adduced before the learned Court below as to the averments of the plaint. (b) Whether the learned First Appellate Court is justified in reversing the judgment and decree of the learned Trial Court without the averment of counter claim having been proved by the defendant about that the possession of plaintiff over the suit land as permissive in character.

(d)Whether the First Appellate Court erred in law reversing the judgment and decree of learned Trial Court in complete transgression of law that the issue as raised in the counter claim by the defendant seeking eviction of plaintiff from the suit land based on alleged permission possession could be effectively adjudicated in an independent suit and not by way of counter claim as per Order VIII Rule 6C of the Code of Civil Procedure, 1908.

13. Mr. Jayapal. learned advocate for the appellant-plaintiff argued that though the appellant-plaintiff could not file her written statement against the counter-claim filed by one Mani Kumari since the application for acceptance of such written statement was rejected by the learned trial court. Be that as it may, such aspect by itself would not entitle the defendant-respondent to have judgment in his favour on deemed admission under Order 8 Rule 10 of the Code. Moreover, the original defendant through Mani Kumari failed to prove the counter-claim which has been considered by the learned trial court while deciding issue no.5. Relying on the decision of Hon'ble Supreme Court passed in Balraj Taneja and another versus Sunil Madan and another10, he submitted 10 (1999) 8 SCC 396

that the court should not act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed the court should be more cautious in proceeding under Order 8 Rule 10 of the Code. The court on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement.

But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two versions are set out in the plaint itself, then it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. In the instant case the original defendant failed to prove the counter-claim as regards his plea that the appellant-plaintiff is in permissive possession. Moreover, DW1, Smt Mani Kumari has admitted in cross-examination that the plaintiff is possessing the suit property. 13.1. On the contrary, Mr.

counter claim in which the defendant categorically averred that Shri K. Sunder Rao was given the property in the absence of the defendant. 13.2. It is the plaint case that upon payment of part consideration amount she was put into vacant possession of the suit land by the said Satyam. Per contra, the defendant contends that the plaintiff was put into permissive possession. The nature of possession of the plaintiff in the suit property is dependent on the proof of execution of the agreement for sale, which has been challenged by the defendant in his counter claim asserting that the said document is fabricated and forged and such aspect has not been decided by the learned trial court. Needless to mention that in the foregoing paragraphs it is found that the agreement for sale has not been proved by the plaintiff by cogent evidence.

13.3. The First Appellate Court has not passed any decree considering the provision of Order VIII Rule 10 of the Code, rather has observed that the learned trial court did not consider the effect of non-filing of written statement against the counter claim, hence it would be preposterous to observe on such aspect as argued upon on behalf of the appellant-plaintiff. 13.4. The appellant-plaintiff has raised the ground that the counter claim of the defendant is not maintainable under Order VIII Rule 6C of the Code. The Defendant in the counter claim has sought for declaration that the alleged Power of Attorney and the Agreement for Sale is null and void being forged and fabricated and also sought for eviction of the plaintiff from the suit property. At this juncture it would be apposite to reproduce Rule 6 C of Order VIII as hereunder.

"6C. Exclusion of counter-claim.-Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit."

13.5. The key words in Order VIII Rule 6C of the code are Independent Suit. If the Court is of the view, in an application made by the plaintiff at any time before the issues are settled in relation to the counter claim, that the counter claim ought to be disposed of by way of an Independent Suit, the court is empowered to make such orders as it things fit. An Independent Suit need to be instituted in the Court within the local limits of whose jurisdiction the property is situate in terms of Section 16 of the Code. Therefore, should the plaintiff in a given case desire that the counter claim filed by the defendant in answer to his suit claim be dealt with as a separate suit in itself, he ought to apply for that relief before the trial Court and it should be done before the issues are settled.

On his application for amending his suit claim and the counter claim, the Court will have to consider whether counter claim should be dealt with as part and parcel of the suit or whether the defendant should be referred to a separate suit. These exceptional provisions in Rule 6C only illustrate the homogeneity of the suit claim and the counterclaim as a single proceeding. Needless to mention that no such application has been filed by the plaintiff before the learned trial Court seeking exclusion of the counter claim. Thus, it would be a travesty of justice to consider such a ground which has never been taken recourse or canvassed in trial.

13.6. In light of the aforesaid discussion, the above substantial questions of law is decided against the appellant-plaintiff. (V) SUBSTANTIAL QUESTIONS OF LAW Nos. (c) in FMAT 3 of 2024 (c) Whether the First Appellate Court erred in law reversing the judgment and decree of the learned Trial Court dismissing the counter claim of defendant for noncompliance of provision of Order VI Rule 4 of the Code of Civil Procedure, 1908 as regards the absence of plea of fraud committed upon the defendant with particulars and details in his pleadings under Order VIII Rule 6A of the Code of Civil Procedure, 1908 on the basis whereof decree of eviction of plaintiff has been sought.

14. Mr. Jayapal, learned advocate for the appellant-plaintiff relying on the decision of Hon'ble Supreme Court in Raja Ram versus Jai Prakash Singh and Others11 submitted that the assertion of Mani Kumari in her counter claim of act of fraud is bereft of particulars as required under Order VI Rule 4 of the Code and thus there is neither any pleadings nor any evidence on record in support of the same. In absence of the requirement of provisions of law and the supporting evidence, the learned First Appellate Court ought not to have remanded the suit on framing additional issues. The First Appellate Court ought not to have framed additional issues of law that sham transaction since the pleadings are bereft of full particulars.

14.1. In reply to such contention advanced on behalf of the appellantplaintiff, Mr.

Khan, learned advocate for respondents-defendants submitted that the defendant has made a categorical case that of fabrication and forgery of the documents namely the Power of attorney (Exhibit 1) and agreement for sale (Exhibit 2) by the plaintiff in its 11 (2019) 8 SCC 701

counter-claim and therefore no further particulars is necessary to plead in such regard.

14.2. At the outset, it would be profitable to reproduce the definition of fraud as provided in the Indian Contract Act as hereunder: "17. "Fraud" defined.-"Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto of his agent, or to induce him to enter into the contract:-

(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent. Explanation.-Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak3, or unless his silence is, in itself, equivalent to speech."

14.3. The defendant in his counter claim has made out to the specific case that the documents in question namely the Power of Attorney and the agreement for sale are fabricated and forged and was never executed by the defendant. Forgery and fabrication of documents are underlying acts of fraud in civil law because they involve intentional deception to gain an unfair advantage or cause loss to another. While forgery and fabrication are distinct legal concepts however they are of the means by which a broader civil fraud is committed.

14.4. It is settled proposition of law that full and precise particulars have to be given when fraud or coercion are pleaded. In the absence of such particulars the party is estopped from pleading that there was any fraud or forgery. (See Shanti Budhiya Vesta Patel versus Nirmala Jayprakash

Tiwari12). Order VI Rule 4 of the Code clearly stipulates that where the allegations of fraud or misrepresentation of etcetera are alleged, the party must set forth the particulars of the fraud or misrepresentation and it will not be enough to use general words. Thus, this court is in consonance with the proposition of law as advanced on behalf of the appellant-plaintiff relying on Raja Ram (supra).

14.5. Now it is to be examined as to whether the pleadings made by the defendant in the written statement/counter claim can be said to be lacking particulars. The object of a pleading is to bring the parties to trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues and to give notice on either side in support of their respective cases. The rule is based on the principle that a charge of fraud, undue influence, etc is a charge of quasi-criminal nature. Whenever, it is alleged that a transaction is vitiated on account of fraud or undue influence, an insidious and unworthy conduct is attributed to the person who is said to be guilty of fraud and undue influence.

Therefore, the policy of law requires that such a person should be apprised of the particulars, so that he be in the position to rebut those particulars. The function of particulars is to limit the generality of the allegation in the pleadings. Such details and particulars are necessary to ensure clearness and to prevent surprise at the trial. Bearing in mind such object of the pleading, on reverting back to the pleadings of the defendant it is found that the defendant has averred that the documents in question namely the Power of Attorney in favour of K.

December, 1990 upon which the plaintiff has based its case are forged and fabricated. Such aspects in clear terms make the plaintiff aware as to the case made out by the defendant against and there is certainly no manner for the plaintiff to be taken by surprise. Therefore, it cannot be said that the pleadings of the defendant in the written statement/counter claim is bereft of particulars.

14.6. In light of the above discussion the aforesaid substantial question of law is decided against the appellant-plaintiff.

15. In view of the above discussion, the both the appeals fall short of merit.

16. Accordingly, the Appeals being FMAT 2 of 2024 and FMAT 3 of 2024 are hereby dismissed.

17. The impugned judgment and decree dated 29th February, 2024 passed by the First Appellate Court namely the learned Additional District Judge, Andaman and Nicobar Islands, passed in Other Appeal No.8 of 2018 preferred by substituted defendant, is hereby affirmed.

18. The impugned judgment and decree dated 29th February, 2024 passed by the First Appellate Court namely the learned Additional District Judge, Andaman and Nicobar Islands, passed in Other Appeal No.9 of 2018 preferred by substituted defendant, is hereby affirmed.

19. There shall be no order as to costs.

20. All connected applications, if any, stand dismissed.

21. Interim order, if any, stands vacated.

22. Let a copy of this judgment be sent to the learned trial Court as well as Learned Additional District Judge, Andaman and Nicobar Islands along with the trial court records for information and necessary action.

23. Urgent photostat certified copy of this judgment, if applied for, be given to the parties upon compliance of necessary legal formalities. (Bivas Pattanayak, J.)