Case Note & Summary
The case involves a second appeal arising from a suit for possession and mesne profits concerning a property in Mapusa, Goa. The appellants (defendants) are the legal heirs of the original tenant, Sonu Sitaram Verenkar, and others. The respondent (plaintiff) claimed that the defendants were tenants under an agreement dated 04/05/1977, which contained a clause (Clause 4) requiring a formal lease deed to be executed. However, no such written lease was ever executed. The trial court decreed the suit in favor of the plaintiff, and the lower Appellate Court confirmed the decree. The appellants challenged the Appellate Court's judgment on several grounds, including that the Appellate Court failed to frame proper points for determination as required by Order 41 Rule 31 CPC, and that it violated Sections 91 and 92 of the Indian Evidence Act, 1872 by considering oral evidence to prove the terms of the lease when the agreement itself required a written lease. The High Court admitted the appeal on five substantial questions of law, including whether the points for determination framed by the Appellate Court were proper, whether the Appellate Court failed to follow the mandate of Sections 91 and 92 of the Evidence Act, and whether the findings were perverse. The High Court, after hearing arguments, allowed the appeal, set aside the judgments of both the lower courts, and remanded the matter to the trial court for fresh disposal in accordance with law, with directions to consider the legal issues afresh.
Headnote
A) Civil Procedure Code - Order 41 Rule 31 - Points for Determination - The Appellate Court must frame proper points for determination that reflect the real controversy between the parties; failure to do so vitiates the judgment. (Paras 2, 9)
B) Evidence Act - Sections 91 and 92 - Exclusion of Oral Evidence - When a contract is required to be in writing, no oral evidence is admissible to prove its terms; the lower Appellate Court erred in relying on oral evidence to establish a lease when Clause 4 of the agreement dated 04/05/1977 mandated a written lease. (Paras 2, 3)
C) Civil Procedure Code - Order 41 Rule 31 - Perverse Findings - Findings based on conjectures and surmises, without evidence, are perverse and liable to be set aside. (Para 2)
Issue of Consideration
Whether the lower Appellate Court failed to frame proper points for determination as mandated by Order 41 Rule 31(a) CPC and whether it violated Sections 91 and 92 of the Indian Evidence Act, 1872 by considering oral evidence despite the requirement of a written lease under Clause 4 of the agreement dated 04/05/1977.
Final Decision
The High Court allowed the second appeal, set aside the judgments and decrees of both the trial court and the lower Appellate Court, and remanded the matter to the trial court for fresh disposal in accordance with law. The trial court was directed to decide the suit afresh, considering the legal issues raised, including the applicability of Sections 91 and 92 of the Indian Evidence Act and the requirement of a written lease under Clause 4 of the agreement dated 04/05/1977. The parties were directed to appear before the trial court on a specified date. The interim order of status quo was directed to continue until the trial court decided the suit.
Law Points
- Order 41 Rule 31 CPC
- Sections 91 and 92 Indian Evidence Act
- 1872
- Points for Determination
- Lease in writing
- Oral evidence
- Perverse findings
Case Details
2021 LawText (BOM) (02) 86
Second Appeal No.105/2006
Mr. P. Talaulikar for the Appellants, Mr. Shivan Desai along with Mr. Varun Bhandankar for the Respondent
Shri. Sonu Sitaram Verenkar (since deceased) represented by his legal heirs and others
Shri Nishith M. Prabhu Verlekar
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Nature of Litigation
Second Appeal against the judgment of the lower Appellate Court confirming the trial court's decree for possession and mesne profits in a lease dispute.
Remedy Sought
The appellants sought to set aside the judgments of the trial court and the lower Appellate Court and dismiss the suit.
Filing Reason
The appellants challenged the lower Appellate Court's judgment on grounds that it failed to frame proper points for determination, violated Sections 91 and 92 of the Indian Evidence Act by considering oral evidence, and made perverse findings.
Previous Decisions
The trial court decreed the suit in favor of the respondent/plaintiff. The lower Appellate Court dismissed the appeal and confirmed the decree.
Issues
Whether the points for determination framed by the Appellate Court in para 9 of the impugned judgment are not points for determination in true sense as mandated by Order 41 Rule 31(a) CPC?
Whether the main point for determination was whether in light of specific clause 4 of the agreement dated 04/05/1977 (Exh.PW1/A), the Plaintiff proves that there was agreement dated 04/05/1977?
Whether the Appellate Court failed to follow the mandate of Sections 91 and 92 of the Indian Evidence Act, 1872, according to which it was mandatory to have agreement in writing as per Clause 4 of the agreement, no oral evidence could be looked into except the lease in writing, which does not exist in the present case?
Whether the Appellate Court failed to address the issue of the consent of the wife (Defendant No.2) to the lease instead addressed to the implied consent of the wife to the construction of the building?
Whether the findings recorded by the lower Appellate Court are not based on evidence on record, but only on conjectures and surmises and therefore, the findings are perverse?
Submissions/Arguments
The appellants argued that the Appellate Court failed to frame proper points for determination as required by Order 41 Rule 31 CPC.
The appellants contended that the Appellate Court violated Sections 91 and 92 of the Indian Evidence Act by considering oral evidence to prove the lease when Clause 4 of the agreement required a written lease.
The appellants submitted that the findings of the Appellate Court were perverse and based on conjectures and surmises.
Ratio Decidendi
The Appellate Court must frame proper points for determination that reflect the real controversy; failure to do so vitiates the judgment. Additionally, when a contract is required to be in writing, Sections 91 and 92 of the Indian Evidence Act, 1872 prohibit the admission of oral evidence to prove its terms. The lower Appellate Court's reliance on oral evidence despite the requirement of a written lease under Clause 4 of the agreement dated 04/05/1977 was erroneous.
Judgment Excerpts
This appeal was admitted on 08.03.2007 on the following substantial questions of law: (a) Whether the purported points for determination framed by the Appellate Court in para 9 of the impugned judgment are not at all points for determination in true sense as mandated by Order 41 Rule 31(a) of Civil Procedure Code?
(c) Whether the Appellate Court failed to follows the mandate of Sections 91 and 92 of the Indian Evidence Act, 1872 according to which, it was mandatory to have agreement in writing as per Clause 4 of the agreement, no oral evidence could be looked into except the lease in writing, which does not exist in the present case ?
Procedural History
The suit was filed by the respondent/plaintiff for possession and mesne profits. The trial court decreed the suit. The appellants appealed to the lower Appellate Court, which dismissed the appeal and confirmed the decree. The appellants then filed the present second appeal, which was admitted on 08.03.2007 on five substantial questions of law. Interim relief was initially granted appointing a Receiver, but later modified to status quo. The High Court heard the appeal and delivered judgment on 16.02.2021, allowing the appeal and remanding the matter to the trial court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 41 Rule 31
- Indian Evidence Act, 1872: 91, 92
