SA/31/2008 of HARIDWAR DEVELOPMENT AUTHORITY and ANR. Vs KM. RITU PATHAK

HIGH COURT OF UTTARAKHAND AT NAINITALSECOND APPEAL NO. 31 OF 2008

Haridwar Development Authority and Another

……Plaintiff-Appellants.

Km. Ritu Pathak

….….Defendant-Respondent. Dated: 7.5.2008

Hon’ble Rajesh Tandon, J.

Heard Sri S. Dhulia, Sr. Advocate, assisted by Shri Vipul Sharma, counsel for the appellants and Shri Lok Pal Singh, counsel for the respondent.

2. By the present second appeal filed under Section 100 of the Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 06.10.2001 passed by the Civil Judge (Senior Division), Haridwar in O.S. No. 24 of 1995 as well as the judgment and decree dated 31.8.2007 passed by the Additional District Judge, Haridwar in Civil Appeal no. 90 of 2002.

3. Second appeal was admitted on the following substantial questions of law:-

“A. Whether an amount is recoverable from the promisee where the promisor had earlier made an agreement under mistaken belief regarding calculation and later on the real calculation comes to his knowledge and that too when after the

intimation of the same the promisee had not terminated the contract?

B. Whether decree of permanent injunction can be granted restraining the defendants/appellants from recovering genuine amount that was discovered later on as the same was due to calculation mistake and thereafter demanded from the Plaintiff/Respondent.”

4. Briefly stated, suit was filed by the plaintiff Smt. Janki Pandey for permanent injunction restraining the defendants from making recovery of Rs. 58,736/- from the plaintiff. According to the plaint averments, the plaintiff has applied for purchasing of house for higher income group and she was allotted House No. H-9 for which written agreement was executed on 19.4.1994 before the Registrar, Haridwar. According to the agreement, the plaintiff was to pay three installments of Rs. 17,087/- in every three months and remaining amount was to be paid by the plaintiff in eight monthly installments. The plaintiff has paid all the installments on 15.1.1995. The defendants have asked the plaintiff to deposit sum of Rs. 58,736/- up to 30.11.1994 in the treasury of the Haridwar Development Authority. It has been stated that the demand of the defendants to the extent of Rs. 58,736/- is illegal. The plaintiff has sent notice dated 24.11.1994 with regard to aforesaid demand and the said notice was served upon the defendants on 25.11.1994. The defendants have replied the said notice on the basis of wrong facts and again demanded sum of Rs. 58,736/- by way of reply of the notice. The defendants are threatening the plaintiff to attach the property in dispute. The defendants are not entitled to demand any amount except the

agreement entered into between the plaintiff and the defendants, hence, the suit has been filed.

5. The defendants have filed written statement stating therein that the plaintiff has instituted the suit on the basis of wrong facts. In paragraph nos. 13 and 16 of the written statement, it has been stated as under:-

“13- ;g fd oknuh dk ;g dFku fd izfroknh mRrjnkrk }kjk :Ik;s 58]736@& :Ik;s dh ekax xyr o voS/kkfud rkSj ij dh x;h gks] xyr gS lgh rF; ;g gS fd oknuh dks izkf/kdj.k }kjk 17]087@& #Ik;s dh izfrfd’r ds fglkc ls tek djkus ds lEcU/k esa dgk x;k Fkk tks fd fyfidh; C;kt dh x.kuk esa =qfV gks tkus ds dkj.k gh dgk x;k Fkk tcfd okLro esa 20]758@& izfr fd’r ds fglkc ls tek fd;k

tkuk Fkk

16- ;g fd bl izdkj fd’r ij oknuh }kjk 3671 @& de tek fd;s x;s rFkk dqy vUrj 58]736@& :Ik;s gqvk Fkk ftldk oknuh }kjk izkf/kdj.k dks"k esa tek djkuk vko’;d Fkk oknuh }kjk :Ik;k tek u djkus dh n’kk esa izfroknh mRrjnkrk oknuh ls ctfj;s vkj-lh- tkjh djds /ku izkIr djus dk vf/kdkjh gS rFkk izkf/kdj.k }kjk dksbZ vfu;fer ekax ugha dh x;h gS A”

6. On the pleadings of the parties, the trial court has framed the following issues:-

1. As to whether the defendants are not entitled for recovery of Rs. 58,736/- from the plaintiff in respect of agreement entered into between the parties on

19.4.1994?

2. As to whether the interest was calculated wrongly due to mathematical error and the installment was

to be fixed as Rs. 20,758/- as per the agreement? If yes, its effect?

3. What relief, the plaintiff is entitled to?

7. The plaintiff has produced 10 documents per list 8 ga, 7 documents per list 22 ga and 1 document per list 44 ga. Towards the oral evidence the plaintiff has examined P.W.1 Meenakhi Pandey.

8. The defendants have produced one document per list 37 ga. Towards the oral evidence, the defendants have examined Rakesh Kumar as D.W.1.

9. While deciding issue no. 1 as to whether the defendants are not entitled for the recovery of Rs. 58,736/- from the plaintiff in respect of agreement entered into between the parties on 19.4.1994 and further as to whether the interest was calculated wrongly due to mathematical error and the installment was to be fixed as Rs. 20,758/- as per the agreement, the trial court has recorded the finding that the defendants have not clarified that as to what amount of interest was liable to be paid by the plaintiff on the installments and as to how there was mathematical error in calculating the interest and further and as to how the installments were to be fixed at the rate of Rs. 20,758/- instead of Rs. 17,087/-. The trial court has recorded the finding that if by mistake the development authority has wrongly calculated the amount, the plaintiff cannot be penalized on that account. The findings recorded by the trial court are quoted below:-

“C;kt dh x.kuk esa ;fn dksbZ =qfV Fkh] rks mls izfroknhx.k dks ;g Li"V djuk pkfg;s Fkk fd fdl izdkj ls fdruk C;kt fd’r ds mij ns; gksrk Fkk] fdl izdkj ls x.kuk esa =qfV gqbZ

rFkk D;k dkj.k Fkk fd fd’r 17087 @& :Ik;s dh u gksdj 20]758@& :Ik;s dh gksrh] ijUrq izfroknhx.k }kjk bl lUnHkZ esa dksbZ x.kuk U;k;ky; esa izLrqr ugha dh x;h gS u Mh-MCY;w- 1 jkds’k dqekj izfroknh ds lk{; us C;kt dh nj

;k x.kuk esa =qfV dks vius lk{; esa dgha fl) gqvk gS ek= ;g dgus ls fd fyfidh; =qfV ds dkj.k C;kt dh x.kuk esa =qfV gqbZ Fkh] ;g ugha ekuk tk ldrk gS fd C;kt dh x.kuk esa =qfV gqbZ gksxh A”

10. On the basis of the aforesaid, the trial court has recorded the finding that the defendants are not entitled to recover sum of Rs. 58735/- from the plaintiff. The trial court has, therefore, decreed the suit of the plaintiff.

11. Aggrieved by the judgment and decree passed by the trial court, the defendant went in appeal. The appellate court has affirmed the findings recorded by the trial court and has dismissed the appeal. The findings recorded by the trial court is quoted below:-

“vihyh; U;k;ky;] fo}ku voj U;k;ky; ds bl fu"d"kZ ls lger gS fd Ik{kdkjksa esa ykVjh Mªk }kjk okfnuh dks Hkwry la[;k ,p 9 , vkoafVr gqvk gS vkSj Ik{kdkjksa ds e/; fyf[kr vuqcU/k fnukafdr 29-4-2994 rgjhj o rdehy gqvk Fkk tks Ik=koyh ij ,xzhesaV yxk;r 9 ,&17 nkf[ky gS bl ,xzhesaV esa Hkou dh dher 3]43]850@& :Ik;s of.kZr gS vkSj okfnuh }kjk Ck;kuk ds rkSj ij 2]26]146@& :Ik;s vihykFkhZ dks vnk dj fn;s Fks 'ks"k /kujkf’k okfnuh }kjk 'krksZa ds vuqlkj eq0 17087@& :Ik;s dh =Sekfld fd’rksa ds vuqlkj tks fd vkB fd’rksa esa fnukad 15-4-1996 rd vnk djuh Fkh] dks okfnuh us fnukad 15-1-1995 rd vnk dj nh bl izdkj foi{kh@okfnuh dh vksj ls Hkou dh dher eq0 3]43]850@& :Ik;ksa ds laca/k esa 2]26]146@& :Ik;s dk

c;kuk vnk dj 'ks"k /kujkf’k eq0 17087@& :Ik;s dh fd’rksa ds vuqlkj vihykFkhZ@izfroknh dks vnk dj pqd gS ;fn =Sekfld fd’rsa eq0 20758@& :Ik;s ds LFkku ij C;kt dh fyfidh; =qfV ds dkj.k 17]087@ :Ik;s dk Ik{kdkjksa ds e/; esa rgjhj gqvk gS rks ;g =qfV fdl izdkj gqbZ gS] ;g Ik=koyh ij vihykFkhZ ds }kjk izLrqr lk{;ksa ls fl) ugha gksrk gS Ik{kdkjksa ds e/; esa iz’uxr Hkou ds ysu&nsu ds laca/k eas Li"V vuqcU/k Ik= 9 ,@1 yxk;r 9 ,@17 rgjhj gS ftlls nksuks Ik{k ck/; gSa A”

12. On the basis of the aforesaid finding, the appellate court has dismissed the appeal and has confirmed the findings recorded by the trial court.

13. Both the courts below have recorded the concurrent findings of fact. The substantial question of law involved in second appeal, therefore, is decided against the defendant.

14. Counsel for the respondent has placed reliance on the judgment of Dayal Singh and Others v. Union of India and Others (2003) 2 SCC 593 wherein the Apex Court has held as under:-

“32. Once the matter is concluded by contract,

novation of contract would also fall within the realm of contract only. If the contention of Mr. Narsimha is accepted, contract can be reopened only with the agreement of both the parties. The parties must be ad idem therefore.

33. The person whose lands were acquired, thus, having entered into an agreement cannot be said to have any legal right which can be enforced in court of law so as to enable him to obtain an order from

the court directing the Union of India to reopen the agreement, only because by reason of subsequent award an enhanced amount of compensation has been paid for similar class of lands. If right to get the amount of compensation redetermined is held to be implicit in the Act, the same for all intent and purport would amount to invoking the provisions of Section 28-A of the Land Acquisition Act indirectly which cannot be done directly. It is well-settled principle of law that what cannot be done directly cannot be done indirectly.”

15. In Kamti Devi (Smt.) and Anr. V. Poshi Ram, (2001) 5 SCC 311, the Court came to the conclusion that the finding thus reached by the first appellate court cannot be interfered with in second appeal as no substantial question of law would have flowed out of such finding.

16. In Thiagarajan v. Sri Venugopalaswamy B. Koil (2004) 5 SCC 762), it has been held that the High Court in its jurisdiction under Section 100 of C.P.C. was not justified in interfering with the findings of fact. The court observed that to say the least the approach of the High Court was not proper. It is the obligation of the Courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. The Apex Court in catena of decisions held that where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible.

17. In the case of Madhavan Nair v. Bhaskar Pillai (2005) 10 SCC 553), the Apex Court has observed that the High Court was not justified in interfering with the concurrent findings of fact. The Apex Court has observed that it is well settled that even if the first appellate court commits an error in recording finding of fact, that itself will not be ground for the High Court to upset the same.

18. In the case of Harjeet Singh v. Amrik Singh (2005) 12 SCC 270, the Apex Court has held that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the first appellate court.

19. In H.P. Pyarejan Vs. Dasappa 2006 AIR SCW 715, the Apex Court has observed as under:-

“Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with findings of fact by the High Court is not warranted if it involves re-appreciation of evidence.”

20. In Commissioner Hindu Religious & Charitable Endowments v. P. Shanmugama and others (2005) 9 SCC 232, it has been held under:-

“14. In our view, High Court has no jurisdiction in the second appeal to interfere with the finding of facts recorded by the first appellate court after careful consideration of the evidence, oral and documentary, on record. It was not open to the High Court to reverse the findings of fact as it has done.”

21. In view of the aforesaid, I find no merit in the second appeal. Second appeal, therefore, lacks merit and is liable to be dismissed.

22. Shri S. Dhulia, Sr. Advocate has pointed out that the interest amount which has been left is being recovered by subsequent notice. Since in the agreement the entire amount was disclosed for which the installments were fixed, therefore, I see no reason to ignore the said agreement dated 19.4.1994 which has been signed by both the parties.

23. However, this order will not deprive the appellant from taking recourse to any other mode if both the parties jointly agree within the fourcorners of law.

24. Subject to the aforesaid, second appeal is dismissed. No order as to costs.

7.5.2008Avneet

(Rajesh Tandon, J. )