TMI Blog2021 (6) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... h order which ought to have been passed by the trial court on the basis of Section 560(7) Companies Act, 1956 which is the mandate of the law. The power under Order XLI Rule 33 CPC of the appellate court is wide in order to do complete justice to the parties in a lis and the first appellate court is well within its power which requires no interference. Whether reversal of the finding of issue No. 2 is proper on the face of the pleadings of the parties to the suit? - HELD THAT:-The suit is for declaration of right, title and interest of the plaintiff appellant company over the suit land and other consequential reliefs like recovery of possession, injunction etc. The plaintiff appellant in its plaint pleaded that the suit land was purchased from one Jagannath Paul who executed the Ext.3 sale deed and delivered possession. So the plaintiff appellant derived the title over the suit land upon execution of the sale deed by the vendor Jagannath Paul. On the other hand the defendant respondent in his written statement denied purchase of the suit land vide registered sale deed No. 240/1985 dated 2.2.1985 from Jagannath Paul and the delivery of possession by the said vendor. The trial c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the plaintiff appellant was denied and moreover he failed to prove the fact that his possession over the suit land was hostile and adverse to the plaintiff appellant and it was within the knowledge of the representatives of the plaintiff appellant including its director, Suresh Kumar Jain that the same was adverse to the interest of the plaintiff appellant from the date of entry of the defendant respondent. The learned first appellate court took note of the pleadings in the plaint and held that the suit was filed within the period of limitation. Thus, the suit filed by the plaintiff appellant is maintainable but the plaintiff appellant failed to prove his title over the suit land for which the plaintiff appellant is not entitled for the reliefs. The suit is dismissed. - RSA/264/2017 - - - Dated:- 23-6-2021 - HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA Advocate for the Petitioner : MR. S.K. Chakraborty Advocate for the Respondent : Mr. M.K. Choudhury JUDGMENT ORDER(CAV) Heard Mr. P. K. Roy the learned counsel for the appellant and Mr. M.K. Choudhury, the learned Senior counsel assisted by Mr. A. Barkataki the learned counsel for the sole respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter for fresh disposal by the Deputy Commissioner, Tinsukia. Pleading further that the defendant respondent taking the advantage of absence of the representatives of the plaintiff company unauthorisedly trespassed and dispossessed the plaintiff appellant from the suit land and illegally mutated his name. Accordingly, the suit was filed for the reliefs stated hereinabove. 6. The defendant respondent filed his written statement pleading that the suit was not maintainable both under the facts and law. The plaintiff appellant had no right to sue as the name of plaintiff company was struck off from the register of Registrar of Companies(ROC), Shillong. No company existed under the name and style, Kamakhya Coal Pvt. Ltd. as such the existence of the director of the said company does not arise. It was specifically pleaded that the plaintiff appellant had no right, title and interest over the suit land, denied execution of the sale deed by Jagannath Paul and delivery of possession of the suit land. 7. The defendant respondent pleaded that he had been in uninterrupted possession of the suit land continuously from 1990 initially by raising tea nursery and in the year 1994 by construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g out the name of the plaintiff company from the register of ROC u/s 560 of the Companies Act, 1956. 11. The learned trial court decided the issue No. 1 in respect of maintainability of the suit against the plaintiff appellant. The court below considered Ext. H H which affirmed striking out the name of plaintiff appellant company from the register of ROC u/s 560 (5) Companies Act, 1956 on 30.10.2007. The suit was filed on 17.12.2008 on which date the company was no longer a juristic person. The court below considered Ext. 2 purportedly a certified copy of the resolution passed in the meeting of Board of Directors of the plaintiff appellant company on 3.11.2008 wherein the said director, Sri Suresh Kumar Jain(PW-1) representing the plaintiff company was authorized to represent the company in the matter of any legal action against the defendant respondent. The said resolution was not signed by other directors except the said Sri Suresh Kumar Jain inasmuch as Ext. 1, Memorandum of Association of the plaintiff company indicated three directors. So Ext. 2 cannot be construed as a document authorizing Sri Suresh Kumar Jain to represent the plaintiff company in the suit. The plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ific denial of the defendant respondent that plaintiff appellant was not the absolute owner of the suit land by way of purchase vide sale deed No. 240/1985 and of execution of the sale deed by Jagannath Paul and erroneously put the burden on the defendant respondent for dislodging of the presumption of due execution of the sale deed. The suit was barred by limitation . But no such issue was framed on the point of limitation. These are the two grounds mainly taken in the cross objection assailing the finding in issue No. 2 by the trial court amongst others. (14) The first appellate court did not agree with the reasonings of the trial court while deciding the issue No. 1. The plaintiff appellant filed Co. Pet 5/2010 before this court(Tribunal) seeking restoration of its Active status in the register of ROC, Shillong and vide order dated 4.10. 2010 this court directed the ROC Shillong to revive the Active status from the strike off status within 7 days from the receipt of the certified copy of the order. In compliance of the said order the status of the plaintiff company was restored to Active one and the plaintiff appellant downloaded the same from Company Masters Detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the parties to the suit ? (18) Mr. Roy argued that the first appellate court without there being any pleadings on the part of the defendant respondent accepted a new plea taken by the defendant respondent and held that the suit was not maintainable as it was not filed by a person duly authorized by the Company. (19) Mr Roy relied the decision of the Apex Court in United Bank of India Vs- Naresh Kumar and Ors reported in (1996) 6 SCC 660 and submitted that the plaint was signed and verified on behalf of the plaintiff company by one of its directors being able to depose to the facts of the case and in fact deposed as PW 1 in support of the pleadings. In view of the provisions contained in Order XXIX Rule 1 read with Order VI Rule 14 of the CPC, the first appellate court erred in holding that the said director who filed the suit was not duly authorized by the plaintiff appellant company. The defendant respondent in the absence of pleading could not have made a new case for the first time in the appeal beyond its pleadings. The observation of the first appellate court that none of the directors were examined to substantiate that they ratified the act of the director fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to bring on record the order dated 4.10.2010. The proviso to Rule 14 of Order VI CPC does not come into play on the basis of the factual matrix of the case in hand inasmuch as on the date of filing the suit the plaintiff company was not in existence . On the similar ground the provision of Order XXIX Rule 1 CPC would also have no application. Accordingly Mr. Choudhury sought for a decision against the appellant in substantial question of law No.A. 22. Mr. Roy the learned counsel for the plaintiff appellant in response to the submission of Mr. Choudhury supported the act of the learned first appellate court in taking into consideration the order dated 4.10.2010 passed by this court in Co.Pet No. 5/2010 while holding that the company was active at the time of filing the suit. Relying the decision in Ramesh Kumar-vs- Kesho Ram reported in AIR 1992 SC 700 it was submitted by Mr. Roy that though rights are adjudicated of the litigants on the basis of the pleadings as on the date of commencement of the lis but whenever subsequent event of fact or law having material bearing on the entitlement of the parties to the reliefs, the court can consider the subsequent events taking a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he trial court on the basis of the pleadings framed the issue of maintainability of the suit. 24. The said director, Suresh Kumar Jain adduced his evidence as PW-1 and exhibited Ext.1, certificate of incorporation of the company alongwith the Memorandum of Association. As per the Memorandum of Association there are three directors including Sri Suresh Kumar Jain. Ext.2 is the certified true copy of the resolution passed in the meeting of Board of Directors of the plaintiff company held on 3.11.2008 at Tinsukia authorizing the director, Sri Suresh Kumar Jain to represent the company in the matter of any legal action against the defendant respondent. He was further authorized to sign vakalatnama, etc. (25.) The learned first appellate court considered the Exhibits 1 and 2. From the Memorandum of Association the appellate court verified the names of directors and took note of the cross examination of PW-1 that one of the directors resigned without any documents to that effect. The Ext. 2 does not bear the signature of the other director alongwith the common seal of the company. Accordingly as the said Sri Suresh Kumar Jain, director was not vested with the power by the Memorandu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pleadings of the parties. A mere statement in the pleadings that the suit is not maintainable and framing of an issue to that effect cannot fulfil the intent of framing issues in the suit which is primarily for identifying issues leading to the disputes between the parties to a lis and for leading material evidence by the parties to the suit in the respective issues corresponding to facts in issue as interpreted in Section 3 of the Evidence Act. (28) In D.M.Lahiri-Vs- Rajendra Nath, reported in AIR 1971, A N,143 Hon ble Division of this Court while discussing the object of framing issues in a suit held as follows:- 10. We may observe that a court should decline to frame an issue as to maintainability of a suit in absence of specific averment in the written statement as to how and in what circumstances the same is not maintainable in law. A mere vague recital in the written statement, without anything more, cannot be the basis for raising such an issue. Issues are framed for a right decision of the case with an object to pinpoint the real and substantial points of difference between the parties specifically and unambiguously emerging out of the pleadings. Vague i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of the plaintiff appellant company as required under Order XXIX Rule 1 CPC. (31.) Though Mr. Choudhury while arguing submitted that the first appellate court was not correct in considering the order dated 4.10.2010 passed in Co.Pet No. 5/2010 without proving the same I am not agreeable to it. The first appellate court verified the concerned portal and came to the conclusion that in terms of the order of this court(Tribunal) the plaintiff appellant company was revived with the Active status . Section 560(6) of the Companies Act, 1956 stipulates a period of 20(twenty years) from the date of publication in the Official Gazette of the notice striking the name of the company off the register to move an application before the Tribunal by the affected company for restoration of the name of the company in the register . Ext. HH shows that the name of the company was struck off from the register on 30.10.2007 and the representatives of the company approached the Tribunal ( this Court) in the year 2010 i.e. within the stipulated period of 20 years . The certified copy of the order dated 4.10.2010 passed in Co.Pet No. 5/2010 shows that a direction was issued to the ROC to put th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff appellant and he also knew that the name of plaintiff appellant was recorded in the land records against which he paid land revenue. For the said admission the learned court below was wrong in disbelieving the execution of the sale deed, Ext. 3. Mr. Roy also submitted that there was no denial of execution of Ext. 3 by the executor, Jagannath Paul so the question of citing attesting witnesses of the Ext. 3 in proof of execution of Ext. 3 does not arise. The court below wrongly put the emphasis on Section 68 of the Evidence Act. Relying the ratio in Prem Singh and ors vs Birbal and ors reported in (2006) 5 SCC 353 , Mr. Roy argued there is a presumption always that a registered document was validly executed. Such presumption arises u/s 114(c) of the Evidence Act and as per Section 4 of the Evidence Act the Court below ought to have accepted the fact of execution of Ext. 3 as there was no evidence on record disproving the fact of execution . The court below failed to appreciate the evidence on record amounting to perversity in regard to the findings of issue No. 2. In support of the presumption flowing out of the official acts done by the Registrar while registration of a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribe and /or attesting witnesses were examined as required u/s 68 of the Evidence Act which was rightly held by the appellate court. The court below also observed that the plaintiff appellant failed to prove its possession over the suit land. The argument on behalf of the plaintiff appellant to the effect that since the sale deed dated 2.2.1985 was 30 years old, a presumption could be drawn u/s 90 of the Evidence Act was rejected by the first appellate court as on the date of filing of Ext. 3 in the court alongwith the plaint i.e. on 17.12.2008 and on the date i.e. 16.12.2009 on which the Ext.3 was exhibited, the period of 30 years was not completed. For the said reason the presumption was disallowed. In view of the above the first appellate court made no mistake in giving its finding in issue No. 2 by reversing the finding of the trial court. (38) The submissions of the counsel are considered. The suit is for declaration of right, title and interest of the plaintiff appellant company over the suit land and other consequential reliefs like recovery of possession, injunction etc. The plaintiff appellant in its plaint pleaded that the suit land was purchased from one Jagannath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of execution of Ext. 3 nor there was any statement that the vendor put his signature in his presence and how he could identify his signatures. It is also observed that though DW 1 could be said to have admitted the ownership of the plaintiff appellant but the same does not amount to proof of execution of Ext.3 . Under the said circumstance only the first appellate court held the requirement of examination of the scribe and the attesting witnesses in order to prove the execution of Ext.3 as laid down in Section 68 of the Evidence Act. Accordingly the first appellate court held that the plaintiff appellant failed to prove the execution of the Ext. 3 and reversed the finding of the trial court. (42). If the findings of the trial court is considered it failed to take note of the inflexible burden on the plaintiff appellant u/s 101 of the Evidence Act in its proper perspective vis- -vis the pleadings of the parties. The said Section 101 stipulates that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those fact exist. So as the plaintiff appellant claimed its rights, title and inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the execution of the sale deed . Accordingly I do not find any wrong application of the provision of Section 68 of the Evidence Act by the first appellate court as raised by Mr. Roy. In view of the discussions the second substantial question of law is decided against the plaintiff appellant thereby upholding the finding of the first appellate court in issue No. 2. (44). The respondent defendant at a belated stage after this second appeal was fixed for hearing out of turn, filed a cross objection which is yet to be registered due to delay in filing alongwith a delay condonation petition. I have heard both the learned counsel and is of considered opinion that the cross objection under Order XLI Rule 22 CPC is not required inasmuch as the first appellate court had already decided the cross objection of the defendant respondent wherein the cross objector pressed for taking up the issue of limitation as the defendant respondent raised the plea of adverse possession. On perusal of the impugned judgment I am satisfied that the first appellate court rightly considered the pleadings of the defendant respondent wherein the ownership of the plaintiff appellant was denied and moreover he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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