Allowed

Mohamed Abubacker v. Bhughari

Madras HC15 Mar 2022SA/1162/2013

Case brief

AI extract

What is this about?

In a Second Appeal under CPC Over Order 41 Rule 31 CPC, the Madras High Court held that the lower Appellate Court mechanically confirmed trial and appellate decrees without assigning reasons. The matter was remanded to the Courts below to consider merits and pass judgment in accordance with law, with strict timelines imposed. The Second Appeal was allowed on these terms.

What did the court decide?

The judgment and decree of the lower appellate Court are set aside; the matter is remanded to the lower appellate Court for final hearing and disposal within specified timelines.

Mohamed Abubacker Vs Bhughari — Civil Procedure and Limitation | Madras HC (2022)

¶1

S.A.No.1162 of 2013

¶2

iIN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

DATED : 15.03.2022

¶4

CORAM

¶5

THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH

¶6

S.A.No.1162 of 2013 and M.P.No.1 of 2013

¶7

Mohamed Abubacker ...Appellant

¶8

Vs.

¶9

Bhughari ... Respondent

¶10

PRAYER : Second Appeal filed under Section 100 of C.P.C., against the Judgment and Decree dated 16.08.2011 passed in A.S.No.2 of 2010 on the file of the Court of the District Judge No.II, Kancheepuram, by confirming the judgment and decree dated 11.10.2007 passed in O.S.No.246 of 2002 on the file of the Court of the Subordinate Judge, Kancheepuram.

¶11

For Appellant : Mr.K.Govi Ganesan For Respondent : Mr.Y.Jyothish Chander

¶12

JUDGMENT

¶13

The defendant is the appellant in the Second Appeal.

¶14

1 of 10

¶15

https://www.mhc.tn.gov.in/judis

¶16

S.A.No.1162 of 2013

¶17

2.The respondent/plaintiff filed a suit for recovery of money against the defendant based on a promissory note.

¶18

3.The case of the plaintiff is that the defendant borrowed a sum of Rs.1,50,000/- and executed a demand promissory note, marked as Ex. A1. The further case of the plaintiff is that the defendant did not repay back the amount and hence, a pre-suit notice was issued to the defendant calling upon the defendant to repay back the amount with interest. Since, the amount was not repaid back by the defendant, the suit came to be filed seeking for recovery of money.

¶19

4.The defendant filed a written statement. He took a defence to the effect that no consideration passed on and the money was not actually paid to the defendant. According to the defendant, there was an independent sale transaction and in order to ensure that the money is paid towards the sale, the promissory note was executed more in the nature of a security and ultimately the Sale Deed itself was registered on 23.11.2001 which was marked as Ex. B1. The defendant has therefore taken a stand that the promissory note is a non-est document and it is being misused by the plaintiff. Accordingly, the defendant had sought for the dismissal of the suit.

¶20

2 of 10

¶21

https://www.mhc.tn.gov.in/judis

¶22

S.A.No.1162 of 2013

¶23

5.The trial Court on considering the oral and documentary evidence, came to a categorical conclusion that the plaintiff has made out a case and the suit was decreed as prayed for through a Judgment and Decree dated 11.10.2007. Aggrieved by the same, the defendant filed an appeal before the learned Additional District Court II, Kancheepuram in A.S.No.2 of 2010. The appellate Court confirmed the Judgment and Decree of the trial Court and dismissed the appeal through Judgment and Decree dated 16.08.2011. Aggrieved by the same, the defendant has filed the present Second Appeal.

¶24

6.Heard the learned counsel appearing on either side and carefully perused the findings rendered by both the Courts below.

¶25

7.During the course of arguments, this Court framed the following substantial question of law;

¶26

Whether the lower Appellate Court erred in not formulating the points for consideration and assigning proper reasons for confirming the Judgment of the trial Court and the same is not in accordance with the mandate prescribed under Order 41 Rule 31 of C.P.C.?

¶27

3 of 10

¶28

https://www.mhc.tn.gov.in/judis

¶29

S.A.No.1162 of 2013

¶30

8.This Court carefully went through the judgment of the lower appellate Court. The points for determination framed by the lower appellate Court is extracted hereunder:

¶31

1/ tprhuiz ePjpkd;wk; gpwg;gpj;j jPh;g;g[k;. jPh;g;ghiza[k; rhpahdjh?

¶32

2/ nky;KiwaPl;lhsh; nfhhpa ghpfhuk; nky;KiwaPl;lhsUf;F fpilf;fj;jf;fjh?

¶33

9.The reasoning assigned by the lower appellate Court is extracted hereunder:

¶34

,Ujug;g[ thjKk; nfl;fg;gl;lJ/ tHf;F nfhg;g[fs;

¶35

rhp ghh;f;fg;gl;lJ/ ,e;j tHf;fpy; fw;wwp[e;j nky;KiwaPl;lhsh;-gpujpthjp jug;g[ tHf;Fiu"h; mth;fs; Rl;of;fhl;oa[s;s midj;J Kd;ndhoj; jPh;g;g[iufSk; cw;W nehf;fg;gl;lJ/ nkw;brhd;d midj;J jPh;g;g[iufSk; ,e;j tHf;Ff;F bghUe;Jtjhf mikatpy;iy/ Vbdd;why; ,e;j tHf;fpy; thjp. gpujpthjpf;F ,ilna Vw;gl;l bfhLf;fy;. th';fy; tpisthf flDWjpr; rPl;L vGjg;gl;Ls;sJ/ flDWjpr; rPl;oy; fz;Ls;s ifbahg;gk; gpujpthjpa[ilaJ

¶36

https://www.mhc.tn.gov.in/judis

¶37

4 of 10

¶38

S.A.No.1162 of 2013

¶39

vd;W xg;g[f;bfhz;Ls;shh;/ mnj nghy; gpujpthjp. thjpaplk; ,Ue;J flDWjpr; rPl;oy; Fwpg;gplg;gl;Ls;s bjhifia bgw;Wf; bfhs;stpy;iy vd;W Twfpwhh;/ nkYk;. ,e;j flDWjpr; rPl;L ntW xU nehf;fj;Jf;fhf vGjg;gl;lJ. fl;lhag;gLj;jp. mr;RWj;jp. gaKWj;jp ifbahg;gk; th';fg;gl;ljhf nky;KiwaPl;lhshpd; tHf;Fiu"h; thJiuapd; nghJ Fwpg;gpl;Ls;shh;/ Mdhy; ,e;j flDWjpr; rPl;L vGjpat[ld; gpujpthjp kW ehnsh my;yJ kW thunkh my;yJ kW khjnkh vt;tpj eltof;ifa[k; vLf;ftpy;iy/ tHf;fwp"h; mwptpg;g[ my;yJ nghyPrpy; g[fhh; my;yJ ePjpkd;wj;jpy; jdp g[fhh; vJt[k; bfhLf;ftpy;iy/ ntW xU xg;ge;jj;Jf;fhf ntW xU nehf;fj;Jf;fhf nky;KiwaPl;lhsh;-gpujpthjp vGjpf; bfhLj;j flDWjpr; rPl;L rl;lg;go Vw;Wf; bfhs;sf; Toa flDWjpr; rPl;L jhd;/ Vbdd;why; thjpf;Fk;. gpujpthjpf;Fk; Vw;gl;l xg;ge;jj;jpd; mog;gilapy; jhd; mth; ifg;gl !;lhk;g; ngg;ghpy; ifbahg;gkpl;L flDWjpr; rPl;L vGjpf; bfhLj;Js;shh;/ vdnt. tprhuiz ePjpkd;wk; midj;J mk;r';fisa[k; ftdj;jpy; vLj;Jf; bfhz;L Mtzj;jpd; mog;gilapYk;. rhl;rpfspd; rhl;rpa';fspd; mog;gilapYk; khz;g[kpF cr;r ePjpkd;wk; kw;Wk; khz;g[kpF cah;ePjpkd;wk; tH';fpa

¶40

https://www.mhc.tn.gov.in/judis

¶41

5 of 10

¶42

S.A.No.1162 of 2013

¶43

Kd;ndhoj; jPh;g;g[iufspd; mog;gilapYk; jPh;g;g[

¶44

tH';fpa[s;sjpy; ve;jtpj jtWk; fhzg;gltpy;iy/ tprhuiz ePjpkd;wk; gpwg;gpj;j jPh;g;g[ rl;lj;Jf;Fk;. rhl;rpaj;Jf;Fk;. ,aw;if epajpf;Fk; cl;gl;L jPh;g;g[ gfug;gl;Ls;sJ/ vdnt. tprhuiz ePjpkd;wk; thjp jhthtpy; nfhhpa ghpfhuj;ij bgwj;jf;fth; vd;W tH';fpa jPh;g;gpy; jiyapLtjw;F nghJkhd fhuz;'fs; ,y;iy vd;Wk;. mjpy; jiyapLtjw;F vt;tpj Kfhe;jpu';fSk; fhzg;gltpy;iy vd;Wk; jPh;khdpj;J tprhuiz ePjpkd;wk; gpwg;gpj;j jPh;g;gpid cWjp bra;J ,k;nky;KiwaPl;il js;Sgo bra;J jPh;g;gspf;fg;gLfpwJ/

¶45

The lower appellate Court as the last Court of fact ought to have re-appreciated the entire evidence available on record and should have dealt with the reasonings of the trial Court and also the grounds taken by the appellant in the appeal and thereafter, should have given its own reasons to confirm the judgment and Decree of the trial Court. The appellate Court has mechanically confirmed the Judgment and Decree of the trial Court without assigning any reasons and in short it is a slip shod judgment which is not in conformity with Order 41 Rule 31 of C.P.C. The Substantial question of law framed by this Court is answered accordingly.

¶46

6 of 10

¶47

https://www.mhc.tn.gov.in/judis

¶48

S.A.No.1162 of 2013

¶49

11.In view of the above, this Court is left with no other alternative except to remand the matter back to the file of the lower appellate Court. This Court is consciously not touching upon the merits of the case in order to ensure that the lower appellate Court considers the merits of the case independently and also the findings of the trial Court and pass a judgment in accordance with law. However, taking into consideration, the fact that the case has been pending for the last twenty years, this Court wants to fix strict timelines for the completion of the appeal.

¶50

12.In view of the above discussion, the judgment and decree of the lower appellate Court made in A.S.No.2 of 2010, dated 16.08.2011 is set aside. The matter is remanded back to the file of the District Court No.II, Kancheepuram. The parties shall be present before the Court on 25.03.2022. The learned District Judge shall fix a date for the final hearing of the appeal on 04.04.2022. The lower appellate Court shall not grant adjournment and hearing shall go on the date fixed by the lower appellate Court. The judgment shall be delivered on or before 29.04.2022. The compliance of the directions given by this Court shall be reported before this Court.

¶51

7 of 10

¶52

https://www.mhc.tn.gov.in/judis

¶53

S.A.No.1162 of 2013

¶54

13.The Second Appeal is allowed in the above terms. The defendant had deposited 50% of the amount by virtue of the condition imposed by this Court and the same shall remain in the deposit of the suit and depending upon the result in the appeal, appropriate directions can be issued by the lower Appellate Court. Considering the facts and circumstances of the case, there will be no order as to costs. Consequently, connected miscellaneous petition is closed.

¶55

15.03.2022

¶56

Index :Yes/No Internet :Yes/No ssr

¶57

Note:Issue Order Copy on 17.03.2022

¶58

8 of 10

¶59

https://www.mhc.tn.gov.in/judis

¶60

S.A.No.1162 of 2013

¶61

¶62

1.The District Judge No.II, Kancheepuram.

¶63

2.The Subordinate Judge, Kancheepuram.

¶64

9 of 10

¶65

https://www.mhc.tn.gov.in/judis

¶66

S.A.No.1162 of 2013

¶67

N.ANAND VENKATESH.,J

¶68

ssr

¶69

S.A.No.1162 of 2013 and M.P.No.1 of 2013

¶70

15.03.2022

¶71

10 of 10

¶72

https://www.mhc.tn.gov.in/judis

Mohamed Abubacker v. Bhughari

Case brief

What is this about?

What did the court decide?

Mohamed Abubacker v. Bhughari

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M.Velu Vs Lakshmi

R.Nallaiyan Vs P.Periyasamy

Sampath Vs Baby

C. Murugan (Decased) Vs Madhu (Died)

Periyammal Vs the District Collector

N. Kuppyammal (Died Vs P. Nachayee