# Indraj Singh v. Kashi Ram

- **Citation:** (2020) 8 ILRA 317
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-19
- **Case number:** Second Appeal No. 567 of 1995
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indraj-singh-v-kashi-ram-46044
- **Pages:** 24

## Headnote

(A) Civil Law - Code of Civil Procedure
,1908 - Section 100 CPC - case of an
opportunity lost - Suit for Specific
Performance - Order LXI Rule 11, -
Specific Relief Act - Section 26(1)(b) &
(c) read with sub-Sections (2) and (4) of
Section 26 - Indian Evidence Act -
Section 92 - Limitation Act of 1908 -
Order XLI Rules 23 - Remand of case by
Appellate Court and Rules 23-A -
Remand in other cases - Order XLII Rule
1, read in conjunction with Order XLI
Rules 16 and 31 CPC. - Indian Evidence
Act - Section 92, Section 101 - no law
that makes it incumbent upon the Lower
Appellate Court to decide the point
relating to rectification, in terms of the
order of remand, which the appellant
did not urge . (Para-47)

Suit for Specific Performance of an agreement
to reconvey the suit property and recovery of
possession - defendant is the appellant before
the Lower Appellate Court - unsuccessful in
the first instance before the Lower Appellate
Court - carried a second appeal to this Court -
secured a remand with a direction to decide
the point regarding his plea relating to
rectification of the contract, subject matter of
action - plea was to be decided bearing in
mind the provisions of Section 26 of the
Specific Relief Act and Section 92 of the
Indian Evidence Act. - At the hearing, the
defendant who secured the order of remand
in the earlier second appeal did not address
the Court on the point that the Lower
Appellate Court was ordered to decide -
Rather, he appears to have addressed the
Court on other points, all of which were
decided against him. (Para - 47)

HELD:- It is, therefore, not open to the
defendant to ask this Court to decide those
substantial questions of law, based on a point
that he did not at all canvass at the hearing
of the appeal before the Lower Appellate
Court. Indeed, it is a case of an opportunity
lost. This Court, therefore, refrains from
answering the two substantial questions of
law under reference. (Para - 48)

Second Appeal dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,866 of 81,109. This is a partial read: ask again with offset=39866 for what follows._

8 All. Indraj Singh Vs. Kashi Ram
317
(2020)08ILR A317
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.06.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 567 of 1995

Indraj Singh ...Appellant
Versus
Kashi Ram ...Respondent

Counsel for the Appellant:
Sri H.N. Sharma, Sri Akhtar Ali, Sri Anupam
Kulshreshtha, Sri Manish Mishra, Sri Ram Lal Mishra

Counsel for the Respondent:
Sri Pramod Jain, Sri R.P. Srivastava

(A) Civil Law - Code of Civil Procedure
,1908 - Section 100 CPC - case of an
opportunity lost - Suit for Specific
Performance - Order LXI Rule 11, -
Specific Relief Act - Section 26(1)(b) &
(c) read with sub-Sections (2) and (4) of
Section 26 - Indian Evidence Act -
Section 92 - Limitation Act of 1908 -
Order XLI Rules 23 - Remand of case by
Appellate Court and Rules 23-A -
Remand in other cases - Order XLII Rule
1, read in conjunction with Order XLI
Rules 16 and 31 CPC. - Indian Evidence
Act - Section 92, Section 101 - no law
that makes it incumbent upon the Lower
Appellate Court to decide the point
relating to rectification, in terms of the
order of remand, which the appellant
did not urge . (Para-47)

Suit for Specific Performance of an agreement
to reconvey the suit property and recovery of
possession - defendant is the appellant before
the Lower Appellate Court - unsuccessful in
the first instance before the Lower Appellate
Court - carried a second appeal to this Court -
secured a remand with a direction to decide
the point regarding his plea relating to
rectification of the contract, subject matter of
action - plea was to be decided bearing in
mind the provisions of Section 26 of the
Specific Relief Act and Section 92 of the
Indian Evidence Act. - At the hearing, the
defendant who secured the order of remand
in the earlier second appeal did not address
the Court on the point that the Lower
Appellate Court was ordered to decide -
Rather, he appears to have addressed the
Court on other points, all of which were
decided against him. (Para - 47)

HELD:- It is, therefore, not open to the
defendant to ask this Court to decide those
substantial questions of law, based on a point
that he did not at all canvass at the hearing
of the appeal before the Lower Appellate
Court. Indeed, it is a case of an opportunity
lost. This Court, therefore, refrains from
answering the two substantial questions of
law under reference. (Para - 48)

Second Appeal dismissed. (E-7)

List of Cases cited:-

1. St. of Mah. Vs Ramdas Shrinivas Nayak &
anr., AIR 1982 SC 1249.

2.
Konappa
Mudaliar
Vs
Kusalaru
@
Munuswami Pillai, AIR 1970 MAD 328

3. Nair Service Society Ltd. Vs K. C. Alexander
& ors., AIR 1968 SC 1165

4. Rama Kant Vs Board of Revenue & ors.,
2005 1 AWC 929 All

5. Bal Govind Lohia Vs Narayan Prasad Lohia
& ors, (2009) 17 SCC 349

6. A.P. SRTC Vs S. Jayaram, (2004) 13 SCC 792

7. Thakur Sukhpal Singh Vs Thakur Kalyan
Singh & anr., AIR 1963 SC 146

(Delivered by Hon'ble J.J. Munir, J.)

1. ''You can lead a horse to water
but you can't make it drink'. The facts of
this case bear reaffirming testimony to
the wisdom of this proverb.
318 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This is a defendant's Second
Appeal arising from a Suit for Specific
Performance
of
an
agreement
to
reconvey the suit property and recovery
of possession. The suit property is
agricultural land bearing Khasra no.694,
admeasuring 2 bigha, 9 biswa and 3
biswansi, situate at Mauza Rampur,
Pargana and District Muzaffar Nagar.

3. The Appeal has been brought by
the defendant, Indraj Singh from the
appellate decree of Sri Ram Surat, the
then Second Additional District Judge,
Muzaffar
Nagar,
dated
31.03.1995,
dismissing Civil Appeal no.234 of 1976
with costs, and affirming an original
decree of Sri D.C. Srivastava, the then
Additional Civil Judge, Muzaffar Nagar,
dated 27.08.1976, decreeing with costs
Original Suit no.64 of 1974 for the relief
mentioned hereinbefore.

4. The decree of the Court of first
instance was affirmed earlier by the
Lower Appellate Court in Civil Appeal
no.234 of 1976 by its judgment and
decree of 30th April, 1977. The said
decree was set aside by this Court in
Second Appeal no.1732 of 1977 with an
order of remand to the Lower Appellate
Court requiring the appeal to be decided
afresh. It is in consequence of the order
of remand made by this Court in the
Second Appeal, last mentioned that the
impugned appellate decree has come to
be passed.

5. The defendant who has failed
before the Lower Appellate Court, a
second time, has brought the present
Second Appeal.

6. Kashi Ram, the plaintiffrespondent (for short the plaintiff)
instituted Original Suit no.64 of 1974
with allegations to the effect that the
defendant on the plaintiff's request lent
him a sum of Rs.2500/-. The plaintiff
could not repay the debt. Rather, he was
in further need of Rs.2000/- that led him
to request the defendant again. The
defendant agreed to lend a further sum of
Rs.2000/- on condition that the suit
property be conveyed by the plaintiff to
the defendant for a period of three years
with a covenant that if within this period
of three years, the plaintiff would
liquidate the debt by repaying a sum of
Rs.7000/- to the defendant, the defendant
shall reconvey the suit property in favour
of
the
plaintiff
by
a
registered
conveyance, and that thereupon the entire
debt, the principal and accrued interest
included, shall stand discharged. It is the
plaintiff's case that he needed the money,
and, therefore, agreed to the terms. The
plaintiff, in consequence, executed a
registered sale deed dated 27.07.1971
transferring the suit property in favour of
the defendant. The sale deed carried a
recital that a sum of Rs.7000/- has been
advanced by the defendant. It is pleaded
that the plaintiff received a sum of
Rs.4500/- (and not Rs.7000/-) in the
manner that Rs.2500/- were received by
the plaintiff as loan from the defendant,
and further that Rs.2000/- (also by way
of loan) were received by the plaintiff
from the defendant. Thus, according to
the plaintiff, he received a total sum of
Rs.4500/- in loan from the defendant.
The plaintiff's case is that a sum of
Rs.7000/- was shown as consideration in
the sale deed, where the additional sum
of Rs.2500/- accounts for the interest
payable on the principal of Rs.4500/-,
which the plaintiff had promised to pay
back within the time period of three
years. The plaint case shows that the
8 All. Indraj Singh Vs. Kashi Ram
319
plaintiff was to remain in possession of
the suit property.

7. There is a pleading also to the
effect, on behalf of the plaintiff, that the
defendant secured the plaintiff's thumb
impressions on some blank papers. The
plaint
case
then
proceeds
that
contemporaneously with the execution of
the sale deed dated 27.07.1971 in favour
of the defendant by the plaintiff, an
agreement dated 27.07.1971 was also
executed between the plaintiff and the
defendant, where the defendant agreed to
reconvey the suit property to the plaintiff
on the following conditions:

"(a) that in case the plaintiff or
his heirs paid a sum of Rs.7000/- to the
defendant or his heirs, the defendant or
his heirs would execute a sale deed in
favour of the plaintiff or his heirs
(reconvey the suit property);

(b) the expenditure towards
execution
of
the
sale
deed
(reconveyance) would be borne by the
plaintiff;

(c) in the event the defendant or
his heirs showed any slackness or refuse
to execute a deed of re-conveyance to the
plaintiff or his heirs, it would be open to
the plaintiff to enforce execution of the
sale deed (re-conveyance) through an
action brought for the purpose in Court;
and

(d) it was also covenanted that
in the eventuality of the plaintiff failing to
get a sale deed executed in his favour, on
or before 26.07.1974, the rights of the
plaintiff to enforce re-conveyance would
be extinguished."

8. It is then pleaded in paragraph
no. 4 of the plaint that the plaintiff asked
the defendant to receive the contracted
sum of Rs.7000/- and execute a sale deed
in favour of the plaintiff, but to no avail.
The plaintiff was, therefore, compelled to
serve a notice dated 14.06.1974 through
his learned Advocate by registered post
calling upon the defendant to execute a
sale deed and get it registered in favour
of the plaintiff, upon receipt of the
contracted sum of Rs.7000/-. The notice
aforesaid fixed 15th July, 1974 as the
date on which the defendant may execute
the sale deed. It is the plaintiff's case that
the said notice was answered by the
defendant taking an incorrect stand that it
was agreed between parties that in
addition to the sum of Rs.7000/-, interest
would also be payable, which amounted
to Rs.6,350/-. It is pleaded specifically
that no such term regarding payment of
interest was ever contracted by parties.

9. It is averred that on 15th July,
1974, the plaintiff with Rs.7000/- in hand
to be paid to the defendant, along with
requisite expenses for the execution of a
sale deed, went to the office of the SubRegistrar, Muzaffar Nagar, but the
defendant did not turn up. Thereupon, the
plaintiff also made an application to the
Sub-Registrar. It is specifically pleaded
in paragraph no. 7 of the plaint that the
plaintiff has always been ready and is
still ready to get the sale deed executed,
and further that he has always been ready
and is still ready to perform his part of
the contract. However, faced with a
denial by the defendant, the plaintiff
brought
this
suit
for
Specific
Performance
of
the
agreement
to
reconvey. Further, relief for recovery of
possession of the suit property was
sought that in case the Court comes to the
conclusion that the plaintiff is not in
possession,
he
may
be
delivered
possession.
320 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The defendant in his written
statement has denied the plaintiff's case on
allegations that it is incorrect to urge that
the plaintiff received Rs.4500/- only. It is
averred that Rs.5000/- were advanced to
the plaintiff initially and Rs.2000/- were
paid before the Sub-Registrar. It is pleaded
that it was covenanted between parties that
interest would be chargeable on the sum of
Rs.7000/- at the rate of Rs.2/- per mensem,
payable annually. It is also pleaded that in
the event of default in the payment of
interest, compound interest would become
chargeable. The defendant has admitted
that it was agreed between parties that the
plaintiff would retain possession of the suit
property for three years and that he will
bear expenses of the sale deed (reconveyance), which was covenanted to be
executed within the time period of three
years. In the event of default on the
plaintiff's part to get a deed of reconveyance executed in his favour, he
would loose his right to secure reconveyance of the suit property. It is
pleaded by the defendant that he was
entitled to receive a sum of Rs.13,350/- on
account of the transaction, but the plaintiff
was not willing to pay the aforesaid sum of
money. The plaintiff offered a sum of
Rs.7000/-, in consideration for the reconveyance contracted. It is, therefore,
claimed that there was breach of the
plaintiff's part of the agreement to reconvey
the suit property. It was also pleaded that
the plaintiff was not willing to get the sale
deed executed. The fact that expenses to
secure the deed of re-conveyance were to
be borne by the plaintiff, is not disputed.
But, the other plea that the defendant had
secured the plaintiff's thumb impression on
several blank papers was denied. Then
there is this crucial plea in the written
statement that the agreement to reconvey
the suit property does not express the entire
agreement
between
parties,
or
their
intention in all its fullness and detail. The
agreement is liable to be rectified. It is also
the defendant's case that in the event the
agreement to reconvey is rectified to bring
it in accord with the true intention of
parties, the plaintiff would loose his right to
re-conveyance on the terms that he has
pleaded. It is the further case of the
defendant that he did appear before the
Sub-Registrar on 15.07.1974, where he met
the plaintiff. The plaintiff wanted an
extension of time for performance of the
suit agreement which was not acceptable to
the defendant. It is, thus, the defendant's
case that the plaintiff committed breach of
contract. Upon the plaintiff refusing to get
the property re-conveyed, the defendant
took possession of the suit property. The
suit
property
was
mutated
in
the
defendant's name, who is in possession. On
the strength of the aforesaid case, the
defendant asked the suit to be dismissed.

11. Based on the pleadings of
parties, the following issues were struck:

"1. Whether the defendant
agreed to pay interest at the rate of
Rs.2% per month as alleged in para II of
the W.S. on the amount of Rs.7000/- the
sale consideration and the property in suit
was to be reconveyed to the plaintiff on
the said conditions as alleged in para 11
of the W.S.?

2. Whether the plaintiff or the
defendant committed the breach of the
terms of the agreement for sale in suit
dated 7.7.1971 as alleged?

3. To what relief, if any, is the
plaintiff entitled?

4. Whether the plaintiff is in
possession on the plot in suit?

5. Whether the agreement for
resale in suit is liable to be rectified for
8 All. Indraj Singh Vs. Kashi Ram
321
the reasons mentioned in para 3 of the
W.S. 13 Ka?"

12. The Trial Court decided issue
no.4 in favour of the defendant holding
him to be in possession. Issues nos.1 and
5 were dealt with together by the Trial
Court and answered in the manner that
the 5th issue was decided against the
defendant, holding that the agreement to
reconvey was not liable to be rectified,
and likewise, issue no.1 also was decided
against the defendant holding that there
was no covenant to pay interest or
compound interest, over and above the
sum of Rs.7000/-, as a condition
precedent to re-conveyance. In answer to
issue no.2, the Trial Court considered the
question of readiness and willingness and
held in favour of the plaintiff with an
answer to the issue in terms that it was
the defendant who committed breach of
the contract to reconvey. On these
findings, the Trial Court decreed the suit.

13. Aggrieved, the defendant
preferred Civil Appeal no.234 of 1976 to
the District Judge, Muzaffar Nagar. This
appeal on assignment came up for
determination before the llnd Additional
District Judge, Muzaffar Nagar on April,
30th, 1977. The learned Additional
District Judge by his judgment and
decree dated 30.04.1977 dismissed the
appeal with costs, and affirmed the Trial
Court.

14. The defendant dissatisfied,
carried a Second Appeal to this Court
being Second Appeal no.1732 of 1977.
The appeal was allowed by this Court
vide
judgment
and
order
dated
26.03.1993, setting aside the decree of
the Lower Appellate Court with a remand
to that Court to hear and decide the
appeal afresh in accordance with law.
The decision on remand was to be
rendered bearing in mind the guidance in
the judgment of this Court.

15. Civil Appeal no.234 of 1976
was, thus, restored to file of the Lower
Appellate Court, and heard afresh. The
Lower Appellate Court by its judgment
and
decree
dated
31.03.1995
has
dismissed the appeal with costs and
affirmed the Trial Court, again. It is
against this decree of the Lower
Appellate Court that the defendant is now
in Appeal.

16. At the time when this Appeal
was heard under Order LXI Rule 11
CPC, the following order was passed on
the
memorandum
of
Appeal,
on
18.05.1995:

"Heard learned counsel for the
appellant.

It is argued that the Ist
appellate Court has failed to comply with
the directions given by this Court in the
remand order dated 26.3.93 which is
Annexure 3 to the stay application.

Second appeal is admitted.

Issue notice."

17.

Heard
Sri
Anupam
Kulshreshtha, learned Counsel for the
defendant and Sri Pramod Jain, learned
Senior Advocate assisted by Sri R.P.
Srivastava, learned Counsel appearing on
behalf of the plaintiff. During the course
of hearing on 13.03.2019, though much
was made by Sri Anupam Kulshreshtha
about
the
manifest
error
of
law
committed by the Courts below in
patently misconstruing the provisions of
Section 26(1)(b) & (c) read with subSections (2) and (4) of Section 26 of the
322 INDIAN LAW REPORTS ALLAHABAD SERIES
Specific Relief Act, it was pointed out by
this Court to learned Counsel appearing
for the parties that there was no
substantial question of law framed on this
point at the time of admission of this
Appeal to hearing. Accordingly, on
13.03.2019, the following substantial
question of law was framed by this
Court:

"Whether rectification to an
instrument based on a plea of fraud or
mutual mistake of the parties can be
sought by the defendant in a suit relating
to a right arising under such instrument
without a specific plea in the written
statement to that effect?"

18. It must be remarked here that
the order dated 13.03.2019 mentions that
the question above extracted is being
framed as a further substantial question
of law, that arises for consideration in
this Appeal, apart from the question on
which this Appeal has been admitted.
This order came to be passed on the
assumption that this Court's note of the
argument advanced by the learned
Counsel for the defendant constituted a
substantial question of law as recorded in
the order dated 18.05.1995, admitting the
Appeal to hearing. But, a little further
into the hearing, it was agreed by learned
Counsel for both parties that the order of
admission passed by this Court on
18.05.1995, in fact, did not frame any
substantial question of law or was any
other substantial question of law framed
later, on which this Appeal could be
heard
except
the
one
framed
on
13.03.2019.

19. This Court also finds that the
order dated 18.05.1995 does no more
than to take notice of the submissions of
the learned Counsel in support of the
motion to admit this Appeal to hearing,
but does not frame any substantial
question of law. The learned Counsel
appearing for both sides, therefore, by
agreement limited and confined their
submissions to the substantial question of
law extracted above, until conclusion of
hearing on 26.04.2019 when judgment
was reserved. Notwithstanding the very
comprehensive submissions of parties on
the substantial question of law under
reference, it appeared to this Court that
certain vital aspects of the matter that
stemmed from the substantial question of
law on which parties had so elaborately
addressed,
required
clarification.
Accordingly, this appeal was posted for
further hearing on 20.01.2020. It was
heard on 23.01.2020 for a short while
and then again on 03.02.2020. On
03.02.2020,
two
other
substantial
questions, that are an inseparable part of
the one framed on 13.03.2019, were
further framed for reasons assigned. The
relevant
part
of
the
order
dated
03.02.2020 framing the two additional
substantial questions of law, numbered as
questions nos. (1) and (2) is extracted
below:

"During the course of hearing,
certain clarifications were required of the
learned counsel appearing for the parties
regarding non decision of the issue about
rectification of the agreement by the
Lower Appellate Court on the basis of
oral evidence, that being the purpose for
which this matter was remanded to the
Lower Appellate Court by this Court,
vide
judgment
and
order
dated
26.03.1993, passed in Second Appeal
No. 1732 of 1977. There was also this
issue about the standard by which a plea
seeking rectification on ground of mutual
8 All. Indraj Singh Vs. Kashi Ram
323
mistake to a solemn document of parties
ought to be proved. This question arose
also during the course of hearing. This
Court finds that for the effective
disposition of this appeal, two additional
questions are required to be framed
further for the reasons given above.
These reasons have been recorded
bearing in mind the decision of Supreme
Court in Vijay Arjun Bhagat and others
vs. Nana Laxman Tapkire and others
2018 (6) SCC 727. In the opinion of this
Court,
the
following
additional
substantial questions of law arise for
consideration in this appeal:

"(1) Whether in the event of
remand to the first Appellate Court
requiring it to decide a certain point, or
issue
arising
between
parties,
the
Appellate Court is bound to decide the
said question, even if the party being the
appellant before it, does not urge the
point on which the matter has been
remanded to the first Appellate Court?

(2) Whether in the case of a
plea of mutual mistake under Section
26(1)

(c) of the Specific Relief
Act being raised by the defendant, the
defendant is required to prove the case of
mutual mistake by the most satisfactory
evidence of a very(sic high) standard?

.........."

20. At the resumed hearing on
03.02.2020, learned Counsel for the
parties
addressed
this
Court
very
elaborately
on
all
the
substantial
questions of law, including the one on
which they had earlier been heard. The
hearing remained inconclusive on that
date and was adjourned to 10.02.2020.
On
10.02.2020,
this
appeal
was
adjourned without hearing to 18.02.2020.
On the last mentioned date, learned
Counsel for both sides concluded their
submissions, and judgment was reserved.

21. Sri Anupam Kulshreshth,
learned Counsel for the defendant and Sri
Pramod Jain, learned Senior Advocate
for
the
plaintiff,
very
elaborately
addressed this Court on the requirements
of Section 26(1)(b) & (c) read with subSections (2) and (4) of the Specific Relief
Act, asking this Court to answer the
substantial question of law framed on
13.03.2019 and the second question
framed on 03.02.2020, in the manner
urged by them. Before, this Court may
venture to consider those two questions,
it would be apposite to place in a
different sequence the three substantial
questions of law for an answer. The
reasons to do so is that an answer to
substantial question of law no.(1) framed
on 03.02.2020 one way, might obviate
the necessity to answer the other two.

22. This Court has carefully
perused the judgment of the Trial Court,
the judgment in appeal earlier rendered
that was set aside by this Court in second
appeal with an order of remand, the
judgment of this Court in Second Appeal
no.1732 of 1977, and, of course, the
judgment passed by the Lower Appellate
Court, now under appeal. A perusal of
the judgment passed by the Trial Court
shows that it did address the question
relating to rectification of the contract,
subject matter of action here. It appears
that the issue was elaborately tried by the
Trial Court and the parties heard fully, as
the judgment reflects. The Trial Court
answered
issue
no.(5)
about
the
defendant's plea for a rectification against
him in the following words that appear at
the end of a very elaborate finding based
on evidence:
324 INDIAN LAW REPORTS ALLAHABAD SERIES

"Thus, after considering the
entire material on record and the
circumstances of the case, I am of the
view that there was no agreement to
charge interest and compound interest on
24% per annum over Rs.7000/- and that
Rs.4500/- only were advanced to the
plaintiff. The result, therefore, is that
there is no case of mutual mistake and as
such the defendant is not entitled to get
the agreement for resale rectified. Issue
no.(5)
is,
therefore,
answered
in
negative."

23. A perusal of the judgment
earlier rendered in appeal on April, the
13th 1977 shows that rather cryptic
findings of affirmation were recorded by
the learned Additional District Judge on
the issue relating to mutual mistake in the
drawing up of the contract, subject matter
of action. This Court need not say
anything further about that judgment
since it has already been set aside in the
earlier appeal from the appellate decree
by this Court. It is nevertheless of prime
importance to look into the terms of the
judgment of remand passed by this Court
in Second Appeal no.1732 of 1977. This
Court while allowing the earlier second
appeal
took
careful
note
of
the
defendant's
plea
about
a
claimed
rectification
to
the
contract
which
according to him had not been considered
by the Lower Appellate Court in the
judgment, then under challenge. This
Court was of opinion that the plea
seeking rectification or reformation of
the contract, subject matter of action,
required a careful decision by the Lower
Appellate Court in view of the provisions
of Section 26 of the Specific Relief Act
and Section 92 of the Indian Evidence
Act. This Court, therefore, ordered a
remand to the Lower Appellate Court
with a clear guidance that the said Court
would decide this point about the claimed
rectification by the defendant on the basis
of evidence on record. At the same time,
the judgment of this Court made open to
the parties all other pleas that they may
be advised to urge in support of their
respective cases. The judgment was,
therefore, an open remand to the Lower
Appellate Court for decision of the
appeal afresh. Nevertheless, the judgment
did, particularly, open an opportunity to
the defendant to canvass his plea about
rectification to the contract, subject
matter of action, in terms that he had
pleaded. The relevant part of the
judgment of this Court in the earlier
second appeal is quoted infra:

"In para 13 of the written
statement the defendant had pleaded that
the agreement deed Ext. 1 was rectified
as there was an oral agreement for
payment of interest. Learned counsel for
the appellant has relied section 26 of the
Specific Relief Act and section 92 of the
Evidence Act. He has also referred to the
decision of this Court in Brij Kishore Rai
versus Lakhan Tewari AIR 1978 Alld.
314. In the said decision it was held that
even if a document is silent as to interest,
oral evidence with regard to the terms
and conditions of the loan and right of
interest should be allowed. He has also
referred to Radha Singh versus Munshi
Ram AIR 1927 Cal. 605. On the other
hand learned counsel for respondent has
contended that there was no error of law
in the impugned judgment. He has also
urged that only a sum of Rs.2000/- was
paid to the plaintiff and not Rs.7000/- at
the time of sale deed.

So far as amount which was
paid to the plaintiff is concerned, a
perusal of the sale deed 27.7.71 shows
8 All. Indraj Singh Vs. Kashi Ram
325
that there is mentioned that a sum of
Rs.5000/- was paid to the plaintiff before
execution of the sale deed. Hence,
primafacie
I
cannot
accept
this
contention of the learned counsel for the
respondents, although I am not deciding
this point finally. In the judgment of the
lower court dated 30.4.77 there is no
discussion as to whether the version of
the defendant-appellant about the alleged
oral agreement for payment of interest is
correct or not. When there was a specific
plea of the defendant-appellant that there
was oral agreement regarding payment of
interest then the lower appellate Court
should have considered this plea on the
basis of evidence on record and giving
his findings as to whether this plea of the
defendant is correct or not. A perusal of
the impugned judgment shows that the
lower court has not at all considered
whether there was an oral agreement for
payment of interest or not and it has only
observed that since the term and
condition for reconveyance are clearly
stated in the agreement there is no
question of any oral agreement for
payment of interest. In my opinion this
view of the Court below is not correct
and it should have considered the plea
about an oral agreement of payment of
interest. No doubt after considering the
plea the Court below could have held that
there was in fact no such oral agreement
but the court below could not have
ignored this plea totally."

24. The Lower Appellate Court
while writing the impugned judgment has
dealt with the various points, urged
before it by the defendant. The judgment
shows that the Lower Appellate Court
first considered the defendant's case
about the plaintiff's failure to prove his
readiness and willingness to perform the
part of the contract obliging him. The
Lower Appellate Court answered the
point against the defendant and in the
plaintiff's
favour.
The
next
point
considered is about the defendant's plea
that the suit is premature. This too was
answered against the defendant. A third
point that has been considered is based
on the defendant's plea that time is
essence of the contract and the plaintiff
did not pay the agreed consideration for
re-conveyance within that time. This
point has also been answered against the
defendant and in the plaintiff's favour.
The fourth and the last point urged, as the
impugned judgment would show, is
about the plaintiff not coming to Court
with clean hands. The Lower Appellate
Court has found against the defendant on
this count, as well.

25. In an unnumbered and the
penultimate paragraph of the impugned
judgment, the Lower Appellate Court has
recorded a specific finding in the
following words:

"No other points (sic point) has
been argued by the learned counsel for
the defendant-appellant."

26. A reading of the judgment
impugned from one end to the other,
together with the finding above extracted,
does not spare any doubt that the
defendant did not canvass at all before
the Lower Appellate Court his plea based
on a case for rectification of the contract.

27. Mr. Kulshreshtha and Mr. Jain
appearing for the parties had, during
earlier of the two hearings, urged this
point about the case of parties regarding
rectification of the contract with much
emphasis
and
their
characteristic
326 INDIAN LAW REPORTS ALLAHABAD SERIES
erudition. Much to the dismay of this
Court, the learned Counsel appearing for
both parties and the Court too somehow
glossed over the fact that this point
though fully tried, heard and decided by
the Trial Court, was apparently not
argued at all before the Lower Appellate
Court; and, the defendant does not seem
to have argued this point, even though it
was the foundation of the judgment of
remand earlier passed by this Court, at
the instance of the defendant, in second
appeal. On account of the aforesaid glitch
that occurred during the earlier hearing,
causing it to go awry, this Court found it
imperative to post the matter for further
hearing. At the re-hearing, this Court
pointed out to Mr. Kulshreshtha the fact
that the defendant had not at all argued
the point that was the basis of the
judgment of remand. Mr. Kulshreshtha,
again in his characteristic fairness,
admitted that the point was not argued
before the Lower Appellate Court. Mr.
Jain too, conceded that this aspect had
escaped his attention during the earlier
hearing.

28. It is not the case of the
defendant before this Court that the point
that had been so vociferously argued
before this Court during the earlier
hearing and formed the basis on which
the earlier judgment of remand inter
partes was founded, was indeed argued
but not decided by the Lower Appellate
Court. The first and the second grounds
set out in the memorandum of appeal,
also do not disclose a complaint to the
effect
that
the
point
relating
to
rectification, which the Lower Appellate
Court was asked by this Court to decide
in terms of the judgment of remand, was
in fact argued. There is no grievance
remotely made in the present appeal, that
the
Lower
Appellate
Court
has
incorrectly recorded for a fact the points
canvassed in support of the appeal, or the
fact
mentioned
in
the
impugned
judgment that no other point was urged.
This Court is, thus, assured for a fact that
the point relating to rectification of the
contract, directed to be considered by the
judgment of remand, was never pressed
before the Lower Appellate Court by the
defendant. This satisfaction of the Court
is founded on a careful scrutiny of the
impugned judgment and the grounds
urged in this appeal on the one hand, as
also the very fair concession of Mr.
Kulshreshtha in this regard, on the other.
Upon a note of the most remote caution,
this Court finds that a plea to the effect
that the point relating to rectification was
indeed argued on behalf of the defendant
but not decided, even if urged as a
ground in the present appeal, could never
have been examined by this Court. That
could be done by means of a review
alone, before the same Judge who has
rendered the judgment impugned. The
aforesaid principle of law is too well
settled to call attention to authority.
Nevertheless, an eloquent statement of
the principle is to be found in the
decision of their Lordships of the
Supreme Court in State of Maharashtra
vs. Ramdas Shrinivas Nayak and
another, AIR 1982 SC 1249.

29. Mr. Kulshreshtha, confronted
with the aforesaid facts submitted before
this Court, that it is for this reason that
the order dated 18.05.1995 admitting this
appeal refers to the issue whether
directions carried in the order of remand,
dated 26.03.1993, were observed in
breach by the Lower Appellate Court.
However, as noticed earlier in this
judgment, the order admitting this appeal
8 All. Indraj Singh Vs. Kashi Ram
327
to hearing does not formulate any
substantial question of law. It is for this
reason that this seminal question about
the obligation of an inferior Appellate
Court to decide the particular point which
has been remanded to it by a superior
court, escaped attention at the earlier
hearing. Mr. Kulshreshtha with reference
to substantial question of law no.(1) (the
one
formulated
vide
order
dated
03.02.2020) submits before this Court
that the judgment of the Lower Appellate
Court is not only one that is manifestly
illegal, but a nullity for the reason alone
that it fails to carry out the terms of the
order of remand. He submits that
notwithstanding the defendant's failure to
press the point relating to rectification
that this Court required the Lower
Appellate Court to decide on remand, it
was
the
Lower
Appellate
Court's
obligation
to
decide,
nevertheless.
According to the learned Counsel for the
defendant, the Lower Appellate Court
was bound by the order of remand to
decide the point relating to rectification
of contract, with reference to Section 26
of the Specific Relief Act and Section 92
of
the
Indian
Evidence
Act,
notwithstanding the defendant's silence
about it. According to Mr. Kulshreshtha,
the Lower Appellate Court was obliged
to decide this point, by command of this
Court, on the basis of evidence, where
the said Court would also be required to
examine the validity of the findings of
the Trial Court elaborately written on this
issue. Learned Counsel for the defendant
in support of his submission has called
attention of this Court to a decision of the
Madras
High
Court
in
Konappa
Mudaliar
vs.
Kusalaru
alias
Munuswami Pillai, AIR 1970 MAD
328. In paragraph 3 of the report in
Mudaliar (supra), it has been held:

"3. The question whether it was
open to the lower appellate Court to
apply the provisions of the Limitation
Act of 1963 notwithstanding the order of
remand directing it to consider the
question from the point of view of Art.
142 of the Limitation Act 1908 presents
no difficulty whatsoever. It was not open
to the lower appellate Court to do
anything, but to carry out the terms of the
order of remand, which it has done. Even
if it considered that the order of remand
made by this Court on the earlier
occasion was not in accordance with law,
it was not open to that Court to apply
what it might consider to be the correct
provision of law. The decision of the
Supreme Court on which reliance is
placed for the appellant was rendered on
12-12-1968. This appeal was disposed of
by the lower appellate Court after remand
on 26-6-1964. On that date, the only
decision that was binding on the lower
appellate Court was the decision of the
Full Bench of this Court. Therefore, the
decision of the lower appellate Court was
correct on the facts of the case."
(emphasis supplied)

30. The decision in Mudaliar
(supra) was rendered in the context of
facts where the plaintiff had apparently
sued for possession of a house that he
had purchased from the wife of the
owner's son, the owner's son having left
his father's house some 13 years before
the suit was instituted. The suit was filed
against the vendee from the father's
widow, that is to say, the mother-in-law
of the plaintiff's vendor. The two Courts
below had held title in favour of the
plaintiff. In earlier appeal to the High
Court by the defendant, there was a
remand to the Lower appellate Court
requiring it to record a finding whether
328 INDIAN LAW REPORTS ALLAHABAD SERIES
the plaintiff was in possession within 12
years of the suit. The Lower Appellate
Court post remand had held on the basis
of evidence on record that the plaintiff
was not in possession within 12 years of
the suit. By time a second appeal was
brought by the plaintiff, the law of
limitation had undergone a change.
Under the Limitation Act of 1908, a suit
for possession based on title was
governed by Article 142, where a
plaintiff holding title, in order to succeed,
had to show his possession within 12
years of suit. It was in the context of the
aforesaid provisions of the old Limitation
Act, that in the earlier appeal, the High
Court had remanded the matter to the
Lower Appellate Court to record a
finding whether the plaintiff was in
possession within 12 years of suit. It
appears that by time the appeal came up
for decision before the Lower Appellate
Court, the Limitation Act of 1963 had
replaced the old Act, where Articles 64
and 65 took place of Article 120 of the
old Act. Under the Limitation Act, 1963,
there was no requirement for a person
holding title to succeed in his suit for
possession to show that on the date of
suit, within a particular period of time, he
had been in possession. The position of
law regarding the applicability of the
Limitation Act of 1963 to an action
commenced under the old Limitation Act
was that the new Act applied generally,
and not the Act of 1908, where the suit
was
taken
in
appeal
etc.
after
commencement of the Act of 1963. The
only exception was Section 30 of 1963
Act, which provided that in the event a
shorter period of limitation under the new
Act was prescribed, the provisions of the
Act of 1908 would continue to govern
the suit. The suit here did not fall under
Section 30 (supra), and, therefore, the
provisions of Section 142 would not
apply. The order of remand, as already
indicated, required the Lower Appellate
Court to decide the question about
possession going by the provisions of
Article 142 of the old Act. The Lower
Appellate Court decided the appeal, after
remand, on 26.06.1964. On 12.12.1968,
their Lordships of the Supreme Court
rendered decision in Nair Service
Society Ltd. vs. K. C. Alexander and
others, AIR 1968 SC 1165 holding that
the provisions of Articles 64 and 65 are
merely declaratory and not remedial. The
legislative declaration was designed to
cure the defect in the old Act, that
required a title holder to prove his
possession as well, within 12 years of his
suit to recover possession. The effect of
the decision of the Supreme Court was
that the law would always be deemed to
have been that the holder of title who
successfully established it, would no
longer be required in a surviving action,
at whatever stage of proceedings, to
further prove his possession within 12
years of suit. Under the changed law, it
was for the defendant to prove, if he had
to succeed in his defence, to show that he
had been in adverse possession for the
prescribed period.