Bawa and Ranny Vs. Delhi Sainik Co-operative House Building Society Ltd. - Court Judgment

Excerpt:
civil procedure code 1908 - section 115--revision petition--trial court dismissed suits filed by plaintiff.; there was no contract between the parties appointing plaintiff as agent, plaintiff not entitled to commission of 2% of purchase price--however, suit decreed in favor of plaintiff--appealed against--appeal allowed and suit dismissed--revision filed against--respondent pleaded rest judicata--disagreed with the plea--scope of revision discussed. held, plaintiff failed to prove having rendered any services to the respondent. findings of lower court neither illegal nor based on the mis reading--no applicability of section 70 of the contract act--no infirmity in the impugned judgment--dismissed. - - c for other reasons as well. , [1950]1scr754 endorsed the view taken in mt. (13) the finding of the learned appellate court, rejecting the claim for commission under section 70 of the contract act on the ground that the plaintiff had failed to prove that he had rendered any service to the defendant/respondent in the matter of sales of land was assailed by mr, sawhney as being perverse and based on misreading of evidence. dw 5/3) clearly raises a presumption that services were not intended to be rendered by the plaintiff gratuitously. if the high court is satisfied on the three matters, it has no power to interfere merely because it differs, howsoever strongly, from the conclusion of the lower court on question of fact or law. letter (public witness 3/5), dated 10 october 1964, by the respondent society to the vendors, informing the latter about the up government according permission for the deal and asking them to remain present at the specified time and place for execution and registration of sale deeds, with copy endorsed to p. the documents and circumstances above mentioned, relied upon by learned counsel for the plaintiff have been sufficiently dealt with and discarded by the learned appellate court in paragraphs 17 to 20 of its judgment as being of no significance and considering the whole evidence adduced, the totality of circumstances, it held that the plaintiff had failed to prove that it had rendered any services to the respondent society to prove its entitlement for claim for commission. since the petitioner has failed in the revision petitions, the amounts put in fixed deposit in terms of the said order have to be paid to the respondent for which it may move the trial court for appropriate orders.d.k. jain, j. (1) these are three, revision petitions under section 115 of the code of civil procedure against the order of the lower appellate court dated 31 august 1979, dismissing the three suits filed by the plaintiff(petitioner herein). (2) since all the three petitions involve common questions for determination, these can conveniently be disposed of by a common judgment. (3) the plaintiff, a partnership firm, brought four suits against the respondent ( a cooperative house building society) for recovery of commission at 2% on the purchase price of the land which the respondent society had purchased separately from four different vendors. according to the plaintiff the respondent society had appointed it as its commission agent for the purchase of land at dehra dun and the plaintiff after strenuous efforts and labour got the sale deeds of lands in question registered in their favour. the plaintiff claimed that according to the trade and market usage the respondent was bound to pay commission at 2% of the purchase price. the four suits were registered as suit nos. 91, 92, 93/73 and 106/73. the suits were resisted by the respondent society denying the claim to commission in each case, primarily on the plea that there was no contract between the plaintiff and the respondent society appointing the plaintiff as its agent for purchase of land. all the four suits were tried together and common evidence was recorded in suit no.106/73. the trial court held that there was no contract of agency between the parties and further there was no evidence regarding usage and, thereforee, the plaintiff was not entitled to any commission on the ground of a contract and usage. however, acting under section 70 of the contract act, though there was no plea for it, the trial court granted decree in favor of the plaintiff in all the four suits as claimed. (4) aggrieved by the judgment and decrees granted by the trial court, the defendant/respondent came up in appeal against the decrees granted in suit nos. 91/73, 93/73 and 106/73. no appeal, however, was filed against the decree passed in suit no.92/73. the plaintiff did not assail the finding of the trial court that it was not entitled to any commission on the ground of a contract or usage. (5) before the lower appellate court the bar of rest judicata was set up against the maintainability of the appeals filed on the plea that no appeal having been preferred by the respondent against the decree granted in suit no.92/73, the judgment and decree passed in that case having become final, it operated as rest judicata in respect of the other three appeals preferred. the lower appellate court held that although suit no.92/73 could be said to be a former suit because decision in that suit had become final on account of non-filing of appeal but the transactions in the four suits being different and independent, the controversy in all the cases could not be the same though the pleas were similar and as such the matter in issue in all the four suits could not be said to be the same, the principle of rest judiciala was not attracted and the appeals were not barred. as regards the claim for commission set up under section 70 of the contract act, after analysing the documentary and oral evidence adduced by both the parties it came to the conclusion that the plaintiff did not render any service to the respondent society regarding the transaction in question and thus allowing the three appeals, dismissed the said suits. hence the present revision petitions by the plaintiff. (6) despite service the respondent remains un- represented. i have heard mr. b.b.sawhney, advocate for the plaintiff/petitioner at some length and have perused the trial court's record. the findings of the appellate court arc assailed both on the plea of rest judicata and the applicability of section 70 of the contract act. however, i find no ground to interfere. there is no illegality or material irregularity in the impugned judgment. (7) the first contention put forth by mr. sawhney on behalf of the plaintiff was that the lower appellate court had gone wrong in holding that the matter which was in issue in the previous suit no.92/73 was not in issue in the present suits and, thereforee, the principle of rest judicata was not applicable. he submits that although the transactions were four but the contract between the plaintiff and the respondent in respect of the entire land purchased by the respondent was one and that is why all the four suits were tried together and decided on the common evidence and the respondent having accepted the decree in suit no.92/73, it operated as rest judicata in so far as the other three suits were concerned. (8) i do not agree. the claim for commission in the four suits was based, per pleadings, on the alleged 'contract' or 'usage' which pleas as basis of suits were rejected by the trial court and were not challenged in appellate court. (9) to constitute rest judicata one of the conditions which must exist is that 'the matter directly and substantially in issue' in a suit or proceeding was directly and substantially in issue in the previous suit between the same parties and had been heard and finally decided by a competent court. as noticed by the learned lower appellate court, the four suits, though based on similar pleas, related to sale to the society, each for different specific piece of land and the vendor in each case was different. merely because all the sale deeds were executed in favor of the respondent on the same day, it cannot be said that the transactions in all the four sales were the same. i do not feel persuaded to agree with the contention of the learned counsel to hold that the three appeals were barred by rest judiciala. (10) that apart, i am of the view that the matter is not covered by section 11, c.p.c for other reasons as well. (11) one of the other conditions vital to the applicability of section 11 is that the decision to operate as rest judicata must be in a 'former suit', which expression is defined in explanationn 1 to section 11, civil procedure code ., thus: 'explanation1: the expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto'.(12) section 11, civil procedure code presupposes that the issue has been finally tried and decided in a former litigation, which was independent of the proceedings in which the same matter is again in dispute. in mt. lachhmi v. mt. bhulli, air 1927 lahore 289 tek chand, j., speaking for the majority, held that where two suits are tried together and disposed of by a single judgment but two decrees arc prepared and an appeal is preferred against one decree, only. the un-appealed decree does not create an estoppel against the hearing of the other appeal. the supreme court, in narhari & ors. v. shankar & ors., : [1950]1scr754 endorsed the view taken in mt. lachhmi's case that a decision given simultaneously cannot be a decision in the 'former suit'. in the present case, all the four suits were simultaneously disposed of by a common judgment. the judgment in suit no.92/73, thereforee, cannot be said to be a judgment in a 'former suit' within the meaning, of explanationn 1. observation of the learned appellate court holding it as a 'former suit' is not correct. i am of the firm view that non filing of appeal in suit no.92/73 would not operate as rest judicata against three appeals filed. (13) the finding of the learned appellate court, rejecting the claim for commission under section 70 of the contract act on the ground that the plaintiff had failed to prove that he had rendered any service to the defendant/respondent in the matter of sales of land was assailed by mr, sawhney as being perverse and based on misreading of evidence. in this behalf he referred to the following factors: (i) all the four agreements for sale and the sale deeds were signed by shri durga dass, one of the partners of the plaintiff firm as a witness; (ii) endorsement, of a copy of letter dated 10 october 1964 (ex. public witness 3/5), addressed by the respondent society to the vendors, to p.n.singh, c/o the plaintiff firm, informing that permission of the u. p. government to purchase the land had been received; ; (iii) deposition of pw1 - lt. col. prabhu singh, manager of the respondent society to the effect that the land in question was purchased through the plaintiff firm and 2% commission was payable to them; (iv) none of the respondent's witnesses, examined to prove that there was no contract or resolution by the society to pay any commission to the plaintiff and, thereforee, commission was not payable, had stated that no service had in fact been rendered by the plaintiff and (v) letter dated 20 august 1963 (ex. dw 5/3) clearly raises a presumption that services were not intended to be rendered by the plaintiff gratuitously. it was stressed that the lower appellate court had ignored these material pieces of evidence which support the case of the plaintiff that the plaintiff did render services for finalisation of sale transactions in favor of the respondent making section 70 of the contract act applicable and the finding of the lower appellate court to the contrary, being perverse, is liable to be set aside. (14) in contra-distinction to appellate jurisdiction, which is re-hearing of the mailer, the whole matter is at large before it, and the court is competent to re-appraise the evidence, the scope of revisional jurisdiction under section 115, civil procedure code is very limited. the section empowers the high court to satisfy itself on three matters that: (i) the order of the subordinate court is within its jurisdiction, (ii) the case is one in which the court ought to exercise jurisdiction and (iii) in exercising jurisdiction the court has not actc.d illegally, that is in breach of some provision of law, or with material irregularity, that is some error of procedure in the course of trial which is material in that it may have affected the ultimate decision. if the high court is satisfied on the three matters, it has no power to interfere merely because it differs, howsoever strongly, from the conclusion of the lower court on question of fact or law. (15) had the aforementioned facts and circumstances, relied upon by learned counsel for the plaintiff, been ignored by the lower appellate court and these individually or collectively were of conclusive nature, the revisional court would be competent to accept the contention. however, a perusal of the record shows that the learned appellate court had not only noticed the five points now raised before me, but dealt with and commented on them adequately and rejected them. dealing with them serialtim: (i) nothing turns on the circumstance of durga dass attesting the agreement of sale and the four sale deeds as a witness. he admittedly was engaged by the vendors in each case and had been paid commission by them for the deals. letter (public witness 3/5), dated 10 october 1964, by the respondent society to the vendors, informing the latter about the up government according permission for the deal and asking them to remain present at the specified time and place for execution and registration of sale deeds, with copy endorsed to p.n. singh, c/o the plaintiff firm, does not necessarily show the alleged nexus of relationship between the plaintiff and the respondent. similarly deposition of col. prabhu singh in the light of comments of the lower appellate court carries little conviction. it is true that none of the witnesses of the respondent had stated about the plaintiff not rendering any services to the respondent. indeed the respondent had not to prove the negative. no question by way of suggestion in the cross-examination was put by the plaintiff to elicit information on it, in the absence whereof the plaintiff cannot be heard to draw any adverse inference. lastly no presumption about the alleged rendering of services by the plaintiff to the respondent can be drawn from the letter (dw 5/3), dated 20 august 1963, confirming the engagement of the plaintiff as the respondent society's agent for purchasing land in delhi as it does not relate to land in question purchased at dehra dun. the documents and circumstances above mentioned, relied upon by learned counsel for the plaintiff have been sufficiently dealt with and discarded by the learned appellate court in paragraphs 17 to 20 of its judgment as being of no significance and considering the whole evidence adduced, the totality of circumstances, it held that the plaintiff had failed to prove that it had rendered any services to the respondent society to prove its entitlement for claim for commission. in my view the findings of the lower appellate court arc neither illegal nor based on misreading to evidence, as alleged. (16) the very basis of claim under section 70, contract act being rendering of service by one to another, accepted by the latter, which services are not rendered gratuitously, in view of the finding to the contrary, as above, the question of applicability of the said section does not arise. i find no infirmity in the impugned judgment. the revision petitions are misconceived and arc accordingly dismissed. interim order made on 16 july 1981 stands vacated. on 16 july 1981, while slaying restitution of the amounts, this court directed deposit of the amounts, paid by the respondent and withdrawn by the petitioner, in fixed deposit with the state bank of india, tis hazari branch, delhi. it was further ordered that the party which will succeed finally in the revision petition would be entitled to the said amounts and the interest accrued thereon. since the petitioner has failed in the revision petitions, the amounts put in fixed deposit in terms of the said order have to be paid to the respondent for which it may move the trial court for appropriate orders. the trial court's record be sent back forthwith. (17) since no one has appeared on behalf of the respondent there will be no order as to costs.