LAWS(CAL)-2004-2-98

BHASKAR CHANDRA JANA Vs. BARENDRA NATH BERA

Decided On February 19, 2004
Bhaskar Chandra Jana Appellant
V/S
Barendra Nath Bera Respondents

JUDGEMENT

(1.) . - This appeal arises out of concurrent findings of fact as to whether the concerned document is an agreement for sale or a loan agreement. Had there been no evidence on that score, the question should have been gone into by this Court in view of Sec. 20(2) of the Specific Relief Act. But since such point was specifically dealt with by the Court of first instance as well as by the first Appellate Court, and particularly, when the same is arising out of discretion of the Court to adjudge or evaluate such point, it would not be appropriate to go into such aspect of the matter in the second appellate stage.

(2.) The learned Counsel appearing in support of the appellant cited three judgments on this count before this Court being AIR 2001 Supreme Court 2783: 2001(4) Indian Civil Cases (S.C.) 105 (A.C. Arulappan Vs. Smt. Ahalya Naik), AIR 2002 Kerala 308 (K. Bhaskaran Nair Vs. Habeeb Mohammed and others), 2004(1) CHN 243 (Bijoy Kumar Chatterjee Vs. Minor Pradip Kumar Dutta & Ors. to establish the case that Court would be very much careful in respect of consideration of undue hardship. It is inequitable to grant specific relief in such circumstances. However, much emphasis was given in respect of the Kerala High Court judgment reported in AIR 2002 Kerala 308 (supra) by saying that when original document was handed over at the time of execution of agreement for sale, such agreement for sale is to be construed as loan agreement. But it appears from such judgment that the inference is based on the factual matrix of that case :

(3.) It is to be remembered that whenever a Court sits in first appeal or in the Supreme Court arising out of such first appeal, the question of going into the facts and law are easier to look. There are some restrictions in respect of the Second Appellate Court. Had there been no evidence, the Second Appellate Court would have been perfectly justified in interfering with the same, be it reversal, concurrence or affirmance decree or order connected therein. But this is not the fact here. Although no issue was raised as regards the hardship, but the Court of first instance extensively considered the issue, where from under the defendant who preferred the appeal, has failed to achieve the goal. If at this belated stage when the Second Appeal is pending from 1980 till 2004 in this Court, any indulgence is shown that will also be cause hardship to one of the parties. The first Appellate Court again considered extensively before coming to conclusion and held affirmatively on such fact even formulating the point. Therefore, it is very difficult for the Second Appellate Court to disbelieve the factual ascertainment by both the Courts and ignore the discretion on the basis of such judgments, which particularly, based on the investigations of facts. My answer is "no".