1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. First Appeal No.1205 of 2008 [Dr. [Sau.] Sheetal R. Nalat Vs. V.A. Sathe] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. C.A. Joshi, Adv., for the appellant. ----- CORAM : A.H. JOSHI, J. DATE : 24th October,2008. 1. Heard. 2. The appellant herein is challenging the Judgment and Decree dismissing the suit for specific performance and restricting the decree to refund of consideration of Rs.3,38,000-00 with interest only. 3. Appellant's first grievance is about:- [a] refusal of specific performance; and [b] refusal to decree a sum of Rs. 2,87,000/- which was, according to plaintiff, given by the plaintiff to the son of the defendant. 2 4. On perusal of Judgment, it is seen that after discussing the evidence, the Trial Court has rendered the appreciation of evidence and conclusions in paragraph 39 of the Judgment. 5. The Judgment being in vernacular, the observations contained in para 39 are analysed and are given below:- [a] According to plaintiff, consideration, which was paid in various installments, totals to Rs.8,24,000-00 which is in excess of agreed consideration and hence Plaintiff's version and evidence is unreliable. [b] Defendant's son, to whom the amount is allegedly paid, is not arrayed as a defendant, circumstances in which the amount was paid to him, and the fact of payment are not found proved. [c] The Agreement of Sale is not proved to be an Agreement of Sale at all. [d] Plaintiff's witnesses are tutored witnesses. [e] Plaintiff has proved payment of Rs. 3,38,000-00 to the defendant. 6. In the background of aforesaid findings, the Trial Court found that it was a fit case to decree refund of consideration along 3 with interest at the rate of six per cent per annum, however, the plaintiff has failed to make out a case for granting a decree of specific performance. 7. This being a First Appeal, and would be considered on fact and law both. 8. The question arises as to whether the finding as to proof of facts rendered in paragraph 39, summary whereof is quoted in foregoing para no.5, is capable of a challenge, or is actually challenged. If it is so capable of a challenge and is so challenged, it will have to be seen from the grounds raised. 9. The grounds raised in the Appeal Memo raise a dispute as to appreciation of evidence, saying that the finding that plaintiff had failed to prove that payment made to son of the defendant was under authority. It is not shown that this finding is vitiated due to being perverse, or rendered on erroneous appreciation of evidence. Such error has to be shown in the grounds with reference to error in considering particular evidence or part thereof. 10. Bare ground that the evidence is not properly, correctly or legally appreciated is a ground worth name sake and is no ground in spirit. Such ground is without objectivity and does not provide and serve to be a periscope 4 much less a microscope. 11. Such vague grounds leave/drag the Court in the field of speculation. 12. It is seen that the aspect that plaintiff's witnesses are not trustworthy is a conclusion reached by the Trial Court. It is so reached after watching the demeanour of witnesses and quality of evidence as watched and recorded by Trial Court. This fact of untrustworthiness is a conclusion on facts which is always final at the stage of Trial Court and incapable of being assailed, except when it is shown that the judgment is a product of the findings which are vitiated on account of being perverse or otherwise illegal, unconscionable, or some such settled reasons which permit the First Appellate Court to set aside finding of facts and to substitute those. 13. The grounds do not spell out any specific ground as to why the exercise of discretionary power of the Trial Court under Section 21 of the Specific Relief Act refusing to grant a decree for specific performance is erroneous. 14. Right of appeal does pre-suppose a possibility of error at the hands of Trial Court, or authority, and makes a statutory forum available, but it is not a jurisdiction as far 5 as Appellate Forum is concerned, to be available just for the sake of asking. 15. Similar to the philosophy of need of judgment being reasoned is that it provides to litigants, lawyers and all concerned an exhibition of foundation of reasons, and reasons leading to the judgment, the grounds raised in Appeal Memo serve the purpose of a pathological report of the errors or pathos basing the judgment which, if not corrected, would amount to do injustice to a party who was wronged. 16. Reply spelt out grounds do afford to the respondent reasonable and fair opportunity against exercise of appellate jurisdiction, and tend to comply with the principles of natural justice and provide a foundation to the adjudicator/appellate court to decide upon the grievance. An appeal, which does not spell out and set out exact grievance and ground, is like a scream and moaning by a deaf and dumb. Improperly drafted grounds do defeat very purpose of need of a written form of appeal memo as against historic appeal by an oral petition or appeal by raise of hand on a short ground. 17. This discussion is not aimed to fault a lawyer in discharging his duty to litigant and to the Court. The situation of improper grounds is an unavoidable product of a grood judgment and total lack of grounds of challenge. 6 Case at hand is of this type where no grounds of challenge are seen and shown. 18. In the aforesaid background, admission of appeal would not serve any cause of justice, except a casual solace that the appeal has been admitted. When no grounds worth prima facie strength of there being arguable points are raised or even seen, the admission of appeal is an exercise in futility with open eyes to which the Appellate Court need not fall prey and be a party. 19. In aforesaid premises, the appeal is seen to be devoid of merit, and is dismissed at the stage of admission-hearing under Rule 11 of Order 41 of Civil Procedure Code. Judge |Hedau| 7 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Civil Application No.7110 of 2008 IN First Appeal No.1269 of 2008 [The State of Maharashtra & ors. Vs. A.K. Mehatare & ors.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. A.D. Sonak, AGP for appellants. Mr. S.P. Kshirsagar, Adv., for Respondent Nos. 1 to 5 [absent]. ----- 8 CORAM : A.H. JOSHI, J. DATE : 24th October,2008. 1. Heard. 2. Notice. 3. Impugned Award is stayed on the condition that the entire amount is deposited before the Reference Court within ten weeks from today. 4. When deposited, the Reference Court shall invest the amount in a fixed deposit in any Nationalized Bank on year to year basis, which shall be renewed from time to time unless there are orders to the contrary and until further orders. Judge |Hedau|