Specific performance and possession under a disputed sale agreement were upheld. The court dismissed the appeal, rejected evidence inconsistent with the pleaded defence, and found no ground to interfere with the exercise of discretion. It also dismissed the application to receive belated additional evidence.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
A.S.M.P. No.3159 OF 2013
IN/AND
APPEAL SUIT No.904 OF 1994
COMMON JUDGMENT:
The defendant in Original Suit No.133 of 1988 on the file of Subordinate Judge (Now, Senior Civil Judge), Tadepalligudem, West Godavari District, preferred this appeal, against the impugned decree and judgment dated 23.04.1993, wherein the Suit filed for the relief of specific performance of the contract in terms of agreement of sale, dated 11.02.1986, and for possession of schedule property was decreed.
2. The appellant herein was the defendant and the respondent herein was the plaintiff and they will hereinafter be referred as arrayed before the trial Court, for the sake of convenience and to avoid confusion.
3. The plaintiff filed the Suit, against the defendant, for specific performance of agreement of sale dated 11.02.1986 and for recovery of possession of the plaint schedule property or in the alternative for refund of Rs.44,625/- together with subsequent interest alleging that the defendant is owner of plaint schedule property and while she was in need of money for her family benefit, and for discharging her family debts, she offered the plaint schedule property for sale and after bargain by the plaintiff, the same was settled for Rs.65,000/- and the plaintiff paid Rs.30,000/- towards advance of sale consideration, in installments, prior to execution of Ex.A-1 itself, and obtained agreement of sale dated 11.02.1986.
4. As per the terms of agreement of sale, the plaintiff has to pay balance of sale consideration on or before 10.02.1989, and on receipt
of the same, the defendant have to execute the registered sale deed in favour of the plaintiff or his nominee at his expenses and shall also deliver possession of the schedule property. The plaintiff - respondent is always ready and willing to perform his part of obligation under the agreement of sale and requested the defendant to receive balance of sale consideration and execute registered sale deed and deliver possession of the schedule property, but the defendant did not execute the registered sale deed by receiving balance of sale consideration. In the meanwhile, Kollepara Kasulamma filed a Suit against the defendant for recovery of money due to her, on the foot of promissory note, got attached the schedule property; thereupon, the plaintiff requested the defendant to clear the debt and requested to execute registered sale deed free from encumbrances, but the defendant did not discharge the debt due to Kollepara Kasulamma and execute registered sale deed in terms of the agreement of sale, dated 11.02.1986. Thereupon, the plaintiff got issued a legal notice dated 10.09.1987, demanding the defendant to perform her part of obligation i.e., to receive balance of sale consideration and execute registered sale deed, at his expenses, but a reply was got issued with false allegations. Thus, the defendant failed to perform her part of obligation under the agreement of sale and execute registered sale deed by receiving balance of sale consideration despite legal notice. Hence, the suit.
5. The defendant filed written statement raising the following specific pleas : She never executed any agreement of sale agreeing to sell the property for Rs.65,000/- and received Rs.30,000/- as advance, in installments, much less on 11.02.1986 from the plaintiff. The plaintiff never demanded orally, either to receive balance of sale consideration or to execute registered sale deed. One Kadiyala Rama Rao of Tadepalligudem has been running tender (money lending) business and chit business. The defendant and her husband approached
Kadiyala Rama Rao in February, 1986, and her husband requested Kadiyala Rama Rao for tender loan (advancing amount) of Rs.2,000/and Kadiyala Rama Rao agreed for the same, but demanded husband of the defendant to place the original title deeds and tax receipts pertaining to plaint schedule house as security for the said loan and also get the signatures of the defendants on blank Rs.5/- stamp papers and on blank promissory note forms affixing revenue stamps. As her husband is in need of money, both of them complied the demand handed over the blank signed stamp papers worth Rs.5/-. Thereupon, the said Kadiyala Rama Rao paid Rs.1,800/- after deduction of Rs.200/- towards interest. Taking advantage of the blank signed stamp papers with Kadiyala Rama Rao, he fabricated agreement of sale and got filed the present suit. The said Kadiyala Rama Rao also got filed the suit, through Kollepara Kasulamma, taking advantage of the blank signed promissory note, got attached the property. The agreement of sale is a fabricated document and the defendant never intended to execute the agreement of sale agreeing to sell the property, thereby it is not enforceable under law, and prayed to dismiss the Suit with costs.
6. Basing on the above pleadings, the trial Court framed the following issues:
2. Whether the suit sale agreement has been brought into existence may be as is stated by the defendant in his written statement?
3. Whether the plaintiff is entitled to the specific performance of the suit sale agreement?
4. To what relief?
7. During course of trial, on behalf of plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 to A-3 were marked; on behalf of defendant, D.Ws.1 and 2 were examined and got marked Ex.B-1. In the evidence
of P.W.2, Exs.X-1 and X-2 were marked.
8. Upon hearing argument of both the counsel, considering oral and documentary evidence available on record, the trial Court passed the impugned decree disbelieving the pleas or defence set up by the defendant, directed her to execute registered sale deed in respect of the plaint schedule property, in favour of the plaintiff after deposit of balance of sale consideration within 30 days.
9. Aggrieved by the impugned decree and judgment, the present Appeal is preferred by the defendant – appellant raising the following contentions :
a) Ex.A-1 was brought into existence by P.W.2, Kadiyala Rama Rao, in the name of plaintiff, who is no other than his brother-in-law, fraudulently taking advantage of the blank signed papers by the defendant and her husband ; b) Payment of consideration on specific dates in three installments was not brought on record either by oral evidence or by producing documents, but the trial Court believed payment of advance of Rs.30,000/- in three installments, prior to execution of agreement of sale, dated 11.02.1986, though no specific evidence was brought on record ;
c) The evidence of P.Ws.1 and 2 is contradictory regarding passing of consideration under Ex.A-1 and lending amount of Rs.10,000/- by Bonda Suryachandra Rao etc., Thus, the advance payment is false on the face of record, but the trial court did not consider the specific plea of the defendant ;
d) The evidence of P.Ws.1 and 2 discloses that the plaintiff is working as private electrician and having no capacity to purchase the property worth Rs.65,000/- as
on the date of execution of agreement of sale Ex.A-1. This fact was also not considered by the trial Court ; e) The evidence of P.W.3 with regard to passing of consideration in his presence is fatal to the present case. He admitted that no amount was paid as advance sale consideration, but this was not considered by the trial Court properly.
f) Finally, it is contended that Ex.A-1 is created only to grab the property, taking advantage of the signatures of the defendant on blank stamp papers and hence prayed to allow the Appeal setting aside the impugned decree and judgment of the trial court.
10. During course of argument, learned counsel for the defendant - appellant raised several contentions with reference to the probabilities of case, while reiterating the grounds urged in the grounds of appeal. The following are the alleged improbable circumstances brought to the notice of this Court :
1) The plaintiff is only a private electrician. He has no capacity to purchase the property, thereby the purchase of the property worth Rs.65,000/- as on that date is improbable to the natural circumstances. 2) The defendant own and possessed only one house and in normal course, they will not sell the house, even if they are indebted to others, therefore, sale of the plaint schedule property is improbable to the natural circumstances.
3) The purpose of sale of property by the defendant, as mentioned in Ex.A-1 to discharge her family necessities, in such case, fixing of three years time, for payment of balance of sale consideration i.e., 10.02.1989, is totally improbable to the natural circumstances.
4) The schedule property is situated at Tadepalligudem, whereas the plaintiff is native of a different place by the date of execution of Ex.A-1, in such case, purchase of property while staying at different place is an improbable circumstance to disbelieve the case of plaintiff.
And finally it is contended that there are changed circumstances like hike in the price of movable property, which is an unfair advantage to the plaintiff, in such case, the Court cannot exercise its discretion under Section 20 of Specific Relief Act, 1963 (For short, ‘the Act of 1963’) merely because it is lawful to do so, but the trial Court did not exercise its discretion conferred under Section 20 of Specific Relief Act on proper appreciation of facts and law, and committed an error and prayed to allow the Appeal setting-aside the impugned decree and judgment.
11. Per contra, learned counsel for the plaintiff - respondent contended that the plea raised in the written statement is not supported by any evidence and whatever evidence adduced during trial by the defendant - appellant is without any foundation in the pleadings, thereby the evidence adduced during trial, is contrary to the pleadings, cannot be looked into and placed reliance on several judgments, in support of his contention and prayed to dismiss the Appeal by confirming the impugned decree and judgment passed by the trial court.
12. Considering rival contentions and perusing oral and documentary evidence available on record, the points that arise for consideration in this Appeal are as follows:
1. Whether Ex.A-1, agreement of sale dated 11.02.1986, is valid, genuine, binding and enforceable under law?
2. Whether the trial court exercised its discretion, conferred under Section 20 of Specific Relief Act, in
accordance with law?
3. Whether the plaintiff - respondent is entitled to a decree for specific performance of agreement of sale and possession of the property?
13. POINT No.1: The suit is filed on the basis of agreement of sale, Ex.A-1, for specific performance that means to enforce the agreement alleging that the defendant offered to sell the property and the plaintiff readily agreed to purchase the property at Rs.65,000/-, both parties i.e., plaintiff and defendant treated the amount of Rs.30,000/- paid on three occasions, prior to execution of Ex.A-1, as advance sale consideration, while agreeing to pay balance sale consideration of Rs.35,000/- on or before 10.02.1989, the defendant offered to execute registered sale deed and deliver possession of the schedule property on the same day. However, the very execution of Ex.A-1 was denied, setting a plea that when the defendant’s husband approached Kadiyala Rama Rao, who is co-brother of plaintiff, for lending the amount, who is carrying money lending business, the said Kadiyala Rama Rao (P.W.2) insisted the defendant’s husband to handover title deeds of the schedule property and to get the signatures on blank stamp papers worth Rs.5/- and blank promissory note affixing revenue stamps, as security, for repayment of debt. In view of financial problems, the defendant’s husband and the defendant readily agreed to the conditions imposed by said Kadiyala Rama Rao, and as such the signatures of the defendant were obtained on blank stamp papers worth Rs.5/- and handed over to Kadiyala Rama Rao. Taking advantage of the signatures of the defendant on the blank stamp papers, Kadiyala Rama Rao fabricated the agreement of sale in the name of plaintiff. Therefore, the document under Ex.A-1 is not valid and not enforceable under law. When the suit is based on agreement of sale for specific performance and execution of the same is denied specifically by the defendant, the initial onus of proof is on the plaintiff
to establish that Ex.A-1 was validly executed and it is enforceable under law.
14. To substantiate the contentions of the plaintiff, he himself was examined as P.W.1, testified about execution of Ex.A-1, and advance payment of Rs.30,000/-, under three promissory notes, on three occasions, prior to execution of Ex.A-1. He also testified about his readiness and willingness to perform his part of obligation under agreement of sale. In the cross-examination of P.W.1, the Counsel for the defendant could elicit that the defendant is the native of Nidadavolu and for the last 15 years, he has been staying in Tanuku and about 5 years ago, he came over to Tadepalligudem for attending electrical work, on commission basis, and did not possess any landed property or house and also carrying on money lending business at Tanuku, for the last 15 years. Taking advantage of these admissions, it is contended by the counsel for the defendant - appellant that he purchased the property at Tadepalligudem, while he is staying at Tanuku and he is native of Nidadavolu is an improbable circumstance.
15. As seen from the evidence, the facts whatever elicited in the cross-examination of PW.1 dated 02.04.1991, are that the plaintiff was native of Nidadavolu and for the last 15 years he was living at Tanuku and about 5 yeas ago, prior to his examination before the trial Court, he shifted to Tadepalligudem for carrying on electrical work on commission basis besides money lending business at Tanuku. In fact, there is possibility to purchase the property at Tadepalligudem even while residing at Tanuku or at Nidadavolu, where he is carrying on electrical work on commission basis. Therefore, it is not an improbable circumstance. On the basis of improbability pointed out by the counsel for the defendant - appellant, the agreement of sale cannot be disbelieved.
16. The learned counsel for the defendant - appellant could elicit
that when the plaintiff was at the residence of Kadiyala Rama Rao, the defendant requested loan from Kadiyala Rama Rao, in turn Kadiyala Rama Rao came to his house in the month of January, 1986, accompanied by the plaintiff, in that connection, the latter developed acquaintance with the defendant and advanced Rs.10,000/- on one occasion and Rs.20,000/- on two other different occasions prior to Ex.A-1. Thus, he paid a total sum of Rs.30,000/- and obtained three promissory notes as evidence of lending the amount prior to purchase of property under Ex.A-1 and those promissory notes were returned at the time of writing Ex.A-1. These facts are noteworthy and sufficient to disbelieve the case of the defendant and the same would not come to the aid of defendant to disbelieve the agreement of sale.
17. The plaintiff also got examined Kadiyala Rama Rao and Patcha Venkata Subbarao, scribe, as P.Ws.2 and 3 respectively. They all in one voice testified about execution of Ex.A-1, but, P.W.3 categorically admitted that in his presence, no consideration was paid. Taking advantage of admission of P.W.3 regarding non passing of consideration, it is contended that the agreement, Ex.A-1 is devoid of consideration. In view of specific contention, I must necessarily look into the contents of Ex.A-1 with reference to the evidence of P.Ws.1 and 2. As seen from Ex.A-1, it is noticed that no consideration was paid on the date of its execution, but Rs.30,000/- was paid in three installments prior to execution of Ex.A-1, the same was adjusted towards advance of sale consideration. It is the further case of plaintiff that he paid Rs.30,000/- in cash under Ex.A-1. If really the plaintiff’s plea is that he paid Rs.30,000/- as advance on the date of execution of Ex.A-1, the evidence of P.W.3 destroyed the case of the plaintiff. But here, the amount was paid earlier in three installments, i.e., prior to execution of Ex.A-1 and the same was adjusted towards advance of sale consideration. Hence, it is not a ground to disbelieve the entire transaction and passing of consideration under Ex.A-1, towards
advance of sale consideration. Therefore, the admission of P.W.3 is not sufficient to hold that Ex.A-1 is not supported by consideration.
18. As per the provisions of Evidence Act, the document can be proved in different modes. In State (Delhi Administration) Vs. Pali Ra m[1] , the Apex Court laid down certain modes of proof of document and held as follows at Para 23 of the Judgment :
“23. Just as in English Law, the Indian Evidence Act recognises two direct methods of proving the handwriting of a person: (1) By an admission of the person who wrote it; and (2) By the evidence of some witness who saw it written.
These are the best methods of proof. These apart, there are three other modes of proof by opinion. They are: (i) By the evidence of a handwriting expert. (Section 45) (ii) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question. (Section 47); (iii) Opinion formed by the Court on comparison made by itself. (Section 73) All these three cognate modes of proof involve a process of comparison. In mode (i), the comparison is made by the expert of the disputed writing with the admitted or proved writing of the person who is said to have written the questioned document. In (ii), the comparison takes the form of a belief which the witness entertains upon comparing the writing in question, with an exemplar formed in his mind from some previous knowledge of repetitive observance of the handwriting of the person concerned. In the case of (iii), the comparison is made by the Court with the sample writing or exemplar obtained by it from the person concerned.”
19. In view of the principles laid down by the Apex Court in the decision cited supra, the burden is upon plaintiff - respondent to prove execution of Ex.A-1, agreement of sale, by the defendant - appellant in favour of the plaintiff - respondent. Here, the plaintiff himself was examined as P.W.1, who obtained Ex.A-1, besides examining Kadiyala Rama Rao, the attestor of Ex.A-1, as P.W.2, and scribe, Patcha Venkata Subba Rao, as P.W.3, who specifically testified about
execution of Ex.A-1 and the defendant - appellant admitted the signatures on Ex.A-1 are that of her. The specific admission in the evidence of D.W.1 is extracted hereunder, for better appreciation.
“I did not issue any register notice to P.W.2 for the return of those blank signed papers. The signature on Ex.A.1 is mine. I studied up to 5th class.”
20. Undisputedly, Ex.A-1, bears signature of defendant - appellant and execution of it is proved by examining P.Ws.1 to 3, including attestor and scribe of Ex.A-1. Therefore, the plaintiff proved execution of Ex.A-1 in accordance with the law laid down by the Apex Court in the decision referred supra.
21. However, improbabilities and facts elicited in the crossexamination of witnesses, examined on behalf of the plaintiff, will be referred at a later stage. Before going into details of the evidence on record, when the plaintiff is able to prove execution of Ex.A-1 by examining P.Ws.1 to 3, the onus of proof will automatically shifts to the defendant - appellant to prove signatures were obtained on the blank stamp papers worth Rs.5/- in the circumstances pleaded in the written statement. The specific plea in the written statement (Para 3) is as follows:
“One Kadiyala Rama Rao resident of Tadipalligudem, is carrying on money lending business and chit fund business. When the husband of the defendant/ appellant approached the said Kadiyala Rama Rao in the month of February, 1986 for lending Rs.2,000/-. The said Kadiyala Rama Rao insisted and imposed certain conditions for lending Rs.2,000/-, one of the condition is that the defendant’s husband has to obtain signature of the defendant on blank stamp papers worth Rs.5/- besides deposit of title deeds and tax receipts with him and also obtained the signatures on blank promissory notes. Due to financial problems, the defendant and her husband obliged for the conditions imposed by Kadiyala Rama Rao and complied all the conditions. Thereupon, he advanced Rs.1800/- after deducting Rs.200/- towards interest”.
22. From reading of the specific plea, it is clear that blank stamp papers were signed by the defendant – appellant and were handed over to Kadiyala Rama Rao by the defendant’s husband, for lending the amount. When the defendant and her husband were examined, as D.Ws.1 and 2, they gave totally a go bye to the actual plea raised in the written statement.
23. As per the recitals in the written statement, signed stamp papers were obtained in connection with loan transaction, but invented a different theory of handing over the blank signed stamp papers for payment of prize amount in chit fund business by Kadiyala Rama Rao and the specific evidence of D.W.1 itself is extracted hereunder for better appreciation :
“P.W.2 is running chit funds and we are the members of the Chit Fund. The P.W.2 who uses to collect the Chit Fund amount daily noted the payment in a note book and the books are with me. There were two bids in a moth, I auctioned the chit fund amount. P.W.2 informed that unless the property is given as security the auction amount will not be paid. P.W.2 obtained my signatures on blank pronote stamp papers and other papers. P.W.2 did not return the papers obtained from me even after the payment is made. Since my husband also informed me that auction the amount will not be paid by P.W.2 unless I inscribing signature on blank papers etc.,”
24. Further, in the cross examination on 12.11.1991, D.W.1 deposed as follows:
“P.W.2 is running chit fund business at Tadepalligudem since a very long time. About 10 years ago I joined as a subscriber in the chit fund run by P.W.2. Immediately after the closure of one chit I used to join as a member in the other chit and continued till some time. Whenever I became a successive bidder in the chit P.W.2 used to take signatures on blank promotes, stamp papers and white papers. Either myself or my husband never purchased any general stamps and delivered to P.W.2 and the stamp papers on which my signatures were obtained by P.W.2 were brought up by P.W.2 only. Even though I demanded P.W.2 for return of the signed
papers after the closure of the chit P.W.2 did not return the same. I did not issue any register notice to P.W.2 for the return of those blank signed papers. The signature on Ex.A.1 is mine. I studied up to 5th class.”
25. The facts elicited in the cross examination extracted above, at best, shows that D.W.1 was a member in the chit for the last 10 years. If that is the case, she might be a member in the chit in the year, 1981 and at the time of payment of chit amount, the said Kadiyala Rama Rao used to obtain signed stamp papers. Therefore, if the case set up by the defendant is true, the stamp papers might have been purchased in or about 1981 or 1982. But, Ex.A-1 consisting of three stamp papers worth Rs.2+2+1 purchased on 11.02.1986, on behalf of the defendant, by her husband, D.W.2 herein. If the specific evidence of D.W.1 is accepted, the signatures on Ex.A-1 are that of D.W.1 and Ex.A-1 is not the document created by P.W.2 taking advantage of the stamp papers handed over in the year 1981 – 82, since it was purchased by the husband of the defendant in the year, 1986 i.e., on the date of execution of Ex.A-1 itself. This piece of evidence is totally contrary to the pleading. At the same time, the evidence of D.W.1 and her husband is on the same lines and therefore, I need not reproduce the specific evidence of D.W.2, while appreciating the evidence on record. Thus, according to the defence in the written statement, the signatures on blank stamp papers were obtained by her husband for obtaining loan of Rs.2,000/- from Kadiayala Rama Rao, P.W.2, but whereas the evidence adduced by the defendant is totally inconsistent with the plea which shows that for payment of chit amount, Kadiyala Rama Rao insisted for handing over of blank signed stamp papers. Thus, the evidence adduced by defendant is totally contradictory to the plea raised in the written statement. In the absence of any plea in the written statement, whatever evidence adduced cannot be looked into as per settled law, even assuming that there is a specific plea denying the execution of Ex.A-1 explaining under what circumstances Ex.A-1
was brought into existence. Unless the said plea is proved by adducing evidence, mere plea in the written statement is not sufficient, since it is not a proof of fact. Therefore, whatever evidence adduced in support of the pleas raised in the written statement, cannot be accepted and thereby either of pleas raised in the written statement or evidence adduced in the course of examination before the Court, are not true. Therefore, the Court cannot look into the evidence adduced, contrary to the pleading, as such the trial court rightly rejected to look into the evidence of D.Ws.1 and 2 to disprove execution of Ex.A-1. The law is well settled on this aspect.
26. The learned counsel for the respondent - plaintiff drawn attention of this Court to several decisions. In Mrs. Om Prabha Jain, Appellant Vs. Abnash Chand and anothe r[2] , wherein, the Apex Court held as follows :
“…. The ordinary rule of law is that evidence is to be given only on a plea properly raised and not in contradiction of the plea. Here the pleas were made on two different occasions and contradicted each other. The evidence which was tendered contracted both the pleas. The source of the information was not attempted to be proved and the witnesses who were brought were found to be thoroughly unreliable. In these circumstances we do not propose to refer to the evidence in this judgment any more.”
27. In another judgment reported in Bhagat Singh and others Vs. Jaswant Singh[3] , the Apex Court held as follows:
“The case more to the point is the privy council case relied on by the Courts below, viz., AIR 1930 PC 57(1), where it was held that where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward.”
28. In another judgment reported in M/s. Trojan and Company Vs.
RM. N. N. Nagappa Chettia r[4] , the Apex Court held as follows:
“The decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint the Court held was not entitled to grant the relief not asked for.”
29. This Court also time and again reiterated the same principle and in Allam Gangadhara Rao Vs. Gollapalli Gangarao[5] , held as follows:
“It is trite to say that a party is expected and is bound to prove the case as alleged by him and as covered y the issues framed. This is in accordance with the main principle of practice that a party can only succeed according to what was alleged and proved secundum allegate et prrobata. He should not be allowed to succeed on a cause which he has failed to set up. He should not be permitted to change his case or set up a case which is inconsistent with what he had himself alleged in his pleading except by way of amendment of the plaint”
30. I n Malakayya and another Vs. Avati Buchamma[6] , the Division Bench of this Court held as follows:
“Whether neither the custom of Udiki was pleaded in the plaint nor any reference to the valid requisites and essential ceremonies of such a marriage was made in the plaint, the defendants could not be said to have known what case they had to meet and what evidence they had to lead to rebut the case of the plaintiff. In absence of a pleading no amount of evidence can be looked into.”
31. Thus, the consistent law laid down by the Apex Court and this Court is that in the absence of pleading, any evidence adduced before the trial court cannot be looked into. Similarly, whatever plea raised without any supporting evidence is not required to be considered by the Courts.
32. In the instant case, the story pleaded in the written statement is obtaining of blank signed stamp papers at the time of lending Rs.2,000/- by P.W.2, Kadiyala Rama Rao, but when it comes to the
evidence, the defendant invented a different theory of handing over of blank signed stamp papers at the time of receiving chit amount, at about 10 years prior to examination of D.W.1. These two are inconsistent to one another. If the principles laid down, in the decisions cited supra, are applied to the present facts of the case, neither the plea, which is not supported by any evidence, nor the evidence, which is not based on factual foundation laid in the pleadings can be looked into. Therefore, the evidence of D.Ws.1 and 2 requires no consideration at all by the Court, since it is without any factual foundation in the pleadings.
33. When the defendant - appellant set up a specific plea that her signatures were obtained on blank stamp papers at the time of lending Rs.2,000/-, to her husband, by Kadiyala Rama Rao, P.W.2, the burden heavily lies on the defendant - appellant to establish the fact, by producing cogent and satisfactory evidence.
34. In B. Jogi Reddy Vs. Baldev Singh (died) by LRs .[7] , the Division Bench of this Court held as follows in Para 7:
“In our view, it is settled provision of law that when once signatures are admitted the burden to establish that the document is a fabricated one is heavily on the defendants. The learned Single Judge, however, opined “the burden is on the plaintiff to show that it has been executed by the deceased, first defendant.” In our opinion, such a view is wrong. On the other hand, the Trial Court recorded a categorical finding that Ex.A.1 is a document recorded on stamp paper of the year 1986. Admittedly the money lending transaction was of the year, 1982. The theory of obtaining signatures on blank papers does not fit in, in view of the above- mentioned facts.”
35. In the facts of the above decision, when suit is filed for specific performance of agreement of sale, the defendant set up a similar plea, which the defendant - appellant raised in the present suit, but in such
case the burden is heavily on the defendant to establish signing or execution of documents on stamp papers, in the circumstances pleaded by them, but this Court disbelieved it as it is inconsistent with regard to facts pleaded and evidence adduced.
36. In the instant case on hand, the plea raised in the written statement in Para 3 was not proved by adducing any evidence. On the other hand, it is the consistent case of the defendant - appellant that D.W.2, husband of the defendant, never purchased any stamps and Kadiyala Rama Rao purchased stamps and obtained signatures of defendant - appellant through her husband, but as seen from Ex.A-1, stamps were purchased by husband of the defendant, on her behalf. This fact is also an additional link to disbelieve the evidence of D.Ws.1 and 2.
37. A similar situation came up for consideration before this Court in Veeramareddy Nagabhushana Rao Vs. Jyothula Venkateswara Rao[8] , wherein the Division Bench of this Court in Para 18 held as follows:
“The best person to speak about the circumstances under which defendant signed on blank papers and handed over them to the plaintiff was Lakshmi Tulasi, sister of the defendant. D.W.1 in his evidence stated that there are no disputes between him and his sister Lakshmi Tulasi, but she was not examined, who is a crucial witness as per the stand taken in the written statement and no other witness also examined by the defendant, inspite of the facts that the burden of proof is exclusively rests on him and thereby drawn an adverse inference.
38. Even according to the principle laid down in the decision cited supra, the burden is exclusively on the defendant - appellant, but the plea raised in the written statement is not substantiated by any evidence, however, substituted by a different plea without any factual foundation in the pleading. Therefore, no credence can be attached to the testimony of D.Ws.1 and 2 and thereby the defendant miserably
failed to establish the defence set up in the written statement.
39. Before filing the suit, a legal notice was issued by the plaintiff - respondent calling upon the defendant - appellant to receive balance of sale consideration and execute registered sale deed, which is marked as Ex.A-1 and a reply was got issued by the defendant – appellant, marked as Ex.A-3. In Para 4 of the reply, the defendant - appellant raised a specific contention what she pleaded in the written statement. So the earliest version of the defendant - appellant is totally consistent with the plea raised in Para 3 of the written statement, but this plea was not substantiated by any evidence. Hence, the trial Court disbelieved the plea set up by the defendant - appellant.
40. The defendant - appellant filed a petition in A.S.M.P. No.3159 of 2013 under Order 41 Rule 27 Read with Section 151 of C.P.C. to receive additional evidence and mark them as Exs.B-2 to B-5, on the ground that the instant documents were not available as on the date of disposal of the Suit by the trial Court. The documents 4 in number are only certified copy of decree and judgment dated 22.09.1995, passed in O.S. No.302 of 1988 by the Principal Munsif Magistrate, Tadepalligudem; Original legal notice dated 26.10.1987 issued by one Bonda Lakshmi; office copy of reply notice dated 06.01.1988 got issued on behalf of the petitioner - appellant and on behalf of her husband to one Bonda Lakshmi and original memo showing receipt of reply notice dated 06.01.1988 by learned counsel who issued notice dated 26.10.1987. The documents are required only to prove that the mother-in-law of the plaintiff in this suit also obtained similar decree for recovery of amount. In fact, those documents are not at all relevant for deciding the real controversy and have no direct bearing on the issue involved in this matter except to prove that mother-in-law of the plaintiff obtained a decree against the defendant – appellant, as the documents are not relevant for deciding the real controversy between the parties in suit for specific performance, I find that those documents
are not necessary.
41. Learned counsel for the plaintiff - respondent contended that when the documents are not necessary for deciding the real controversy, they cannot be received as additional evidence in Appeal and placed reliance on a decision of the apex Court in Smt. Pramod Kumari Bhatia
Vs. Om Prakash Bhatia and Others[9] , wherein the Apex Court held as follows at Para 8 :
“8. Before the High Court, Pramod Kumari filed an application for reception of additional evidence. The principal additional evidence sought to be adduced was an alleged letter said to have been written by late Pearey Lal Singh to the bank nominating Pramod Kumari as the person entitled to the amount in deposit with the Bank. The letter itself was not filed along with the application but a request was made to summon the letter from the Bank. The High Court rejected the application. The application to the High Court was made very many years after the suit had been filed, and also quite some years after the appeal had been filed before the High Court, and we do not think that we will be justified in interfering with the discretion exercised by the High Court in refusing to receive additional evidence at that stage. The appeal is therefore dismissed but in the circumstances with no order as to costs.”
42. When the documents were filed after many years from the date of filing the Suit, the Court cannot exercise its discretion to receive the documents. In the facts of the decision cited supra, an application to the High Court was made after long period from the date of filing the Appeal and the High Court refused to receive those documents at the stage of admission.
43. In the instant case on hand, the documents sought to be received are only certified copy of decree and judgment in O.S. No.302 of 1988, on the file of Principal Munsif Magistrate, Tadepalligudem, dated 22.09.1995, legal notice dated 26.10.1987, office copy of reply
notice dated 06.01.1988 and original memo. The legal notice is within the knowledge of the petitioner – appellant and nothing prevented the petitioner - appellant to obtain certified copy from the Court, during pendency of the Suit in O.S. No.302 of 1988, filed by mother-in-law of the plaintiff in this Suit, but obviously for different reasons they filed these documents after a lapse of more than 25 years. No doubt the 1st document was not available by the date of disposal of the present Suit in Appeal, but the certified copy of document was obtained on 10.11.1995 was not filed before this Court, though it is available with the petitioner – appellant, but filed nearly after 20 years. If the principle laid down by the Apex Court in Smt. Pramod Kumari Bhatia (9th supra) is applied to the present facts, discretion cannot be exercised to receive the documents as additional evidence as they were filed at a belated stage. Therefore, strictly adhering to the principles laid down by the Apex Court, I find no grounds to receive the documents set out in this Appeal at this stage.
44. The learned counsel for the respondent – plaintiff placed reliance on a decision of the Patna High Court in Jaikaran Singh Vs. Sita Ram Agarwalla and others[10] and Madras High Court in Doraiswami Vs. Rathnammal and others[11] . In Doraiswami (11th supra), the Madras High Court is of the view that when due diligence was not exercised before the trial Court, production of additional evidence could not be justifiably allowed in the Appeal, whereas the Patna High Court in Jaikaran Singh (10th supra) held that filing of documents at a later stage and the documents are not necessary for enabling the Court to pronounce judgment, the Court cannot admit such additional evidence in the Appeal. In the instant case on hand, the documents 2 to 4 though available with the petitioner – appellant were not filed before the trial Court and no specific reason was assigned for non filing of those documents. Even otherwise, the 1st
document was obtained in the year 1995 and it is lying in possession of the petitioner – appellant and she did not choose to file the same and apart from that, it is not relevant to decide the real controversy. Hence, by applying the principle laid down in the decisions cited supra, I find no ground to receive the documents set out in A.S.M.P. No.3159 of 2013 as additional evidence. Therefore, I decline to receive the documents as additional evidence and accordingly, the in A.S.M.P. No.3159 of 2013 is dismissed.
45. On over all consideration of entire evidence, I find lot of inconsistency between the plea raised in the written statement and evidence adduced. Therefore, any amount of evidence adduced contrary to the plea cannot be looked into, and whereas the specific plea raised in the written statement was not substantiated by any evidence. Consequently, the specific plea cannot be accepted in view of my foregoing discussion, relying on the decisions of various High Courts. Hence, the defendant - appellant miserably failed to establish her specific case, under what circumstances the documents were brought into existence. On the other hand, the plaintiff – respondent proved execution of Ex.A-1 as required under the Evidence Act, consequently the trial Court rightly granted decree in favour of the plaintiff – respondent and against the defendant – appellant and I find no error much less an error warranting interference of this Court either to set-aside or reverse the judgment of the trial Court. Though the learned counsel for the appellant – defendant argued the matter strenuously raising several contentions, but without any purpose, based on any factual foundation in the pleadings or the evidence in support of the plea whatever raised. In those circumstances, I have no other alternative except to concur with the finding of the trial Court. Accordingly, the finding of the trial Court is upheld, holding that the agreement of Ex.A-1 is not true, valid and binding and enforceable under law. Accordingly, the point is decided in favour of the plaintiff –
respondent and against the defendant – appellant.
46. POINT No.2: One of the contentions of the learned counsel for the plaintiff – respondent is that the relief of specific performance is purely discretionary under Section 20 of Specific Relief Act and the Court cannot grant a decree, merely because it is lawful to do so and such discretion can be exercised judiciously. When the person seeks equitable relief in a Court of law, it is for him to approach the Court with clean hands and do equity. When the plaintiff approached the Court with tainted hands with a false plea, he is certainly disentitled to claim the relief of specific performance in view of the principles laid down by t h e Apex Court in Lourdu Mari David and others Vs. Louis Chinnaya Arogiaswamy and others[12] , wherein it was held as follows:
“It is settled law that the parties who seeks to avail of the equitable jurisdiction of Court and specific performance being equitable relief, must come to the Court with clean hands. In other words, the parties who makes false allegations does not come with clean hands and is not entitled to the equitable relief………”
47. The same view is expressed by this Court in Puvvada Chiranjeeva Rao Vs. Busi Koteswara Rao[13] , wherein it was held as follows:
“By its very nature, an equitable relief requires the person claiming it to be fair, reasonable and trustworthy. A plaintiff would disentitle himself from claiming such relief, if he has flouted the terms of the very agreement, which he seeks to enforce, with impunity. A person cannot be permitted to reap the benefits of a transaction partly through his unilateral acts, and to approach a Court of law for the balance of it. A plaintiff in a suit of such nature must prove his bona fide, before he seeks the assistance of the Court to compel the other person to perform his part of the obligation. It is not without reason that relief of specific performance is treated as equitable. In the ordinary course of things, if a party to a contract commits
breach of terms thereof, the aggrieved party can certainly institute proceedings for damages. Further, the concerned party may choose to pay damages than to abide by the terms of the contract, may be for variety of reasons. Grant of relief of specific performance would curtail the freedom of a party to the agreement to rescind from it. Such a course can be adopted only when the persons who seek the relief convince the Court about their bona fides and prove that the entire blame for not taking the contract to its logical end, is with the other party.”
48. In the instant case on hand, no such plea as laid down under Section 20 (a) and (b) of Specific Relief Act was raised and no issue was framed before the trial Court but, for the first time, it is contended that the property is worth lakhs of rupees and in case, discretion is exercised in favour of the plaintiff - respondent to grant specific performance, it would be disadvantageous to the defendant - appellant, but no such plea was raised, in the absence of any plea and issue, at this stage this Court cannot decline to grant the relief.
49. The general principle is that when the trial Court exercised its discretion to grant specific performance, under Section 20 of Specific Relief Act, unless it is perverse and contrary to law, the appellate Court cannot interfere in such exercise of discretionary power by the trial Court. Here, I find no illegality or irregularity in the finding of the trial Court, more particularly, in exercise of discretion in favour of the plaintiff - respondent to grant relief of specific performance. Hence, I am of the considered view that the trial Court exercised its discretion judiciously and granted the relief of specific performance. Accordingly, the point is held in favour of the plaintiff – respondent and against the defendant – appellant.
50. POINT No.3: The relief of recovery of possession was also claimed by the plaintiff in this Suit, since the property was not delivered in pursuance of the agreement. According to Section 22 of Specific Relief Act, the Court may grant delivery of possession, refund of
earnest money etc., As per my findings on point Nos.1 and 2, agreement of sale under Ex.A-1 is enforceable under law and the trial Court exercised its discretion judiciously. Thereby, the plaintiff – respondent is entitled to a decree for specific performance and recovery of possession in view of Section 22 of the Specific Relief Act. Hence, the trial Court rightly decreed the suit granting the relief of both specific performance of agreement of sale under Ex.A-1 and recovery of possession of the property and the findings of the trial Court do not call for any interference of this Court, in the present Appeal. Hence, the point is held in favour of the plaintiff – respondent and against the defendant – appellant. In view of my foregoing discussion, I find no merits in the Appeal and it deserves to be dismissed.
In the result, the Appeal Suit is dismissed confirming the impugned decree and judgment dated 23.04.1993, passed in Original Suit No.133 of 1988 by the learned Senior Civil Judge, Tadepalligudem, West Godavari District.
In consequence, Miscellaneous Petitions, if any, pending in this Appeal, shall stand dismissed. No order as to costs.
_____________________________ M. SATYANARAYANA MURTHY, J Date: 29-04-2014. Dsh/Bv
HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
A.S.M.P. No.3159 of 2013 AND
APPEAL SUIT No. 904 OF 1994
Date. 29-04-2014
DSH/BV
[1] AIR 1979 SC 14
3 issues framed by the court
Was the sale agreement proved and enforceable despite the defence that signatures on blank stamp papers had been misused?
Did the exercise of discretion to grant specific performance and possession warrant appellate interference?
Could belated documents lacking relevance to the controversy be received as additional evidence in appeal?
Colour shows how this judgement treated each authority
State (Delhi Administration) Vs. Pali RamApplied¶46
AIR 1979 SC 14 · Who else cites this
Mrs. Om Prabha Jain, Appellant Vs. Abnash Chand and anotherApplied¶63
AIR 1968 SC 1083 · Who else cites this
Bhagat Singh and others Vs. Jaswant SinghApplied¶65
AIR 1966 SC 1861 · Who else cites this
M/s. Trojan and Company Vs. RM. N. N. Nagappa ChettiarApplied¶67
AIR 1953 SC 235 (Vol. 40 C.N. 56) · Who else cites this
Allam Gangadhara Rao Vs. Gollapalli GangaraoApplied¶70
AIR 1968 A.P. 291 (Vol.55, C.63)(1) · Who else cites this
Malakayya and another Vs. Avati BuchammaApplied¶72
AIR 1973 A.P. 208 (Vol.60, C.59) · Who else cites this
B. Jogi Reddy Vs. Baldev Singh (died) by LRs.Applied¶78
2003(4) ALD 276 (DB)
Veeramareddy Nagabhushana Rao Vs. Jyothula Venkateswara RaoApplied¶83
2011(2) ALD 629 (DB)
Smt. Pramod Kumari Bhatia Vs. Om Prakash Bhatia and OthersApplied¶90
AIR 1980 SC 446 · Who else cites this
Jaikaran Singh Vs. Sita Ram Agarwalla and othersApplied¶96
AIR 1974 Patna 364 (V. 61, C.101) · Who else cites this
Doraiswami Vs. Rathnammal and othersApplied¶96
AIR 1978 Madras 78 · Who else cites this
Lourdu Mari David and others Vs. Louis Chinnaya Arogiaswamy and othersReferred¶100
AIR 1996 SC 2814 · Who else cites this
Puvvada Chiranjeeva Rao Vs. Busi Koteswara RaoReferred¶102
AIR 2012 AP 17 · Who else cites this
4 provisions across 3 enactments
M. SATYANARAYANA MURTHY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
