THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.633 of 2012
JUDGMENT:
This Appeal Suit is filed against the Judgment and Decree dated 04.06.2012 in O.S.No.783 of 2008 passed by the learned I-Additional Judge Ranga Reddy District at L.B.Nagar, Hyderabad.
2. Appellant/plaintiff filed a suit in O.S.No.783 of 2008 for Specific Performance of Agreement of Sale against the respondent/defendant. Plaintiff was examined himself as P.W.1 and marked Exs.A1 to A5 on his behalf. The defendant filed written statement, but he has not Cross-examined P.W.1 and also not entered into the witness box as D.W.1 and he has not adduced any evidence on his behalf. The trial Court considering the evidence of plaintiff and also the written statement filed by the defendant, dismissed the suit.
3. In the written statement filed by the respondent/defendant, he stated that he was not aware of the appellant/plaintiff. He never executed Ex.A1, plaintiff never paid Rs.4,50,000/- under Ex.A2 and thus the question of receiving the balance sale consideration does not arise. The trial Court 2 after perusal of the record, held that as the respondent/defendant denied the transaction of Rs.4,50,000/-, it is for the appellant/plaintiff to prove the ownership of the respondent/defendant and plaintiff has not examined any attester to prove Ex.A1 and also not filed any document to prove the ownership of the respondent/defendant and he has not taken any steps to compare the signature of the respondent/defendant on Ex.A1 with that of his signature on Vakalath and written statement by sending them to the handwriting expert and accordingly dismissed the suit. Aggrieved by the said Judgment, plaintiff in suit preferred the present appeal.
4. The learned Counsel for the appellant/plaintiff contended that respondent/defendant remained exparte and not examined P.W.1 and also not entered into the witness box. The evidence of P.W.1 stands unrebutted. The trial Court instead of decreeing the suit in his favour, erred in appreciating his evidence and dismissed the suit. It is not for the appellant/plaintiff to prove that respondent/defendant is the owner of the property. Therefore, requested the Court to set aside the Judgment of the trial Court.
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5. Even in the present appeal, when the notice was sent to the respondent/defendant, it was returned with an endorsement 'party refused', as such heard the arguments of the appellant Counsel and reserved the matter for 'Judgment'.
6. Perused the entire evidence on record and also the documents filed before this Court. The Parties herein are referred as plaintiff and defendant as arrayed in the trial Court for the sake of convenience.
7. The defendant filed his written statement on 14.07.2009, P.W.1 examined in-chief and marked Exs.A1 to A5 on 15.07.2011, but he was not Cross-examined by the defendant Counsel even after the payment of costs, as such the right of Cross-examination was forfeited on 25.11.2011 and the matter was posted for defendant's evidence, but the defendant did not enter into the witness box and thus his evidence was closed on 19.01.2012, and thus heard the arguments of the plaintiff on 24.02.2012 and reserved for 'Judgment', but it was re-opened on 17.04.2012 and again reserved for 'Judgment' on 27.04.2012 and the Judgment was pronounced on 04.06.2012. 4
8. Plaintiff relied upon Ex.A1/Agreement of sale and stated that he entered into an Agreement of Sale with the defendant on 24.04.2008 for a total sale consideration of Rs.23,60,000/- and also paid Rs.4,50,000/- as advance on the same day, for which receipt was also executed by the defendant under Ex.A2. He agreed to pay the balance of Rs.19,10,000/- within three months and defendant also agreed to hand over the relevant documents of the suit schedule property under Clause - 6 of the agreement, but the defendant failed to do so, as such he went to the house of the defendant and requested him to receive the balance sale consideration and execute a registered sale deed in his favour, but the defendant refused to execute the registered sale deed, as such he issued legal notice on 05.08.2008, in which he mentioned the above facts in detail, but the said notice was returned with an endorsement 'refused', as such he filed the suit for Specific Performance on 22.08.2008. Though the defendant filed written statement and denied the entire transaction and execution of Exs.A1 and A2, he has not Cross-examined P.W1 at any point of time. Even afterwards when an opportunity was given to him to establish his defence, he has not entered into the witness box. He has not adduced any evidence on his behalf and arguments were also not 5 advanced on his behalf, but the trial Court appreciated the facts erroneously and dismissed the suit.
9. The learned Counsel for the appellant/plaintiff also stated that as per Section 114, III(g) of the Indian Evidence Act, adverse presumption must be drawn against the defendant who does not present himself for Cross-examination and refused to enter into the witness box in order to refute allegations made against him or to support his pleadings in his written statement. For the same proposition, he relied upon the decision of the Hon'ble Apex Court in the case of Vidhyadhar Vs. Manikrao and another 1 and in the case of Iswar Bhai C.Patel alias Bachu Bhai Patel Vs. Harihar Behera and another 2. Even in this case, the defendant did not entered into the witness box and has not made any statement in support of his defence in the written statement, as such an adverse inference has to be drawn against him that what was stated by him in the written statement as not correct.
10. Merely because defendant denied his ownership and stated that he has never seen the plaintiff and further stated that he was in Mumbai on the date of Agreement of Sale, it 1 (1999) 3 SCC 573 2 (1999) 3 SCC 457 6 cannot be treated as gospel truth, it is for him to prove the same by deposing before the Court and also to file relevant documents, but he failed to do so. The appellant/plaintiff on the date of agreement paid Rs.4,50,000/- as advance and also went to the house of the defendant and requested him to receive the balance sale consideration, but he refused to do so, as such he issued legal notice to the defendant and the same was returned with an endorsement 'refused' and thus he filed a suit for Specific Performance of Agreement of Sale to show his bona fides. Merely because he has not examined any attester, it cannot be said that he is not entitled for Specific Performance of Agreement of Sale. The Judgment of the trial Court is patently erroneous and is liable to be dismissed.
11. In the result, the appeal suit is allowed with costs by setting aside the Judgment of the trial Court dated 04.06.2012 in O.S.No.783 of 2008. The appellant herein is directed to deposit the balance sale consideration within one month from the date of this Judgment, on such deposit, respondent/defendant is directed to execute the registered sale deed in his favour. If he fails to do so, appellant/plaintiff is at liberty to approach the concerned Court for execution of the registered sale deed in his favour.
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Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATE: 26.09.2023 tri 8 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA APPEAL SUIT No.633 of 2012 DATE: 26.09.2023 TRI