Allahabad High Court

Raghvendra And 3 Others vs Matadeen on 24 February, 2023

Bench: J.J. Munir




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 6							Reserved
 

 
Case :- SECOND APPEAL DEFECTIVE No. - 81 of 2022
 
Appellant :- Raghvendra and others
 
Respondent :- Matadeen
 
Counsel for Appellant :- Yogendra Kumar Srivastava, Himanshi Srivastava
 
Counsel for Respondent :- Anil Kumar,Rahul Sahai
 

 
Hon'ble J.J. Munir,J.

This is a defendants' second appeal, arising out of a suit for specific performance of contract, decreed by both the Courts below.

2. Matadeen, the plaintiff-respondent, instituted Original Suit No.406 of 2013 before the Civil Judge (Sr. Div.), Mainpuri against Raghvendra, the defendant-appellant, claiming a decree for specific performance of a registered agreement to sell dated 28.12.2012, executed by Raghvendra in favour of Matadeen. Matadeen shall hereinafter be called 'the plaintiff'. Raghvendra died pending appeal before the Lower Appellate Court and his heirs and LRs, numbering three, were substituted as defendant-appellant Nos.1/1 to 1/3. Hereinafter Raghvendra represented by his heirs and LRs shall be referred to as 'the defendant'.

3. The relief for specific performance was claimed by the plaintiff on the basis of a registered agreement to sell dated 28.12.2012 (for short, 'the suit agreement') in regard to the defendant's one-third's share in Plot No.1344, admeasuring 0.214 hectare and a one-ninth share in Plot No.1343, admeasuring 0.599 hectare, both situate in Village Devpur Bharthara, Pargana, Tehsil and District Mainpuri. The said property shall hereinafter be called 'the suit property'.

4. The plaintiff's case is that the defendant is a bhumidhar with transferable rights, holding title to the suit property. The defendant was desirous of selling the suit property in order to provide for some necessities. There were negotiations antecedent to the suit agreement between parties, which in the end led to execution of the said agreement for a total sale consideration of Rs.1,36,000/-. Out of the agreed sale consideration, Rs.36,000/- were paid in earnest. It was covenanted in the suit agreement that the sale deed would be executed by the defendant within six months, upon receipt of the balance sale consideration. According to the plaintiff, he conveyed his request to the defendant, asking him to execute a sale deed in terms of the suit agreement, but the latter ignored it. The plaintiff caused a notice dated 12.02.2013 to be served upon the defendant, asking him to execute the sale deed on 14.03.2013. The notice was served upon the defendant, but he did not turn up at the Sub-Registrar's office on the date indicated in the notice. On the said date, the plaintiff remained present in the office of the Sub-Registrar. His attendance was noted by the Sub-Registrar.

5. The plaintiff has pleaded that he has always been ready and willing to perform his part of the contract since 14.03.2013 and is still ready and willing. After 14.03.2013, the plaintiff has regularly demanded execution of the covenanted sale deed by the defendant upon due discharge of his obligations. He had also conveyed his request in this regard through respectable persons of the society, but those too went unheeded.

6. The plaintiff says that at the instance of the defendant, the execution of the sale deed was deferred until 24.06.2013. Therefore, the plaintiff on 24.06.2013 caused another notice to be served upon the defendant, on occasion asking him to execute the necessary sale deed on 28.06.2013. The defendant once again did not appear before the Sub-Registrar to discharge his obligations on the date fixed. The plaintiff remained present at the Sub-Registrar's office along with the balance sale consideration and requisite stamp papers. He got his attendance recorded twice before the Sub-Registrar on that date. Post 28.06.2013, the plaintiff persisted in his demand with the defendant to execute a sale deed in the terms covenanted.

7. It is the plaintiff's case that the defendant, in the end of it all, refused to perform his part of the contract and execute a sale deed on 09.07.2013. The cause of action finally arose on that date. Accordingly, the plaintiff instituted the present suit, claiming a decree for specific performance against the defendant in terms that the defendant be ordered to execute a sale deed in accordance with the suit agreement upon receiving the balance consideration. It was also prayed that in the event the defendant fails to execute a sale deed in the terms ordered by the Court, the necessary deed be executed on the defendant's behalf through process of Court. The defendant also claimed the alternate relief of refund of the earnest with 24% interest per annum from the date of the suit agreement until the decree.

8. The defendant contested the suit and put in his written statement. He did not deny the execution of the suit agreement. It is the defendant's case that the suit agreement was executed by him, while he was inebriated. The defendant is a poor man. He is illiterate and can just sign his name. The suit property is the defendant's sole source of livelihood. He has no other means of sustenance. The plaintiff in connivance with officials of the Sub-Registrar's office made the plaintiff consume some intoxicating drink. The defendant's signatures on the suit agreement were secured by the plaintiff fraudulently while he was inebriated. The defendant was not in possession of his senses when he signed the agreement. He was totally unaware of the execution of the suit agreement and its registration, that took place before the Sub-Registrar. The plaintiff is a cunning man, who is well aware of the fact that the defendant has no other means of livelihood, except the suit property. It is also the defendant's case that he never received the earnest of Rs.36,000/- from the plaintiff. The suit property is very valuable. The plaintiff has acted mala fide and duped the defendant into executing the suit agreement.

9. Upon the pleadings of parties, the following issues were framed (Issues as set out in the Trial Court's judgment in Hindi have been translated to English):

"1. Whether the defendant executed the registered agreement to sell dated 27.12.2013 in the plaintiff's favour relating to the property in question covenanting to sell his one-third share in Plot No.1344, admeasuring 0.214 hectare and a one-ninth share in Plot No.1343, admeasuring 0.599 hectare, situate in Mauja Devpur Bharthara, Pargana, Tehsil and District Mainpuri for a total consideration of Rs.1,36,000/- and received an earnest of Rs.36,000/-?

2. Whether the suit is undervalued and the court-fee paid insufficient?

3. Whether the plaintiff has always been ready and willing to secure execution of sale deed in terms of the agreement and is still ready and willing?

4. Whether the principle of hardship operates in the defendant's favour?

5. To what relief is the plaintiff entitled?"

10. The plaintiff filed by way documentary evidence, the suit agreement in original, an extract of the khatauni, a copy of the notice issued to the defendant, a registered postal receipt relating to the notice, the application moved before the Sub-Registrar for marking his attendance. Through another list, bearing paper No. 29-Ga, the plaintiff has filed a certificate of appreciation issued in favour of the defendant. The stamp papers in original were also filed as paper No.43. A certified copy of the sale deed executed by the defendant in favour Deshraj has also been filed. The plaintiff examined himself as PW-1, beside Sudhir Kumar, who testified as PW-2. One Yashpal testified in support of the plaintiff's case as PW-3.

11. It is noticed that a certain Hakim Singh also filed his evidence on affidavit, but the defendant was not given opportunity to cross-examine. His testimony was, therefore, excluded.

12. The defendant examined himself as DW-1, besides Avinash Yadav as DW-2. In his documentary evidence, he has filed a copy of the plaint, giving rise to O.S. No.46 of 2013, instituted before the Civil Judge (Jr. Div.), Mainpuri.

13. The Trial Court dealt with Issues Nos.1 and 3 together and answered both in the plaintiff's favour. Issue No.2 was recorded to have been disposed of in terms of an order dated 18.09.2014, which would form part of the judgment. Issue No.4 was also answered against the defendant holding that no case of hardship was made out so as to disentitle the plaintiff to specific performance. On Issue No.5, likewise, it was held that the plaintiff was entitled to the relief of specific performance. The Trial Court, accordingly, by judgment and decree dated 19.01.2019 decreed the suit for specific performance of contract.

14. Aggrieved, the defendant instituted an appeal before the District Judge of Mainpuri. The appeal was numbered on the file of the District Judge as Civil Appeal No.2 of 2019. The learned District Judge, who heard the appeal, dismissed it by the judgment and decree dated 14.03.2022.

15. Loosing his cause in both Courts, the defendant has instituted the present appeal from the appellate decree.

16. Heard Mr. Raj Kumar Pandey, Advocate holding brief of Mr. Yogendra Kumar Srivastava, learned Counsel for the defendant in support of the motion under Order XLI Rule 11 C.P.C. and Mr. Rahul Sahai, learned counsel for the plaintiff.

17. Before this Court in support of the motion, learned Counsel for the defendant has argued that the Courts below have committed a manifest error of law in not framing an issue regarding the plaintiff being inebriated, and, therefore, not in a state of mind, where he could make a conscious disposition. It is also argued that the findings of the Courts below are patently illegal, because the suit agreement was not proved by examining the witnesses in breach of the proviso to Section 68 of the Indian Evidence Act. It was also urged that given the entire circumstances, particularly, the fact that the suit property is the defendant's sole source of sustenance, discretion to grant specific performance should not have been exercised; instead a direction for refund ought to have been made. It is the submission of the learned Counsel for the defendant that the Trial Court erred in exercising its discretion under Section 20 of the Specific Relief Act (as it stood before the Amendment of 2018 vide Act No. 18 of 2018 w.e.f. 1-10-2018), in the plaintiff's favour. It is in the last argued that in view of the plea about the defendant being intoxicated and not in a disposing state of mind, burden shifted upon the plaintiff to prove the fact that the defendant was in fact not intoxicated and in a state of mind, where he understood the consequences of his actions.

18. Mr. Rahul Sahai, learned Counsel for the plaintiff has opposed the motion. He submits that the plaintiff's case about due execution of the suit agreement has been proved to the hilt. He further submits that burden lay upon the defendant to prove that he was inebriated or intoxicated, and, in consequence, not in a disposing state of mind when he executed the suit agreement. Learned Counsel points out that the defendant has not produced any evidence on the point. His case rests on bald assertions. The defendant has, therefore, failed to discharge his onus probandi on the issue. Mr. Sahai submits that the present appeal is concluded by pure findings of fact recorded by the two Courts of fact below, where no substantial question of law arises, entitling this Court to interfere under Section 100 of the Code of Civil Procedure.

19. Upon hearing the learned Counsel for parties and perusing the judgments passed by the two Courts below, this Court finds that it is not at all in dispute that the defendant did execute the suit agreement. What he says is that he was not in a disposing state of mind, inasmuch as he was intoxicated. The defendant has alleged that he was made to consume some intoxicating drink by the plaintiff that deprived him of his mental faculties to understand the nature of the transactions when he appended his signatures.

20. The Lower Appellate Court has framed two points of determination, which read:

"(A) Whether the defendant was in an inebriated condition at the time of the execution of the agreement for sale dated 28.12.2004?

(B) Whether the plaintiff has complied the obligations as required under section 16(c) of the Specific Relief Act?"

21. The Trial Court has dealt with the defendant's plea regarding intoxication while deciding Issue No.1, whereas the Lower Appellate Court has dealt with it under Point of Determination (A). The Trial Court has remarked that the defendant in his affidavit, paper No.36-Ka, that has been filed in lieu of his examination-in-chief, not said anything to the effect that he was made to consume liquor by the plaintiff and who was present at that time. It has been noticed by the Trial Court that the defendant, Raghvendra, testifying as DW-1, has been cross-examined by the plaintiff. In the record of his cross-examination at Page No. 3, it has figured that the defendant has sold off all his land in Mauza Nauner in favour of Deshraj, his brother. It has also been acknowledged that he has sold off all his land in Plot No. 1463, 1465 and 1522 in favour of his brother, Deshraj. From the said facts, that have emerged in the cross-examination, the Trial Court has concluded that the defendant's plea that he has no other land, besides the suit property for his sustenance, is belied. He has sold other lands that he owned to his brother.

22. The Trial Court has also remarked that the witness said that he lodged an FIR regarding the offence committed by the plaintiff in securing the suit agreement from him after making him consume intoxicating drinks, but notes that the witness has not produced any document to show that he indeed lodged an FIR. It is also noticed that the FIR is said to have been lodged by his brother, but again there was no documentary evidence. It has been, particularly, remarked by the Trial Court that DW-1, the defendant, has said in his testimony that he did not want to sell the suit property to the plaintiff, which he wished to sell to his brother, Deshraj. From these facts and the subsequent conduct of the defendant in selling his other property to Deshraj, the Trial Court has concluded that the case about the defendant being served some intoxicating drink by the plaintiff and then made to execute the suit agreement is not at all established. The testimony of DW-2, Avnish Yadav on the point has also been examined threadbare by the Trial Court. The witness has spoken about the fact on hearsay from the defendant that he heard one and a half years afterwards from the defendant. The Lower Appellate Court while examining the issue under Point of Determination (A) has opined likewise.

23. This Court is of opinion that the plea that the defendant was made to consume some intoxicating drink under the influence of which he signed the suit agreement is a fact, which had to be proved by the defendant on the basis of cogent evidence led. There is hardly any evidence on the point led by the defendant. Rather, his cross-examination belies the story of the suit agreement being executed under the influence of some intoxicating drink. The Courts below have not believed it and it is not this Court's province to go into the aforesaid issue, which is a pure question of fact. It has also been reasoned by the Lower Appellate Court while disposing of Point of Determination (A) that certificates of appreciation filed by the plaintiff show that the defendant was holding the post of a Subedar until the year 2006. The suit agreement was executed by him in the year 2012. The position that the defendant held shows him to be a man experienced in worldly affairs. We are in agreement with the aforesaid reasoning. Though not said explicitly by the Lower Appellate Court, but the post of a Subedar is generally there in the Army and it is not a post held by a rustic and illiterate. Even if it be assumed that the defendant is not much educated, serving on a responsible position, would give him enough in sight into worldly affairs, where he cannot be heard to say that he is a man unacquainted with the ways of the world. It is difficult in these circumstances to believe that anything of the kind that the story of intoxication is ever happened.

24. It is also to be remarked that if anything like that had happen, the defendant upon being served with a notice to fulfill his part of the contract, would have reported the matter to the police. This is so because the defendant's case about the plaintiff's serving him some intoxicating drink in order to secure execution of the suit agreement, would constitute an offence, which any man would report to the Police. The Courts below have noticed that though the defendant said that he had lodged an FIR, and, later on, said his brother had done so, no document was produced to establish the fact. Thus, the plea regarding the defendant executing the suit agreement under the influence of some intoxicating drink served by the plaintiff appears to be a plea based on afterthought invented to raise a sham defence to the action. The Courts below have discarded it and there is no reason for this Court to reopen that finding in this appeal under Section 100 CPC.

25. So far as the issue regarding readiness and willingness is concerned, the Courts below have recorded concurrent findings based on evidence about the plaintiff being ready and willing evidenced by his consistent action in serving notices demanding execution of the sale deed and then appearing before the Sub-Registrar's office on dates fixed. The plaintiff has also established his appearance before the Sub-Registrar on two occasions on the date indicated in the relative notice by producing certificates of attendance. In these circumstances, readiness and willingness is also proved to the hilt. There is nothing that may give rise to a substantial question of law about it. The non-examination of witnesses of the agreement is also misplaced, inasmuch as the agreement is a registered document and the plaintiff himself does not deny execution. The plea that he raised is about being inebriated at that time. There is no evidence about it. This plea, we have already found to be sans evidence.

26. The learned Counsel for the defendant has argued with much persuasion that it is not a case where specific performance ought to be ordered. The subsequent conduct of the defendant in selling off other land of his to his brother, Deshraj, does not even remotely show a case, where the suit property might be regarded the defendant's sole source of livelihood.

27. In our opinion, the Courts below have rightly exercised their discretion to grant specific performance. There is no reason to take a different view in the exercise of our jurisdiction under Section 100 of the Code. No substantial question of law arises for consideration in this appeal.