Sarla Devi vs Budhan
2011 Latest Caselaw 2276 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 28.04.2011


+                  R.S.A.No. 130/2007 & CM No. 9195/2006

SARLA DEVI                                     ...........Appellant
                         Through:    Mr. Surender Kumar Gupta,
                                     Advocate.

                   Versus

BUDHAN                                          ..........Respondent
                         Through:    Mr. J.C. Mohindro, Advocate

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                  Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated

28.03.2006 which had reversed the finding of the trial judge. Vide

judgment and decree dated 29.03.2005, the suit filed by the

plaintiff, Sh.Budhan seeking specific performance of an

agreement dated 22.05.2000 or in the alternate for recovery of

Rs.1 lac had been dismissed. The impugned judgment had

decreed the suit of the plaintiff; the decree in the sum of Rs. 1 lac

had been passed in favour of the plaintiff along with the interest

at 6% per annum.

2. Plaintiff had entered into an agreement to sell with the

defendant; this was qua 45 sq. yards of property comprising of

one room with latrine, bathroom measuring 16 ft. X 25 ft situate in

Khasra No. 15 of Village Mandoli; total consideration agreed was

Rs. 1,60,000/-; plaintiff had paid the sum of Rs. 50,000/- as an

advance/earnest money. In terms of the aforestated agreement,

the balance amount of Rs. 1, 10,000/- had to be paid by

25.08.2000, on which date the defendant was required to execute

the documents of transfer in favour of the plaintiff before the Sub-

Registrar. The plaintiff reached the office of the Sub-Registrar on

25.08.2000 for getting the documents of transfer executed but the

defendant did not came there till 1 pm.

3. Defendant appeared to be uninterested in the deal and was

backing out from it. Plaintiff was willing and ready to get the deal

materialized and perform his part of contract but defendant was

avoiding it on one pretext or the other. In spite of legal notice

dated 02/09/2000, defendant had not complied with the said

terms. Present suit was accordingly filed.

4. In the written statement, it was stated that the suit was

malfide; and the documents relied upon by plaintiff were forged.

It was contended that the agreement dated 25.05.2000 was

written on a plain paper and not on a non-judicial stamp paper; it

does not bear either the signature or thumb impression on the

front side of it; it is there only on the back page. It was denied

that the plaintiff had paid the amount of Rs. 50,000/- to the

defendant

5. On the pleadings of the parties, following three issues were

framed.

1. Whether the plaintiff has not approached the court with clean hands and has suppressed material facts and has stated false fact? If so, its effect? OPD.

2. Whether the plaintiff is entitled to the relief of specific performance as prayed for? OPP.

3. Relief.

6. Oral and documentary evidence which included two

witnesses on behalf of the plaintiff and one on behalf of the

defendant were examined. The agreement to sell dated

22.05.2000 had been proved as Ex. PW 1/1. On the scrutiny of the

oral and documentary evidence, the testimony of the witnesses of

the plaintiff was disbelieved; the suit of the plaintiff stood

dismissed.

7. This was reversed by the impugned judgment. The

impugned judgment, after scrutiny of the oral and documentary

evidence, was of the view that the plaintiff is entitled; in terms of

the agreement to double the amount i.e. Rs. 1 lac which was

payable along with the interest.

8. This is a second appeal. It had been admitted and on

1307.2007, the following substantial questions of law had been

formulated. They inter alia reads as follows:-

1. Whether the finding given by the First Appellate Court that appellant has admitted the execution of the documents as Ex. PW 1/1 by admitting her thumb impression, signatures thereupon is legally correct whereas close scrutiny of her statement dated 24.10.2002 clearly goes to show that she did not make such an admission? If so, its effect?

2. Whether the appellant is legally bound to pay the decretal amount?

9. On behalf of the appellant, it has been urged that the

judgment of the trial court suffers from a perversity as it has

failed to note that the document Ex. PW-1/1 had admittedly been

written by Dinesh Sharma; Dinesh Sharma had not come into the

witness box; in view of section 67 of the Indian Evidence Act this

document could not have been proved. For this proposition,

reliance has been placed upon a judgment of the Apex Court

reported in AIR 1968 Bombay 112 Sir Mohammad Yusuf &

Another Vs. D. & Anotehr. It is pointed out that PW-1 had also

made contrary statements; he was not clear as to whether

payment was made by him to Sarla Devi or to her husband. The

judgment suffers from a perversity. It is liable to be set aside.

10. Arguments have been rebutted. It is pointed out that the

impugned judgment had correctly noted that DW-1 in her cross-

examination had admitted that the document dated 22.05.2000

was signed and thumbed marked by her on the same date; her

contention was that it was on a blank paper and nothing was

written on it; further that at the time when she was coerced to

thumb mark on the said document her husband was tied up did

not find mention in her written statement. The impugned

judgment calls for no interference.

11. Record has been perused.

12. The impugned judgment had after reconsideration of the

evidence oral and documentary set aside the finding of the trial

Judge. The impugned judgment had correctly noted that the

defendant herself had admitted in her cross-examination the

execution of Ex. PW-1/1; she had admitted that she had thumbed

marked it. Her statement that she had been pressurized to thumb

mark this document as at that time her husband was tied up did

not find mention in her written statement; even otherwise even in

the complaints purported to have been made by her to the police

about this coercion did not mention these facts; her written

statement also was silent on this aspect. Attention has also been

drawn to the examination in chief of DW-1 Sarla Devi wherein in

her deposition on oath she had stated that there is no document

Ex.DW-1/1 to Ex.DW-1/3 as mentioned in her affidavit Ex.DW-1/A.

Ex.DW-1/1 to Ex.DW-1/3 was a reference of the aforenoted

complaints purported to have been made by Sarla Devi to the

police dated 28.05.2001 and 31.05.2001. By making this

deposition on oath DW-1 had de-exhibited these documents

meaning thereby that no such complaints were on the record of

the case.

13. The impugned judgment on no count suffers from any

infirmity. It had noted that the parties had in fact entered into an

agreement to sell dated 22.05.2000 (Ex.PW-1/) by virtue of which

the plaintiff had paid earnest money of `50,000/-; in case the

agreement did not mature, plaintiff was liable to get a refund of

double the amount; on 25.08.2000, the plaintiff had gone to the

office of Sub-Registrar to get the document of sale executed in his

favour; the defendant was deliberately delaying on one count or

the other; the agreement to sell could not be enforced but the

plaintiff was entitled to the double amount which he had paid i.e.

`1 lac. The finding on this score calls for no interference. The

judgment in no manner suffers from any perversity.

14. It is also relevant to state that the statement of the

defendant had been recorded on 24.10.2002 under Order X of the

Code of Civil Procedure. In this statement, she had denied the

execution of the agreement to sell Ex. PW-1/1; however in her

deposition on oath in Court she had admitted this document. On

the preponderance of probabilities and after a detailed

examination of evidence both oral and documentary the court had

held that Ex.PW-1/1 had been executed by the defendant; the

plaintiff was entitled to refund of the earnest money i.e. double

the amount of `50,000/- which amount of `1 lac was rightly

granted in his favour.

15. The judgment relied upon by learned counsel for the

appellant reported in Sir Mohammad Yusuf has no application to

the case. In this case there were certain entries in the books of

account which the Court held that the same could only be proved

by the writer of the document. In this case, Ex. PW-1/1 has been

executed between the plaintiff and the defendant of whom the

plaintiff has come into the witness box to prove the document;

defendant has also admitted her thumb mark on it.

16. Substantial questions of law are accordingly answered in

favour of the respondent and against the appellant. There is no

merit in this appeal. Appeal as also pending application are

dismissed.

INDERMEET KAUR, J.

APRIL 28, 2011 a