Asha Rani vs Manghi Lal
2013 Latest Caselaw 3101 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                     Date of decision: 22nd July, 2013
+                         RFA 330/1999
       ASHA RANI                                            ..... Appellant
                          Through:      Mr. M.M. Singh with Mr. S.K. Singh,
                                        Advs.
                                     versus
       MANGHI LAL                                            ..... Respondent

                          Through:      None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. None has appeared for the respondent inspite of the matter having been passed over and having been shown on the Board of this Court for a considerable time.

2. The appeal is of the year 1999 and is listed in the Advance Cause List of today, on today‟s date being given as far back as on 7 th May, 2013. Though none had appeared for the respondent on 7 th May, 2013 also but the date of 7th May, 2013 was given in the presence of the counsel for the respondent on 6th March, 2013. It is thus not deemed expedient to adjourn the matter awaiting the respondent and the counsel for the appellant has been heard and the Trial Court record perused.

3. The appeal impugns the judgment and the decree dated 9 th April, 1999 of the learned Addl. District Judge decreeing the suit filed by the respondent for specific performance of an Agreement of Sale of immovable property against the appellant/defendant by directing the respondent/plaintiff to pay to

the appellant/defendant or deposit with the Court the remaining sale consideration within one month and by further directing the appellant/defendant to obtain the sale permission from the appropriate authorities and get the Sale Deed registered at the costs and expense of the respondent/plaintiff and to put the respondent/plaintiff in possession of the suit property.

4. Notice of the appeal was issued and vide ex parte order dated 4th May, 1999 the implementation of the impugned judgment and decree was stayed. The appeal was admitted for hearing on 22 nd November, 1999 when the interim order earlier granted was also made absolute till the disposal of the appeal. Vide subsequent order dated 19 th September, 2000, the appellant/defendant was also restrained from parting with possession and/or transferring, encumbering or creating any third party interest in the suit property. The said order was also made absolute vide order dated 20 th April, 2001. The appeal was thereafter dismissed in default of appearance of the appellant/defendant but on application of the appellant/defendant restored to its original position.

5. The respondent/plaintiff instituted the suit from which this appeal arises pleading:-

(a). that the appellant/defendant had represented herself to be the exclusive and absolute owner of property No.848, Gali No.54, Lekhu Nagar, Tri Nagar, Delhi along with the plot of land ad measuring 75 sq. yds. underneath the same;

(b). that on or about 7th January, 1990 the appellant/defendant had approached the respondent/plaintiff and expressed desire to sell the property;

(c). that the respondent/plaintiff agreed to purchase the same for a total sale consideration of Rs.1,80,000/-, out of which the respondent/plaintiff on 15th January, 1990 paid a sum of Rs.80,000/- in cash to the appellant/defendant as advance and part payment against receipt;

(d). that as recorded in the receipt, the appellant/defendant was required to apply for and obtain permission to sell the said property, however the appellant/defendant did not take any steps therefor;

(e). that the respondent/plaintiff got issued notice dated 3 rd July, 1990 calling upon the appellant/defendant to perform her part of the Agreement to Sell but the appellant/defendant in reply thereto denied any such agreement and pleaded her signatures on the receipt (claimed by the respondent/plaintiff) to be false; and,

(f). that in fact the appellant/defendant had entered into an Agreement to Sell dated 4th February, 1990 with Smt. Manju Devi for sale of the same property for a total sale consideration of Rs.6,55,000/-.

Hence the suit.

6. The appellant/defendant contested the suit denying any agreement and receipt of any monies from the respondent/plaintiff and averring her signatures on the receipt claimed by the respondent/plaintiff to be forged. It was further pleaded that from the averments in the plaint, of the appellant/defendant having agreed to sell the said property for Rs.6,55,000/- it was clear that the value of the property was Rs.6,55,000/- and not Rs.1,80,000/- and there was no reason for the appellant/defendant to sell the property to the respondent/plaintiff for less than the market price.

7. The respondent/plaintiff besides examining himself also examined one of the two witnesses to the receipt of payment of Rs.80,000/-. The appellant/defendant besides examining herself also examined her son Shri Rajesh Mehta who was averred to have also signed the said receipt as a witness.

8. The learned Addl. District Judge in the impugned judgment though has recorded the following issues to have been framed in the suit:-

"No.1. Whether the plaintiff is entitled to relief of specific performance in respect of the suit property? OPP

No.2. Whether the present suit is not maintainable, as alleged? OPD

No.3. Whether the present suit has not been valued properly for the purpose of court-fee and jurisdiction? If not so, its effect? OPD

No.4. Relief."

has rightly held that the entire case revolved around the „receipt‟ on which Ex.PW1/1 was put and on which the appellant/defendant and her son appearing as DW1 and DW2 had denied their signatures. The contention of the counsel for the appellant/defendant relying on M/s. Aggarwal Hotels (P) Ltd. Vs. M/s. Focus Properties (P) Ltd. 1996 II AD (Delhi) 625 that the said receipt could not constitute an Agreement to Sell was rejected and it was held that the receipt contained the necessary ingredients of an Agreement to Sell. It was further held that the case of the respondent/plaintiff, of the said receipt having been signed by the appellant/defendant and her son was supported by the independent witness PW2 and that although the said witness was cross examined at length, yet nothing of importance cropped up during his long drawn cross examination. It was yet further held that the evidence of the respondent/plaintiff and his witness had an aura of dependability and there was no reason to discard the same; on the contrary the testimony of the appellant/defendant was held to be shaky like a leaf in as much as she had in anxiety to deny her signatures on the receipt had also denied her signatures on her written statement, Vakalatnama and at other places in the Court record; she was thus held to be lying.

9. The learned Addl. District Judge, on his own also compared the disputed signatures of the appellant/defendant and her son with their admitted signatures and found the same to be of the same persons. It was yet further held that though the appellant/defendant had in the written statement taken a plea that they will take action against the respondent/plaintiff for forging their signatures but no such action had been taken till the date of

decision of the suit and which was held to raise doubts as to the bona fides of the appellant/defendant.

10. This appeal was heard on 9th February, 2011 when it was held that the pivotal issue was with regard to the receipt Ex.PW1/1; that before the Trial Court no evidence of an expert was led by either of the parties and the Trial Judge has himself compared the two signatures in exercise of powers under Section 73 of the Indian Evidence Act, 1872. Suo moto powers of Court under Order 41 Rule 27 of the CPC were exercised and the appellant/defendant and her son were asked to produce their undisputed signatures of the contemporaneous time i.e. the date of the receipt and the disputed signatures on Ex. PW1/1 and the said undisputed signatures including on the Agreement dated 4 th February, 1990 in favour of Smt. Manju Devi which had been relied upon by the respondent/plaintiff himself, were sent to the Central Forensic Science Laboratory (CFSL), Kendriya Karyaliya Parisar, Block-4, Lodhi Road, New Delhi for examination by a handwriting expert. The CFSL was directed to appoint a senior person to prepare the report.

11. Thereafter CM No.17816/2011was filed by the appellant/defendant for filing additional documents bearing her admitted signatures of the contemporaneous time for comparing with the disputed signatures. The said application was allowed vide order dated 5 th October, 2011 with the no objection of the counsel for the respondent/defendant.

12. In pursuance to the above, a Report dated 27th November, 2012 has been received from the CFSL inter alia to the effect that the questioned

signatures of neither the appellant/defendant nor her son on the receipt could be connected with their admitted signatures.

13. While commencing dictation of this judgment, the Court Master was instructed to telephonically contact Mr. Harish Pandey, Advocate who has been earlier appearing for the respondent/plaintiff for the last few dates. It is reported that Mr. Harish Pandey, Advocate when so contacted has stated that the respondent/plaintiff has taken away the case file from him.

14. Though the Report of the CFSL was received more than six months ago and the respondent/plaintiff has appeared before this Court thereafter and thus has knowledge of the same but has neither filed any objections thereto nor has chosen to appear today.

15. The judgment and decree of the Addl. District Judge against the appellant/defendant is inter alia on the basis of the learned Addl. District Judge on his own examination finding the disputed signatures with the admitted signatures to be of the same person. However now we have the report, of an expert after scientific examination and backed by reasons, holding the two sets of signatures to be not of the same persons. The said report as aforesaid has not been disputed. The finding thus, of the learned Addl. District Judge in this respect, cannot be sustained.

16. Not only so, I am for the following reasons not able to sustain the impugned judgment:-

(i). the appellant/defendant at the very first instance, in response to the legal notice itself denied having entered into any agreement

with the respondent/plaintiff and also denied that she had signed any receipt. The said reply was soon after the date of the receipt and ordinarily a person who has of his/her own volition entered into an agreement, but for special reason, does not deny the existence thereof;

(b). it is not the case of the respondent/plaintiff that the respondent/plaintiff knew the appellant/defendant in any manner, rather the respondent/plaintiff upon being quizzed in this regard in cross examination replied that he had come to know of the appellant/defendant‟s property being up for sale through a property dealer. However he could not give any particulars of the said property dealer and further stated that he did not even ask the property dealer to accompany him to the appellant/defendant. In ordinary course of such transactions, the property dealer would not have let go of his commission and not played any role in the transaction after informing the appellant/defendant of the same. Moreover, the respondent/plaintiff did not examine the said property dealer who is claimed to have informed the respondent/plaintiff of the property of the appellant/defendant being up for sale;

(c). that a substantial part of the total sale consideration of Rs.1,80,000/- i.e. Rs.80,000/- is stated to have been paid in cash. The respondent/plaintiff in his cross examination could not justify the source of the said money; rather he stated that he

did not even have any bank account and the sum of Rs.80,000/- was collected by him from his salary and from the income of his children. However no particulars of the same were given; it was also stated that he did not have even Rs.1 lac in any other account; this makes the plea of the respondent/plaintiff of payment of Rs.80,000/- qua which the receipt forming the pivot as aforesaid of the transaction, highly suspect;

(d). the appellant/defendant in her examination-in-chief stated that she did not know the respondent/plaintiff at all and there was no cross examination of the appellant/defendant in this regard.

(e). the respondent/plaintiff admitted the Agreement to Sell by the appellant/defendant of the same property within a span of 15 days of the agreement to Sell in favour of the respondent/plaintiff for a sale consideration Rs.6,55,000/-. It is not the case of the respondent/plaintiff that there was any substantial increase in the market price of the property or any reason therefor within the short time of 15 days. The respondent/plaintiff thus admitted the market value of the property to be Rs.6,55,000/- at the time when he claimed the appellant/defendant to have agreed to sell the same to him for Rs.1,80,000/- and rather on this basis has in alternative to the relief of specific performance claimed the relief of damages also. It belies logic that the appellant/defendant would agree to sell her property, which the respondent/plaintiff also admits to

be having a value of Rs.6,55,000/-, to the respondent/plaintiff who is an absolute stranger for Rs.1,80,000/-;

(f). the learned Addl. District Judge was unduly swayed by the denial by the appellant/defendant in her cross examination of her admitted signatures also; often victims of forgery, that too a good one, loose their objectivity and in their anxiety to not, in the alien atmosphere of the Court, mistakenly admit the forged signatures as their own, deny all signatures put to them in cross examination; in the absence of any noting of demeanour of the witness during cross examination , I am unable to on this basis alone discard the testimony of the appellant/defendant;

(g). similarly, the learned Addl. District Judge has given undue weightage to the testimony of the witness to the receipt; the witness was admittedly known to the respondent/plaintiff and not to the appellant/defendant and could not by any standard be said to be "independent".

17. The appeal therefore succeeds and is allowed. The judgment and decree dated 9th April, 1999 of the Court of the Addl. District Judge, Delhi in suit No.1000/1993 is set aside. The respondent/plaintiff however having chosen not to contest the appeal, no order as to costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J

JULY 22, 2013/pp..