Delhi High Court
Swarn Singh vs Surinder Kumar & Ors on 20 February, 2018
$~21
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on :- 20th February, 2018
+ C.R.P. 31/2018
SWARN SINGH ..... Petitioner
Through: Mr. Manav Gupta with Ms. Esha
Dutta & Mr. Sahil Garg, Advocates.
versus
SURINDER KUMAR & ORS ..... Respondents
Through: Mr. J.P. Sengh, Senior Advocate with
Ms. Jyoti Mendiratta, Ms. Aastik
Dhingra, Ms. Manisha Mehta,
Ms. Vaishal Tanwar & Ms. Mrigna
Shekhar, Advocates.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
Caveat No.137/2018
Since the counsel for the caveator has appeared, the caveat
stands discharged.
CM No.6375/2018 (exemption)
Allowed, subject to all just exceptions.
C.R.P. 31/2018 & CM No. 6374/2018
1. The petitioner is the plaintiff of civil suit presently registered as
CS No.7179/16 pending on the file of Additional District Judge-05,
South District, Saket. The suit, as instituted, was for a decree of
specific performance on the basis of receipt-cum-agreement dated
16.06.1993 followed by two other agreements dated 11.12.1993 and
11.01.1995. As per the case of the plaintiff, the subject property was
to be sold to him for a total consideration of Rs.29,25,000/-, he having
claimed that he had paid the entire consideration to the respondents
(defendants) who, in turn, had failed to execute the necessary
documents.
2. The respondents/defendants are contesting the suit, inter alia,
on the plea that the agreement which could be enforced was entered
upon on 15.03.1993 and followed by another agreement dated
15.04.1993 and that the total consideration settled between the parties
for such sale was Rs.1,89,94,791/-, the defendants having
acknowledged the receipt from the plaintiff a total amount of Rs.48.25
lakhs.
3. The plaintiff, thereafter, moved an application for amendment
of the plaint so as to plead that sale consideration settled was
Rs.1,89,94,791/-, as pleaded by the defendants, and that he had
already paid the entire sale consideration and thus the payment
actually made being inclusive of amount of Rs.48.25 lakhs as
acknowledged by the defendants. The application for amendment was
allowed by the learned Single Judge of this Court at a stage where the
case was pending on the original side of this Court. The said order,
upon being challenged [in FAO(OS) No.103/2008] was set aside by
judgment dated 21.05.2008 by a division bench of this Court. It is
conceded that the plaintiff thereafter had moved SLP before the
Supreme Court but without success.
4. By order dated 19.11.2008 issues were framed to take the case
to trial, the first and sixth issues, on which this order must focus,
reading as under:-
"1. Whether the agreement of the year 1993 between the
parties was as set out in the plaint dated 25 th January,
1997 or as pleaded by the defendants? OPPr
6. Whether the agreement of the year 1993 stood
novated? OPD."
5. During the course of trial at the stage of evidence, the plaintiff
wanted to bring on record documents purporting to show payment of
consideration, in cash, beyond the amount of Rs.48.25 lakhs to the
defendants. The plaintiff concededly having submitted such
documents with his affidavit in evidence, himself de-exhibited them.
Later, he wanted to tender these documents during cross-examination
of the defendant which was repelled. He approached this Court by
Civil Revision No.278/2017 which was disposed of by order dated
17.01.2018 it having been withdrawn, the plaintiff having taken the
liberty to move an application before the trial court for
reframing/recasting of issue no.1 as framed on 19.11.2008 and,
thereafter, to move another application for liberty to confront the first
defendant in his testimony (as DW-1) with documents in the above-
mentioned nature.
6. It appears that the plaintiff, instead of seeking reframing of first
issue, moved an application before the trial judge seeking recasting of
several of the issues. The learned trial judge vide order dated
07.02.2018, which is impugned by the petition at hand, has reframed
issues No.1 and 6, as requested by the plaintiff, they now taking the
following shape:-
"Issue No.1: Whether the agreement between the parties
consists of the receipts cum agreement dated 16.06.1993,
11.12.1993 and 11.01.1995 for a total sale consideration
of Rs.29,25,000/- as pleaded by the plaintiff, or the
agreement consists of the receipt cum agreement dated
15.03.1993 and the agreement dated 15.04.1993 for a
total sale consideration of Rs.1,89,94,791/- as pleaded by
the defendants? OPPr.
Issue no.6:- Whether the agreement consisting of the
receipt cum agreement dated 15.03.1993 and the
agreement dated 15.04.1993 stood novated in the year
1995? OPD"
7. The request for fresh evidence to be allowed to be adduced after
reframing of the issues, however, has been rejected by the trial judge
observing that no new issues have been framed. It is the said view
which is sought to be assailed by the petition at hand.
8. The plaintiff, by his application before the trial court, had
suggested the reframing/recasting of issue no.1, as framed on
19.11.2008, by it being split up into two issues, his formulation
reading thus:-
"1. Whether the agreements between the parties was as
set out in the plaint, i.e. dated 16.06.1993, 11.12.1993
and 11.01.1995 for a total sale consideration of
Rs.29,25,000/-? OPP.
2. Whether the agreements between the parties was as
set out in the written statement, i.e. dated 15.03.1993 and
15.04.1993, for a total sale consideration of
Rs.1,89,94,791/- and the defendants had only received a
sum of Rs.48.25 Lakhs? OPD.
9. It appears the learned trial judge, instead of splitting up the
issue with respect to the contentions of both sides, has chosen to go by
the previous arrangement by merging the issue respecting the different
set of agreements relied upon by both sides into one.
10. Learned senior counsel for the respondents fairly agrees that
issue No.1 ideally should have been split up into two issues, clearly
placing the burden with respect to the agreements set up by the parties
at their door in terms of the pleadings. He also fairly agrees that the
consideration paid at the time of novation of the agreement in 1995, an
event which is subject matter of issue No.6, as now reframed by the
trial court, also ought to have been reflected clearly and correctly in
the issues.
11. Thus, the issues No.1 and 6 are reframed as under:-
1(a). Whether the agreements between the parties was as
set out in the plaint, i.e. dated 16.06.1993, 11.12.1993
and 11.01.1995 for a total sale consideration of
Rs.29,25,000/-? OPP.
1(b). Whether the agreements between the parties was
as set out in the written statement, i.e. dated 15.03.1993
and 15.04.1993, for a total sale consideration of
Rs.1,89,94,791/- and the defendants had only received a
sum of Rs.31.25 Lakhs? OPD.
6. Whether the agreement consisting of the receipt cum
agreement dated 15.03.1993 and the agreement dated
15.04.1993 stood novated in the year 1995, plaintiff
having paid an amount of Rs. 17 lakhs at that stage?
OPD.
12. The learned counsel for the petitioner/plaintiff submits that he
does not press for any further relief at this stage as he reserves his
right to move before the trial court an amendment application to bring
in the prayer for grant of compensation in terms of Section 21 of the
Specific Relief Act, 1963.
13. The petition and the application filed therewith are disposed of
in above terms.
R.K.GAUBA, J
FEBRUARY 20, 2018
srb
