Delhi High Court
Om Prakash Gupta vs Ved Prakash on 5 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 342/2017
% 5th September, 2018
OM PRAKASH GUPTA ..... Appellant
Through: Mr. Jaideep Malik and Mr.
Avinash Kapoor, Advocates
(9811106556)
versus
VED PRAKASH ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit
impugning the Judgment of the Trial Court dated 19.11.2016 by which
the trial court has dismissed the suit filed by the appellant/plaintiff for
recovery of a sum of Rs.36,38,500/- from the respondent/defendant.
Appellant/plaintiff claimed the amounts from the
respondent/defendant pursuant to the Agreement dated 6.5.2011,
Ex.PW3/4, and which Agreement acknowledged that the
respondent/defendant had sold excess land as an Attorney of the
appellant/plaintiff and had not paid the sale consideration of the excess
land to the appellant/plaintiff, and therefore by the Agreement dated
6.5.2011 a sum of Rs.40,68,500/- was agreed to be paid to the
appellant/plaintiff.
2. The facts of the case are that the appellant/plaintiff
pleaded that he was the owner of the total land measuring 6931 sq. yds
comprising of K.No.94/1 to 94/4 in the Revenue Estate of Village
Karala, New Delhi. The appellant/plaintiff had entered into an
Agreement to Sell of only 2100 sq. yds. out of total land of 6931 sq.
yds. but the respondent/defendant sold the entire area of 6931 sq. yds.
When confronted, the respondent/defendant by the Agreement dated
6.5.2011, hence agreed to pay the sum of Rs.40,68,500/- to the
appellant/plaintiff. The respondent/defendant however only paid to
the appellant/plaintiff a sum of Rs.2 lacs on 26.5.2012, and a further
sum of Rs.2 lacs on 17.12.2012 and thereafter another sum of
Rs.30,000/-, but thereafter the respondent/defendant changed his
attitude and failed to pay the balance amount. The appellant/plaintiff
therefore served the legal notice dated 1.5.2014 on the
respondent/defendant, and thereafter the subject suit was filed.
3. Respondent/defendant appeared in the suit through
counsel but did not filed the written statement nor paid the cost
imposed. Respondent/Defendant also therefore did not lead evidence.
On the other hand the appellant/plaintiff led evidence and proved the
Agreement dated 6.5.2011 through the attesting witness namely Sh.
Brij Mohan Singh who deposed as PW-2 and another witness who was
present at the time of the execution of the Agreement Sh. Harbans
Kataria who deposed as PW3. The respondent/defendant even in
spite of service in this appeal has failed to appear. The issues framed
in the suit and evidence led by the appellant/plaintiff before the trial
court are as under:-
"Following issues are framed for consideration of ex parte evidence:
(i) Whether plaintiff is entitled to recovery alongwith interest as prayed
for? OPP
(ii) Any other relief."
4. In exparte evidence, plaintiff has examined three witnesses.
PW-1 is Om Prakash Gupta, who is plaintiff himself. He has relied
upon certain documents i.e. copies of GPA, Deed of Will, agreement to
sell, affidavit dated 23.06.1998 and receipt dated 23.06.1998 are Mark
PW1/1 (colly), copies of GPA, Will, agreement to sell, affidavit dated
29.09.1998 dated and receipt dated 29.09.1998 are Mark PW1/2 (colly),
copies of GPA, Will, agreement to sell, affidavit dated 29.09.1998
dated and receipt dated 29.09.1998 are Mark PW1/3 (colly), copies of
GPA, deed of Will dated 29.06.1998 are mark PW1/5, the agreement
dated 07.05.2011 is Mark PW1/6, copy of legal notice and postal
receipts are Ex.PW1/7(colly).
Except the above, PW-1 has reiterated all the facts during his
examination in chief as alleged in the plaint and the same are not
repeated here for the sake of brevity.
5. PW-2 is Brij Mohan Singh who has deposed that in May 2011, he
was residing in Jammu and he knew about certain dealings about land
as Sh. Ved Prakash had sold the lands belonging to Om Prakash and he
was required to pay some money to Om Prakash. He stated that they
all had gathered to reach at an amicable settlement. It is stated that an
agreement dated 06.05.2011 was executed between the plaintiff and
defendant at Jammu and he had put his signature on the said agreement
as witness. It is stated that Rs.40,68,500/- was agreed to be paid by Sh.
Ved Prakash to Om Prakash in his presence at relevant time.
6. PW-3 is Harbans Kataria who has deposed that he is family friend of
plaintiff for more than 30 years and well conversant with the facts and
circumstances of the case. He has stated that the plaintiff was the
owner of the land measuring 6931 sq. yards, details of which is
mentioned in para no.2 of his affidavit. He has further stated that the
plaintiff and defendant, in his presence, had entered into an agreement
to sell in respect of only 2100 sq. yards out of total 6931 sq. yards,
however, the defendant without any authority, permission or knowledge
of the plaintiff, had sold the excess land 4831 sq. yards and did not pay
the amount for the same to the plaintiff and later on when it was
revealed to the plaintiff, an agreement was executed between the
plaintiff and defendant in presence of PW-3 on 07.05.2011, wherein the
defendant agreed to pay a sum of RS.40,68,500/- to the plaintiff in lieu
of said excess portion of land sold by the defendant. He has further
stated that the defendant only made a payment of Rs.2 Lakhs on
26.05.2012, another Rs.2 Lakhs on 17.12.2012 and thereafter an
amount of Rs.30,000/- was paid and the remaining amount of
Rs.36,38,500/- was not paid by the defendant despite repeated requests
of the plaintiff. He has also relied on various document which have
been relied upon by the plaintiff.
The document marked as Mark PW1/1, Mark PW1/2, Mark PW1/3,
Mark PW1/6 are exhibited as Ex.PW3/1 (colly), Ex.PW3/2 (Colly),
Ex.PW3/3 (colly) and Ex.PW3/4 respectively during the evidence of
PW-3."
4. Trial court has dismissed the suit by holding that the suit
of the appellant/plaintiff is vague because how the appellant/plaintiff
was the owner of total of 6931 sq. yds has not been pleaded and
proved. It is also held by the trial court that why the appellant/plaintiff
did not object when possession of his excess land was taken away
from the appellant/plaintiff. The suit of the appellant/plaintiff was
hence dismissed.
5. In my opinion, the trial court has clearly erred in
dismissing the suit because the Agreement dated 6.5.2011 has been
proved through two witnesses and which has been exhibited as
Ex.PW3/4. There is no evidence in rebuttal of the
respondent/defendant, and therefore the trial court was bound to
believe the case as set up by the appellant/plaintiff. It may be noted
that the appellant/plaintiff proved his ownership by proving the
requisite documents which are stated in para 4 of the impugned
judgment and as has been reproduced above. If the
respondent/defendant had a valid defence then there was no reason for
him not to contest the suit and not to appear in this appeal.
6. In view of the aforesaid discussion, this appeal is
allowed. The impugned judgment of the Trial Court dated 19.11.2016
is set aside. Suit of the appellant/plaintiff is decreed against the
respondent/defendant for a sum of Rs.36,38,500/-. Appellant/plaintiff
will also be entitled to pendente lite and future interest till payment at
9% per annum simple. Parties are left to bear their own costs.
7. The appeal is allowed and disposed of as stated above.
Decree sheet be prepared.
SEPTEMBER 05, 2018/ib VALMIKI J. MEHTA, J
