This appeal under Section 96 of Code of Civil Procedure, 1908 (in
short 'CPC') has been filed challenging the impugned judgment and decree
passed by the Trial Court on 24.10.1997 in Civil Suit No.25-A/1996 filed
by the present appellants against the defendants/respondents for seeking
decree of specific performance of contract. The suit was dismissed by the
Court on the ground that the plaintiffs failed to prove readiness and
willingness to perform the contract and pay the remaining amount of sale
consideration but granted decree of permanent injunction restraining
defendants from dispossessing the plaintiffs from the disputed property
without obtaining a decree of possession or eviction.
2. The appeal has been preferred by the plaintiffs/appellants
challenging the findings given by the trial Court against them that they
failed to prove their readiness and willingness to perform the contract and
claimed that the suit be decreed in toto because the Court below has found
that the agreement dated 27.11.1983 was a valid one and Rs.60,735/- was
paid by the plaintiffs to the defendant/respondent No.1.
3. No one has appeared on behalf of defendant/respondent No.1.
4. Shri Ravish Agrawal, learned senior counsel appearing for
respondent No.2 not only opposed the submissions made by learned
counsel for the appellants but has also challenged the findings given by the
Court below in favour of plaintiffs in respect of validity of agreement dated
27.11.1983 and also challenged the decree of permanent injunction granted
in favour of the plaintiffs/appellants.
5. As per the facts of the case, a suit has been filed by the
plaintiffs/appellants against the defendants for seeking decree of specific
performance of contract stating therein that on 27.11.1983, the
defendant/responded No.1 entered into an agreement for selling her land
that is 21 ft. x 71 ft. and 10 ft. x 40 ft. to the plaintiffs who are the tenants
in the suit premise and possessing the land for the past 40 years and
therefore, defendant/responded No.1 agreed to sell the land to the plaintiffs
taking Rs.60,000/- in advance out of the total sale consideration of
Rs.1,60,735/-. As per the agreement, the sale was to be executed within 12
years from the date of agreement by paying remaining amount of the sale
consideration i.e. Rs.1,00,735/- and after selling the land, the plaintiffs
would not be treated as tenant of defendant/respondent No.1. It is
mentioned in the plaint that the plaintiffs were ready to pay the amount of
Rs.1,00,735/- and to get the sale deed registered on their expenses but
defendant No.1 was dilly-dallying to perform her part and not showing
willingness to get the sale deed executed and as such suit has been filed for
seeking decree of specific performance of contract.
6. The defendant/respondent No.1 remained ex parte and did not file
any written statement. However, defendant/respondent No.2 filed her
written statement denying the execution of agreement dated 27.11.1983 by
defendant No.1 and also stated that the said agreement is a forged and
fabricated document and the same was prepared with a fraudulent intention
so as to execute the agreement between defendant No.1 and defendant
No.2 on 25.12.1983 whereunder defendant No.1 agreed to sell the land i.e.
21 ft. x 71 ft. on an amount of Rs.1,00,000/- and out of which Rs.10,000/-
has been paid in advance by the defendant No.2 to defendant No.1. As per
the stand taken by defendant No.2, the plaintiffs and defendant No.1
colluded with each other so as to make the agreement dated 25.12.1983
redundant.
7. She has also denied the other averments made in the plaint. A suit
has also been filed by the defendant No.2 against defendant No.1 for
specific performance of contract and that suit was registered as 6-A/98 but
by the judgment and decree dated 15.01.1997, though, the Court accepted
the agreement dated 25.12.1983 as a valid one but refused to grant decree
of specific performance of contract but directed defendant No.1 to refund
the amount of Rs.10,000/- to defendant No.2 with an interest @ 6% against
which an appeal was preferred before the High Court and that appeal is
pending. It is stated by the defendant/respondent No.2 that plaintiffs and
defendant No.1 colluded with each other and filed a false and fabricated
suit so as to get the judgment and decree passed in favour of defendant
No.2 and against defendant No.1 ineffective. Therefore, it is claimed that
the suit be dismissed as that has been filed by the plaintiffs in collusion
with defendant No.1 and plaintiffs have not approached the Court with
clean hands and clean heart.
8. The trial Court framed as many as 09 issues and refused to grant
decree of specific performance of contract mainly on the ground that the
plaintiffs failed to prove any readiness and willingness to perform the
contract and to pay the remaining amount of sale consideration and as such
they have not complied with the requisite requirement of Section 16(c) of
the Specific Relief Act, 1963 (hereinafter referred to as 'Act, 1963').
However, the Court granted decree of permanent injunction restraining
defendants from getting the possession of the suit land without getting
decree of eviction and possession against the plaintiffs. No appeal was
preferred by defendant No.1. An appeal was preferred by the
plaintiffs/appellants challenging the impugned judgment and decree mainly
on the ground that the Court erred in deciding the issue No.3 against
plaintiffs whereas they have successfully proved their part and they were
always ready and willing to execute the contract. On the other hand, the
impugned judgment and decree was challenged by respondent No.2 on the
ground that the finding with regard to validity of agreement dated
27.11.1983 is liable to be set aside and also that no decree of permanent
injunction in the facts and circumstances of the case could have been
granted in favour of the plaintiffs.
9. I have heard the rival contentions made by the learned counsel for
the parties and also perused the record.
10. Shri Sanghi, learned senior counsel appearing for the appellants has
raised a preliminary objection that the respondent No.2 has no right to
challenge the finding given by the Court below in a suit preferred by the
plaintiffs/appellants in absence of any appeal filed by them or any cross-
objection filed under Order 41 Rule 22 of CPC.
11. On the other hand, Shri Agrawal, learned senior counsel has
submitted that defendant/respondent No.2 has every right to challenge the
findings recorded against her by the Court below even without filing any
cross-objection.
12. This Court thinks fit to decide the objection raised by Shri Sanghi
first so as to allow Shri Agrawal to attack the impugned judgment and
13. In support of his contentions, Shri Sanghi, learned senior counsel has
relied upon the judgments pronounced by the Supreme Court in the cases
of Hardevinder Singh v. Paramjit Singh and others reported in (2013) 9
SCC 261, Hiriya Bai v. Butha and others, 2023 SCC OnLine MP 1214,
Biswajit Sukul v. Deo Chand Sarda and others reported in (2018) 10
SCC 584 and Laxman Tatyaba Kankate and another v. Taramati
Harishchandra Dhatrak reported in (2010) 7 SCC 717 and Nagar Palika
Nigam, Gwalior through Commissioner, v. Motilal, 1977 SCC OnLine
MP 19.
15. Considering the rival submissions made by learned counsel for the
parties on this issue and cases relied upon by them, it is apt to mention the
respective provision i.e. Order 41 Rule 22 of CPC which reads as under :-
"22. Upon hearing, respondent may object to
decree as if he had preferred a separate appeal --
(1) Any respondent, though he may not have
appealed from any part of the decree, may not only
support the decree [but may also state that the finding
against him in the Court below in respect of any issue
ought to have been in his favour; and may also take
any cross-objection] to the decree which he could
have taken by way of appeal provided he has filed
such objection in the Appellate Court within one
month from the date of service on him or his pleader
of notice of the day fixed for hearing the appeal, or
within such further time as the Appellate Court may
see fit to allow.
Explanation--A respondent aggrieved by a finding of
the Court in the judgment on which the decree
appealed against is based may, under this rule, file
cross-objection in respect of the decree insofar as it is
based on that finding, notwithstanding that by reason
of the decision of the Court on any other finding
which is sufficient for the decision of the suit, the
decree, is, wholly or in part, in favour of that
respondent.
(2) Form of objection and provisions applicable
thereto -- Such cross-objection shall be in the form
of a memorandum, and the provisions of rule 1, so far
as they relate to the form and contents of the
memorandum of appeal, shall apply thereto.
(4) Where, in any case in which any respondent has
under this rule filed a memorandum of objection, the
original appeal is withdrawn or is dismissed for
default, the objection so filed may nevertheless be
heard and determined after such notice to the other
parties as the Court thinks fit.
(5) The provisions relating to appeals by indigent
persons shall, so far as they can be made applicable,
apply to an objection under this rule."
16. Learned counsel for the appellants has placed reliance upon a
decision in the case of Hardevinder Singh (supra) wherein the Supreme
Court has observed as under :-
"21. After the 1976 Amendment of Order 41 Rule 22, the
insertion made in sub-rule (1) makes it permissible to file
a cross-objection against a finding. The difference is
basically that a respondent may defend himself without
taking recourse to file a cross-objection to the extent the
decree stands in his favour, but if he intends to assail any
part of the decree, it is obligatory on his part to file the
cross-objection. In Banarsi v. Ram Phal [(2003) 9 SCC
606 : AIR 2003 SC 1989] , it has been observed that the
amendment inserted in 1976 is clarificatory and three
situations have been adverted to therein. Category 1 deals
with the impugned decree which is partly in favour of the
appellant and partly in favour of the respondent. Dealing
with such a situation, the Bench observed that in such a
case, it is necessary for the respondent to file an appeal or
take cross-objection against that part of the decree which
is against him if he seeks to get rid of the same though he
is entitled to support that part of the decree which is in
his favour without taking any cross-objection. In respect
of two other categories which deal with a decree entirely
in favour of the respondent though an issue had been
decided against him or a decree entirely in favour of the
respondent where all the issues had been answered in his
favour but there is a finding in the judgment which goes
against him, in the pre-amendment stage, he could not
take any cross-objection as he was not a person aggrieved
by the decree. But post-amendment, read in the light of
the Explanation to sub-rule (1), though it is still not
necessary for the respondent to take any cross-objection
laying challenge to any finding adverse to him as the
decree is entirely in his favour, yet he may support the
decree without cross-objection. It gives him the right to
take cross-objection to a finding recorded against him
either while answering an issue or while dealing with an
issue. It is apt to note that after the amendment in the
Code, if the appeal stands withdrawn or dismissed for
default, the cross-objection taken to a finding by the
respondent would still be adjudicated upon on merits
which remedy was not available to the respondent under
the unamended Code."
17. Further, in the case of Biswajit Sukul (supra), again the Supreme
Court dealing with the issue with regard to the cross-objection provided
under Order 41 Rule 22 of CPC, has observed as under :-
"14. The plaintiff in his first appeal did not challenge the
finding of the trial court recorded on the first part of Issue
4 and rightly so because it was already answered by the
trial court in his favour. The first appellate court,
therefore, could not examine the legality and correctness
of this finding in the plaintiff's appeal unless it was
challenged by the defendants by filing cross-objection
under Order 41 Rule 22 of the Code in the appeal.
19. We, however, make it clear, that since the
defendants did not file any cross-objection in the appeal
under Order 41 Rule 22 of the Code, they are not allowed
to file the cross-objection at such belated stage taking
advantage of the remand of the appeal to the first appellate
court by this Court."
18. In this judgment the Supreme Court has set aside the impugned
judgment and decree and remitted the matter but not allowed the
- 10 -
respondents to file cross-objection because they did not file the same
before the High Court and because of limitation the respondents were
restrained to file cross-objection. This is a case in which impugned
judgment and decree was set aside and matter was remanded back.
19. In the case of Laxman Tatyaba Kankate (supra), the Supreme
Court has observed as under:-
"16. Coming to the other submission, that the land could
not be transferred in favour of the respondent in view of
the restriction contained in Section 12(1)(c) and Section
12(2) of the Resettlement Act, a bare reading of these
provisions shows that the Government can grant
permission for transfer of the property, subject to such
conditions, as it may deem fit and proper."
Although the finding given by the Supreme Court in this case is per
incuriam for the reason that the Supreme Court in the case of Ravinder
Kumar Sharma v. State of Assam and others, (1999) 7 SCC 435 dealing
with the provisions of Order 41 Rule 22 CPC has observed very
categorically that filing of cross objection after 1976 amendment is purely
optional and not mandatory and observed as under :-
"23. In our view, the opinion expressed by Mookerjee, J.
of the Calcutta High Court on behalf of the Division
Bench in Nishambhu Jena case [(1984-85) 86 CWN 685]
and the view expressed by U.N. Bachawat, J. in Tej
Kumar case [AIR 1981 MP 55] in the Madhya Pradesh
High Court reflect the correct legal position after the 1976
Amendment. We hold that the respondent-defendant in an
appeal can, without filing cross-objections attack an
adverse finding upon which a decree in part has been
passed against the respondent, for the purpose of
- 11 -
sustaining the decree to the extent the lower court had
dismissed the suit against the defendant-respondent. The
filing of cross-objection, after the 1976 Amendment is
purely optional and not mandatory. In other words, the
law as stated in Venkata Rao case [AIR 1943 Mad 698 :
ILR 1944 Mad 147 (FB)] by the Madras Full Bench and
Chandre Prabhuji case [Sri Chandre Prabhuji Jain Temple
v. Harikrishna, (1973) 2 SCC 665 : AIR 1973 SC 2565] by
this Court is merely clarified by the 1976 Amendment and
there is no change in the law after the amendment."
20. This view has also been followed in the latest decision of Supreme
Court in the case of Saurav Jain and another v. A.B.P. Design and
another, (2022) 18 SCC 633 wherein the Supreme Court considered the
requirement of filing cross-objection under Order 41 Rule 22 CPC and
observed as under:-
"28. Order 41 Rule 22(2)CPC states that a "cross-
objection shall be filed in the form of a memorandum, and
the provisions of Rule 1, so far as they relate to the form
and contents of the memorandum of appeal, shall apply
thereto". This Court in S. Nazeer Ahmed v. State Bank of
Mysore [S. Nazeer Ahmed v. State Bank of Mysore,
(2007) 11 SCC 75] elaborated on the form of objections
made under Order 41 Rule 22CPC. In Nazeer Ahmed [S.
Nazeer Ahmed v. State Bank of Mysore, (2007) 11 SCC
75], the respondent had filed a suit for enforcement of an
equitable mortgage. In deciding the suit, the trial court
rejected the argument of the appellant-defendant and held
that the suit was not barred by Order 2 Rule 2CPC.
However, the court dismissed the suit on grounds of
limitation. On an appeal filed by the respondent before the
High Court, the High Court observed [State Bank of
Mysore v. S. Nazeer Ahmed, 2003 SCC OnLine Kar 928]
- 12 -
that although the suit was barred by Order 2 Rule 2CPC,
the appellant had not challenged this finding of the trial
court by filing a memorandum of cross-objection. Thus,
the High Court granted the respondent a decree against the
appellant. When this finding of the High Court was
assailed before this Court, P.K. Balasubramanyam, J. held
that a memorandum of cross-objection needs to be filed
while taking recourse to Order 41 Rule 22 only when the
respondent claims a relief that had been rejected by the
trial court or seeks an additional relief apart from that
provided by the trial court. The Court held that a
memorandum of objection need not be filed when the
appellant only assailed a "finding" of the lower court:
(Nazeer Ahmed case [S. Nazeer Ahmed v. State Bank of
Mysore, (2007) 11 SCC 75] , SCC p. 80, para 7)
"7. The High Court, in our view, was clearly in error
in holding that the appellant not having filed a
memorandum of cross-objections in terms of Order 41
Rule 22 of the Code, could not challenge the finding
of the trial court that the suit was not barred by Order
2 Rule 2 of the Code. The respondent in an appeal is
entitled to support the decree of the trial court even by
challenging any of the findings that might have been
rendered by the trial court against himself. For
supporting the decree passed by the trial court, it is
not necessary for a respondent in the appeal, to file a
memorandum of cross-objections challenging a
particular finding that is rendered by the trial court
against him when the ultimate decree itself is in his
favour. A memorandum of cross-objections is needed
only if the respondent claims any relief which had
been negatived to him by the trial court and in
addition to what he has already been given by the
decree under challenge. We have therefore no
- 13 -
hesitation in accepting the submission of the learned
counsel for the appellant that the High Court was in
error in proceeding on the basis that the appellant not
having filed a memorandum of cross-objections, was
not entitled to canvas the correctness of the finding on
the bar of Order 2 Rule 2 rendered by the trial court."
(emphasis supplied)
29. It is apparent from the amended provisions of Order
41 Rule 22 CPC and the above authorities that there are
two changes that were brought by the 1976 Amendment.
First, the scope of filing of a cross-objection was
enhanced substantively to include objections against
"findings" of the lower court; second, different forms of
raising cross-objections were recognised. The amendment
sought to introduce different forms of cross-objection for
assailing the findings and decrees since the amendment
separates the phrase "but may also state that the finding
against him in the court below in respect of any issue
ought to have been in his favour" from "may also take any
cross-objection to the decree" with a semi colon.
Therefore, the two parts of the sentence must be read
disjunctively. Only when a part of the decree has been
assailed by the respondent, should a memorandum of
cross-objection be filed. Otherwise, it is sufficient to raise
a challenge to an adverse finding of the court of first
instance before the appellate court without a cross-
objection.
30. The applicability of the principle in Order 41 Rule 22
CPC to proceedings before this Court under Article 136 of
the Constitution was considered by a Constitution Bench
in the decision in Ramanbhai Ashabhai Patel v. Dabhi
Ajitkumar Fulsinji [Ramanbhai Ashabhai Patel v. Dabhi
Ajitkumar Fulsinji, 1964 SCC OnLine SC 29 : AIR 1965
- 14 -
SC 669] . J.R. Mudholkar, J. overruled the judgment of
the three-Judge Bench in Vashist Narain Sharma v. Dev
Chandra [Vashist Narain Sharma v. Dev Chandra, (1954)
2 SCC 32 : AIR 1954 SC 513] which had rejected the
argument of the respondent that a party could raise
arguments on the "findings" that were against him, while
supporting the judgment. It was held that Order 41 Rule
22CPC does not have application to an appeal under
Article 136. In Ramanbhai Ashabhai Patel [Ramanbhai
Ashabhai Patel v. Dabhi Ajitkumar Fulsinji, 1964 SCC
OnLine SC 29 : AIR 1965 SC 669] , this Court held that
the provisions of Order 41 Rule 22CPC are not applicable
to the Supreme Court and the rules of the Supreme Court
do not provide for any analogous provisions. However, it
was held that this deficiency must be supplemented by
drawing from CPC : (Ramanbhai Ashabhai Patel case
[Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji,
1964 SCC OnLine SC 29 : AIR 1965 SC 669] , SCC
OnLine SC para 18)
"18. ... Apart from that we think that while dealing
with the appeal before it this Court has the power to
decide all the points arising from the judgment
appealed against and even in the absence of an
express provision like Order 41 Rule 22 of the Code
of Civil Procedure it can devise the appropriate
procedure to be adopted at the hearing. There could be
no better way of supplying the deficiency than by
drawing upon the provisions of a general law like the
Code of Civil Procedure and adopting such of those
provisions as are suitable. We cannot lose sight of the
fact that normally a party in whose favour the
judgment appealed from has been given will not be
granted special leave to appeal from it. Considerations
of justice, therefore, require that this Court should in
- 15 -
appropriate cases permit a party placed in such a
position to support the judgment in his favour even
upon grounds which were negatived in that
judgment."
(emphasis supplied)
31. Expanding on this further, a two-Judge Bench (R.C.
Lahoti, J. speaking for himself and Brijesh Kumar, J.) of
this Court in Jamshed Hormusji Wadia v. Port of Mumbai
[Jamshed Hormusji Wadia v. Port of Mumbai, (2004) 3
SCC 214] , observed : (SCC pp. 245-46, para 35)
"35. A few decisions were brought to the notice of this
Court by the learned Additional Solicitor General
wherein this Court has made a reference to Order 41
Rule 22CPC and permitted the respondent to support
the decree or decision under appeal by laying
challenge to a finding recorded or issue decided
against him though the order, judgment or decree was
in the end in his favour. Illustratively, see Ramanbhai
Ashabhai Patel [Ramanbhai Ashabhai Patel v. Dabhi
Ajitkumar Fulsinji, 1964 SCC OnLine SC 29 : AIR
1965 SC 669] , Northern Railway Coop. Credit
Society Ltd. [Northern Railway Coop. Credit Society
Ltd. v. Industrial Tribunal, 1967 SCC OnLine SC 73 :
AIR 1967 SC 1182] and Bharat Kala Bhandar (P) Ltd.
[Bharat Kala Bhandar (P) Ltd. v. Municipal
Committee, Dhamangaon, (1966) 59 ITR 73 : 1965
SCC OnLine SC 170 : AIR 1966 SC 249] The learned
Additional Solicitor General is right. But we would
like to clarify that this is done not because Order 41
Rule 22CPC is applicable to appeals preferred under
Article 136 of the Constitution; it is because of a basic
principle of justice applicable to courts of superior
jurisdiction. A person who has entirely succeeded
- 16 -
before a court or tribunal below cannot file an appeal
solely for the sake of clearing himself from the effect
of an adverse finding or an adverse decision on one of
the issues as he would not be a person falling within
the meaning of the words "person aggrieved". In an
appeal or revision, as a matter of general principle, the
party who has an order in his favour, is entitled to
show that even if the order was liable to be set aside
on the grounds decided in his favour, yet the order
could be sustained by reversing the finding on some
other ground which was decided against him in the
court below. This position of law is supportable on
general principles without having recourse to Order
41 Rule 22 of the Code of Civil Procedure. Reference
may be had to a recent decision of this Court in
Nalakath Sainuddin v. Koorikadan Sulaiman
[Nalakath Sainuddin v. Koorikadan Sulaiman, (2002)
6 SCC 1] and also Banarsi v. Ram Phal [Banarsi v.
Ram Phal, (2003) 9 SCC 606] . This Court being a
court of plenary jurisdiction, once the matter has come
to it in appeal, shall have power to pass any decree
and make any order which ought to have been passed
or made as the facts of the case and law applicable
thereto call for. Such a power is exercised by this
Court by virtue of its own jurisdiction and not by
having recourse to Order 41 Rule 33CPC though in
some of the cases observations are available to the
effect that this Court can act on the principles
deducible from Order 41 Rule 33CPC. It may be
added that this Court has jurisdiction to pass such
decree or make such order as is necessary for doing
complete justice in any cause or matter pending
before it. Such jurisdiction is conferred on this Court
by Article 142 of the Constitution and this Court is not
- 17 -
required to have recourse to any provision of the Code
of Civil Procedure or any principle deducible
therefrom. However, still, in spite of the wide
jurisdiction being available, this Court would not
ordinarily make an order, direction or decree placing
the party appealing to it in a position more
disadvantageous than in what it would have been had
it not appealed."
(emphasis supplied)
32. On a perusal of the above authorities, it is evident
that the principle stipulated in Order 41 Rule 22CPC can
be applied to petitions under Article 136 of the
Constitution because of this Court's wide powers to do
justice under Article 142 of the Constitution. Since the
principle in Order 41 Rule 22CPC furthers the cause of
justice by providing the party other than the "aggrieved
party" to raise any adverse findings against them, this
Court can draw colour from Order 41 Rule 22CPC and
permit objections to findings.
33. From the above it has been established that it is not
necessary that a challenge to the adverse findings of the
lower court needs to be made in the form of a
memorandum of cross-objection. In the present case, we
note that the appellant had raised an objection to the
jurisdiction of the trial court for entertaining the suit on
the ground that an injunction and declaratory relief could
not have been given. Although the trial court passed a
decree in favour of the appellant, it had decided against
the appellant on the question of jurisdiction. This finding
was not challenged by the appellant before the High Court
in the form of a memorandum of cross-objection. The
judgment of the High Court makes no mention that a plea
of lack of jurisdiction was taken by either the appellant or
- 18 -
MDA. Before this Court, the appellant has not filed the
counter-affidavit it had filed before the High Court. Thus,
the conclusion that emanates from the record before us is
that the ground of jurisdiction was only raised by the
appellant before the trial court and not before the High
Court. In effect then, this Court would have to adjudicate
on a plea, which did not form a part of the decision of the
High Court in challenge before us."
21. Likewise, in the case of Prabhakar Gones Prabhu Navelkar v.
Saradchandra Suria Prabhu Navelkar, (2020) 20 SCC 465, the
Supreme Court further observed the requirement of filing cross-objection
in writing as per Order 41 Rule 22 of CPC and clarified that it should have
been filed in writing and observed as under:-
"32. In Banarsi v. Ram Phal [Banarsi v. Ram Phal, (2003)
9 SCC 606] , this Court dwelt upon the rights of a
respondent in an appeal under Order 41 Rule 22 of the
Code of Civil Procedure, 1908, inter alia : (SCC pp. 616-
17, paras 10-11)
"10. The CPC amendment of 1976 has not materially
or substantially altered the law except for a marginal
difference. Even under the amended Order 41 Rule 22
sub-rule (1) a party in whose favour the decree stands
in its entirety is neither entitled nor obliged to prefer
any cross-objection. However, the insertion made in
the text of sub-rule (1) makes it permissible to file a
cross-objection against a finding. The difference
which has resulted we will shortly state. A respondent
may defend himself without filing any cross-objection
to the extent to which decree is in his favour;
however, if he proposes to attack any part of the
decree, he must take cross-objection. The amendment
- 19 -
inserted by the 1976 Amendment is clarificatory and
also enabling and this may be made precise by
analysing the provision. There may be three
situations:
(i) The impugned decree is partly in favour of the
appellant and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent
though an issue has been decided against the
respondent.
(iii) The decree is entirely in favour of the respondent
and all the issues have also been answered in favour
of the respondent but there is a finding in the
judgment which goes against the respondent.
11. In the type of case (i) it was necessary for the
respondent to file an appeal or take cross-objection
against that part of the decree which is against him if
he seeks to get rid of the same though that part of the
decree which is in his favour he is entitled to support
without taking any cross-objection. The law remains
so post-amendment too. In the type of cases (ii) and
(iii) pre-amendment CPC did not entitle nor permit
the respondent to take any cross-objection as he was
not the person aggrieved by the decree. Under the
amended CPC, read in the light of the explanation,
though it is still not necessary for the respondent to
take any cross-objection laying challenge to any
finding adverse to him as the decree is entirely in his
favour and he may support the decree without cross-
objection; the amendment made in the text of sub-rule
(1), read with the Explanation newly inserted, gives
him a right to take cross-objection to a finding
recorded against him either while answering an issue
or while dealing with an issue. The advantage of
- 20 -
preferring such cross-objection is spelled out by sub-
rule (4). In spite of the original appeal having been
withdrawn or dismissed for default the cross-objection
taken to any finding by the respondent shall still be
available to be adjudicated upon on merits which
remedy was not available to the respondent under the
unamended CPC. In the pre-amendment era, the
withdrawal or dismissal for default of the original
appeal disabled the respondent to question the
correctness or otherwise of any finding recorded
against the respondent."
(emphasis supplied and in original)
This position has been reiterated in Hardevinder Singh v.
Paramjit Singh [Hardevinder Singh v. Paramjit Singh,
(2013) 9 SCC 261 : (2013) 4 SCC (Civ) 309] .
60. We have already referred to the law laid down by this
Court in regard to Order 41 Rule 22 of the Code of Civil
Procedure. In an appeal if the respondent does not want
any change in the decree of the lower court, it is not
necessary for him to file an appeal or cross-objection to
merely support the decree already passed without any
variation in the decree but by challenging the correctness
of the findings in the judgment. The appellants are correct
in contending that if a challenge is made to a decree by a
respondent then necessarily the respondent must file either
an appeal or a cross-objection. In this case however, the
suit filed by the appellants stood dismissed by the first
appellate court. The two appeals which were carried by
the appellant before the High Court were dismissed.
Resultantly, the decree of the first appellate court
dismissing the suit came to be confirmed. Before this
Court the respondents are not seeking to challenge the
decree. They do not wish any variation of the decree.
- 21 -
They seek to have the decree confirmed. They support the
decree entirely. The decree is one dismissing the suit.
They are only seeking to support the said decree by
challenging one of the findings, namely, the finding
relating to title. For doing the same, it is not necessary for
them to file an appeal or cross-objection as by having the
finding overturned in regard to title they are not seeking to
have a different decree passed in any manner. Hence, we
reject the contention of the appellants that it is not open to
the respondents to contest the finding on title without
filing cross-objection."
22. In the case of Gunamma v. Shevantibai, (2018) 15 SCC 599, the
Supreme Court relying upon the aforesaid judgment of Ravindra Kumar
Sharma (supra) observed as under :-
"11. An argument has been sought to be raised relying on
the decision of this Court in Ravinder Kumar Sharma v.
State of Assam [Ravinder Kumar Sharma v. State of
Assam, (1999) 7 SCC 435 : AIR 1999 SC 3571] to
contend that the filing of a cross-objection is an optional
course of action and not mandatory. While the same may
be correct, under Order 41 Rule 22 of the Code of Civil
Procedure, 1908, a contest can also be made to a finding
adverse to a party though the decree may be in his favour.
No contest to the findings of the learned first appellate
court was made by the present respondents in the second
appeal before the High Court. We, therefore, do not
consider it appropriate to go into the said question in the
present proceedings under Article 136 of the Constitution
of India. Even otherwise, on merits, for the reasons that
we have indicated earlier, we find no error in the aforesaid
view taken by the first appellate court."
23. In the case of Hiriya Bai (supra), the High Court has also
- 22 -
considered this aspect as to whether cross-objection is necessary to
challenge the findings of the decree or not. The Court has observed that
when decree needs to be modified then only cross-objection in writing is
necessary otherwise adverse findings can be challenged by the respondent
even without filing any cross-objection. The observation made by the High
Court is as follows:-
"10. The first question for consideration is as to whether
in absence of written cross-objection a decree holder can
verbally challenge the findings in an appeal filed by the
judgment debtor or not?
11. Under Order 41, Rule 22 of CPC reads as under:--
"22. Upon hearing, respondent may object to decree
as if he had preferred a separate appeal--
(1) Any respondent, though he may not have appealed
from any part of the decree, may not only support the
decree [but may also state that the finding against him
in the Court below in respect of any issue ought to
have been in his favour; and may also take any cross-
objection] to the decree which he could have taken by
way of appeal provided he has filed such objection in
the Appellate Court within one month from the date of
service on him or his pleader of notice of the day
fixed for hearing the appeal, or within such further
time as the Appellate Court may see fit to allow.
Explanation--A respondent aggrieved by a finding of
the Court in the judgment on which the decree
appealed against is based may, under this rule, file
cross-objection in respect of the decree insofar as it is
based on that finding, notwithstanding that by reason
of the decision of the Court on any other finding
which is sufficient for the decision of the suit, the
- 23 -
decree, is, wholly or in part, in favour of that
respondent.
(2) Form of objection and provisions applicable
thereto -- Such cross-objection shall be in the form
of a memorandum, and the provisions of rule 1, so far
as they relate to the form and contents of the
memorandum of appeal, shall apply thereto.
(4) Where, in any case in which any respondent has
under this rule filed a memorandum of objection, the
original appeal is withdrawn or is dismissed for
default, the objection so filed may nevertheless be
heard and determined after such notice to the other
parties as the Court thinks fit.
(5) The provisions relating to appeals by indigent
persons shall, so far as they can be made applicable,
apply to an objection under this rule."
12. A decree holder can assail the findings by filing
cross-objection. However if the decree granted in favour
of the decree holder is not liable to be modified even
after setting aside the findings, the filing of cross-
objection in writing is not necessary and the decree
holder can always assail the findings by verbally
challenging the same before the Appellate Court.
However, where the decree is liable to be modified, then
the cross-objection in writing is mandatory.
13. The Supreme Court in the case of Hardevinder Singh
v. Paramjit Singh and others, reported in (2013) 9 SCC
261 : (2014) 1 MP LJ (SC) 487 has held as under:--
"20. In Sahadu Gangaram Bhagade v. Collector, it
was observed that : (SCC p. 689, para 8)
"8. ... the right given to a respondent in an appeal is
to challenge the order under appeal to the extent he is
- 24 -
aggrieved by that order. The memorandum of cross-
objection is but one form of appeal. It takes the place
of a cross-appeal."
In the said decision, emphasis was laid on the term
"decree".
21. After the 1976 Amendment of Order 41, Rule 22,
the insertion made in sub-rule (1) makes it permissible
to file a cross-objection against a finding. The
difference is basically that a respondent may defend
himself without taking recourse to file a cross-
objection to the extent the decree stands in his favour,
but if he intends to assail any part of the decree, it is
obligatory on his part to file the cross-objection. In
Banarsi v. Ram Phal, it has been observed that the
amendment inserted in 1976 is clarificatory and three
situations have been adverted to therein. Category 1
deals with the impugned decree which is partly in
favour of the appellant and partly in favour of the
respondent. Dealing with such a situation, the Bench
observed that in such a case, it is necessary for the
respondent to file an appeal or take cross objection
against that part of the decree which is against him if
he seeks to get rid of the same though he is entitled to
support that part of the decree which is in his favour
without taking any cross-objection. In respect of two
other categories which deal with a decree entirely in
favour of the respondent though an issue had been
decided against him or a decree entirely in favour of
the respondent where all the issues had been answered
in his favour but there is a finding in the judgment
which goes against him, in the pre-amendment stage,
he could not take any cross-objection as he was not a
person aggrieved by the decree. But post-amendment,
read in the light of the Explanation to sub-rule (1),
- 25 -
though it is still not necessary for the respondent to
take any cross-objection laying challenge to any
finding adverse to him as the decree is entirely in his
favour, yet he may support the decree without cross-
objection. It gives him the right to take cross-
objection to a finding recorded against him either
while answering an issue or while dealing with an
issue. It is apt to note that after the amendment in the
Code, if the appeal stands withdrawn or dismissed for
default, the cross-objection taken to a finding by the
respondent would still be adjudicated upon on merits
which remedy was not available to the respondent
under the unamended Code."
14. The Supreme Court in the case of Prabhakar Gones
Prabhu Navelkar (Dead) Through Legal Representatives
v. Saradchandra Suria Prabhu Navelkar (Dead) Through
Legal Representatives, (2020) 20 SCC 465 : 2019 MP LJ
OnLine (S.C.) 177 has held as under:--
"We have already referred to the law laid down by this
Court in regard to Order 41, Rule 22 of the Code of
Civil Procedure. In an appeal if the respondent does
not want any change in the decree of the lower Court,
it is not necessary for him to file an appeal or cross-
objection to merely support the decree already passed
without any variation in the decree but by challenging
the correctness of the findings in the judgment. The
appellants are correct in contending that if a challenge
is made to a decree by a respondent then necessarily
the respondent must file either an appeal or a cross-
objection."
24. Thus in view of the aforesaid enunciation of law, it is clear that it is
the consistent view of the Supreme Court and in the case of Ravindra
Kumar Sharma (supra) that has been decided specifically on this issue,
- 26 -
very clearly provides the cross-objection after amendment of 1976 is
necessary to be filed only when decree needs to be modified but findings
can be challenged by the respondent orally without filing any cross-
objection.
25. In the present case also, it is clear that the suit filed by the
plaintiffs/appellants has been dismissed by the Court but finding with
regard to the agreement dated 27.11.1983 holding the same as valid is
being assailed by the respondents and therefore the said finding can be
assailed by the respondents even without filing the cross-objection.
According to the respondents, the suit has rightly been dismissed but
finding with regard to validity of agreement dated 27.11.1983 is liable to
be set aside. Accordingly, no modification is being sought in the impugned
judgment and decree and therefore the preliminary objection raised by
learned counsel for the appellants for not allowing the respondents to raise
the findings given by the trial Court dismissing the suit being contrary to
law and accordingly, it is rejected.
26. Now, the submission made by learned counsel for the appellants so
far as challenging the impugned judgment and decree in respect of issue
No.3 is concerned the finding given by the Court below about readiness
and willingness is perverse and is liable to be set aside and the suit ought to
have been decreed. Learned counsel for the appellants relying upon the
averments made in para-2 of the plaint in which it is mentioned that the
plaintiffs were ready and still they are ready to pay the remaining sale
consideration. He has also relied upon the statement of PW-1, who in
- 27 -
para-11 and 17 of his statement has admitted that he asked the defendant
No.1 Bani Bai for accepting the remaining amount and for getting the sale
deed executed but she refused. According to the learned counsel for the
appellants, the finding given by the Courts below in para-14 answering
issue no.3 is therefore perverse.
27. Shri Sanghi, learned counsel for the appellants in respect of
requirement of readiness and willingness relied upon a decision of this
Court in the case of Kalyan Singh and others vs. Sanjeev Singh reported
in ILR 2018 MP 1523.
"(22) It is next contended by the counsel for the
appellants that since, the plaintiff has not proved his
willingness and readiness to perform his part of contract,
and secondly, such pleading was incorporated by way of
amendment in the plaint, therefore, the Trial Court should
not have allowed the application for amendment. To
buttress his contentions, the Counsel for the appellants
has relied upon the judgment of the Supreme Court,
passed in the case of J. Samuel and others Vs. Gattu
Mahesh and others reported in (2012) 2 SCC 300. The
submission made by the Counsel for the appellants
cannot be accepted and hence, rejected. It is incorrect to
say that the pleadings regarding readiness and
willingness were incorporated by way of amendment. In
the original plaint, there was a specific pleading with
regard to readiness and willingness to perform the
contract. The plaintiff has specifically stated in his
evidence, that he was and is still ready to perform his part
of contract. The evidence with regard to readiness and
willingness was never challenged by the appellants by
cross examining Sanjeev (P.W.1). When the evidence of
- 28 -
readiness and willingness was never challenged in the
cross examination, then it was not necessary for the
plaintiff to prove anything more in this regard. It was not
necessary for the plaintiff to file proof that the remaining
amount is ready with him. Once, it is claimed that the
plaintiff is ready and willing to perform his part of
contract, and if it is not challenged by the defendants,
then it can be safely held that the plaintiff has proved his
readiness and willingness to perform his part of contract.
(23) The Supreme Court in the case of Ashar Sultana Vs.
B. Rajamani, reported in (2009) 17 SCC 27 has held as
under :-
"28. Section 16(c) of the Specific Relief Act, 1963
postulates continuous readiness and willingness on the
part of the plaintiff. It is a condition precedent for
obtaining a relief of grant of specific performance of
contract. The court, keeping in view the fact that it
exercises a discretionary jurisdiction, would be entitled to
take into consideration as to whether the suit had been
filed within a reasonable time. What would be a
reasonable time would, however, depend upon the facts
and circumstances of each case. No hard-and-fast law can
be laid down therefor. The conduct of the parties in this
behalf would also assume significance.
29. In Veerayee Ammal v. Seeni Ammal it was observed:
(SCC p.140, para 11)
"11. When, concededly, the time was not of the essence
of the contract, the appellant-plaintiff was required to
approach the court of law within a reasonable time. A
Constitution Bench of this Hon'ble Court in Chand Rani
v. Kamal Rani held that in case of sale of immovable
property there is no presumption as to time being of the
essence of the contract. Even if it is not of the essence of
- 29 -
contract, the court may infer that it is to be performed in
a reasonable time if the conditions are (i) from the
express terms of the contract; (ii) from the nature of the
property; and (iii) from the surrounding circumstances,
for example, the object of making the contract. For the
purposes of granting relief, the reasonable time has to be
ascertained from all the facts and circumstances of the
case."
It was furthermore observed: (Veerayee Ammal case,
SCC pp. 140-41, para 13)
"13. The word 'reasonable' has in law prima facie
meaning of reasonable in regard to those circumstances
of which the person concerned is called upon to act
reasonably knows or ought to know as to what was
reasonable. It may be unreasonable to give an exact
definition of the word 'reasonable'. The reason varies in
its conclusion according to idiosyncrasy of the individual
and the time and circumstances in which he thinks. The
dictionary meaning of 'reasonable time' is to be so much
time as is necessary, under the circumstances, to do
conveniently what the contract or duty requires should be
done in a particular case. In other words it means, as soon
as circumstances permit. In P. Ramanatha Aiyar's Law
Lexicon it is defined to mean:
"A reasonable time, looking at all the circumstances of
the case; a reasonable time under ordinary circumstances;
as soon as circumstances will permit; so much time as is
necessary under the circumstances, conveniently to do
what the contract requires should be done; some more
protracted space than "directly"; such length of time as
may fairly, and properly, and reasonably be allowed or
required, having regard to the nature of the act or duty
and to the attending circumstances; all these convey more
- 30 -
or less the same idea."
30. It is also a well-settled principle of law that not only
the original vendor but also a subsequent purchaser
would be entitled to raise a contention that the plaintiff
was not ready and willing to perform his part of contract.
(See: Ram Awadh v. Achhaibar Dubey, SCC p. 431 para
6.)
31. We are, however, in agreement with Mr Lalit that for
the aforementioned purpose it was not necessary that the
entire amount of consideration should be kept ready and
the plaintiff must file proof in respect thereof. It may also
be correct to contend that only because the plaintiff who
is a Muslim lady, did not examine herself and got
examined on her behalf, her husband, the same by itself
would not lead to a conclusion that she was not ready and
willing to perform her part of contract.''
28. Although, in the cross examination of PW1 Abdul Jabbar (plaintiff),
he has admitted that when he asked Bani Bai (defendant no.1) to execute
the sale deed then she said that it could be considered only after the case
filed by defendant No.2 Champa Bai is resolved. In the notice (Ex.P/2),
demand was made for executing the sale deed and stand has been taken by
the defendant that (Ex.P/1) the agreement dated 27.11.1983 was forged and
fabricated and they have also suggested about readiness and willingness
and also cross-examined on this issue.
29. It is now apt to see what are the requirements to prove the readiness
and willingness. The respective provision i.e. Section 16(c) of the Specific
Relief Act, 1963 reads as under :-
- 31 -
"16. Personal bars to relief - Specific performance of a
contract cannot be enforced in favour of a person -
(c) [who fails to prove] that he has performed or has
always been ready and willing to perform the essential
terms of the contract which are to be performed by him,
other than terms the performance of which has been
prevented or waived by the defendant.
Explanation.--For the purposes of clause (c),--
(i) where a contract involves the payment of money, it is
not essential for the plaintiff to actually tender to the
defendant or to deposit in court any money except when
so directed by the court;
(ii) the plaintiff [must prove] performance of, or
readiness and willingness to perform, the contract
according to its true construction."
30. From Ex.P/1 which is said to be an agreement executed between
plaintiffs and defendant/respondent No.1, a long span of 12 years for
executing the sale deed was given which clearly shows that the plaintiffs'
financial status was very weak and they did not have sufficient funds to
execute the sale deed and that is why they have sought and have been
granted long span of time of 12 years to collect the remaining sale
consideration of Rs. 1,00,735/-. PW1 in para-3 of his statement has
admitted this fact that their financial position was not good and therefore
they have been granted 12 years period. PW1 has also stated in his
statement that in the year 1993, only first time he approached the
defendant/responded No.1 for executing the sale deed meaning thereby
from 1983 to 1993 for a long time of 10 years they could not arrange the
money and in such a circumstance, as per the requirement of Section 16(c)
of the Specific Relief Act, 1963, it is mandatory for the plaintiffs to show
- 32 -
their financial status by filing document and other cogent evidence so as to
establish their readiness and willingness but there is nothing on record to
indicate that any such evidence was produced except oral evidence and
even at the time of recording the statement they did not produce any
documentary evidence so as to show their financial condition.
31. Shri Ravish Agrawal, learned Senior Advocate has supported the
finding given by the Court below so as to dismiss the suit on the ground
that plaintiffs failed to prove their readiness and willingness by adducing
cogent evidence. He has submitted that just to make an oral statement for
establishing the fact with regard to readiness and willingness, the conduct
of the parties is very material aspect which is required to be seen by the
Court. He submits that Ex.P/1 itself is suspicious not only on the basis of
stand taken by respondent/defendant No.2 that the Ex.P/1 dated 27.11.1983
is a forged and fabricated document prepared with an object to defeat the
agreement executed between the defendant No.1 and defendant No.2 but it
is also virtually unacceptable that for executing the specific performance of
contract period of 12 years is provided. He submits that no material was
produced by the plaintiffs to show that they could arrange the remaining
sale consideration because as per their own showing and admission, their
financial condition was very weak.
32. Shri Ravish Agrawal, learned Senior Advocate has also placed
reliance upon a decision of Supreme Court in the case of Ardeshir H.
Mama vs. Flora Sassoon reported in 1928 Privy Council 953, wherein it
has been observed as under :-
- 33 -
"The amendment of the pleadings was not really
necessary. Nor was the Defendant prejudiced by it. In an
action for damages the Plaintiff has merely to show
readiness and willingness up to the date of breach but for
specific performance he must show his readiness and
willingness to carry out the contract until the decree."
33. In the case of Pydi Ramana alias Ramulu v. Davarasety
Manmadha Rao, (2024) 7 SCC 515, the Supreme Court considered the
provision of Section 16(c) and observed as under:-
"17. As rightly pointed out by the trial court, the
respondent-plaintiff has not produced any satisfactory
evidence to prove his readiness and willingness. As
regards "willingness" of the plaintiff to perform his part
of the contract, the conduct of the plaintiff warranting the
performance has to be looked into. The following
conduct of the plaintiff warrants consideration:
(a) Plaintiff got issued legal notice nearly after two years
after the expiry of one year period as prescribed in the
agreement.
(b) Plaintiff has not brought anything on record to prove
that he contacted the defendant after the expiry of one
year period and was interested in finalising the deed.
(c) There was total inaction of the plaintiff from 6-6-1994
(expiry of one year period) to 30-5-1996 (date of
issuance of legal notice)
(d) Suit was filed on 9-6-1997 i.e. after a period of more
than one year from the date of issuing of legal notice.
Said delay has not been sufficiently explained by the
plaintiff.
18. The continuous readiness and willingness is a
condition precedent to grant the relief of specific
- 34 -
performance. [Vijay Kumar v. Om Parkash, (2019) 17
SCC 429 : (2020) 3 SCC (Civ) 480] The trial court has
rightly held that the plaintiff has not sufficiently
explained and proved that he was always ready and
willing to perform his part of the contract. As such the
High Court and the first appellate court had erred in
holding that the plaintiff had proved his readiness and
willingness."
34. Recently, the Supreme Court in the case of R. Shama Naik vs. G.
Srinivasiah in Special Leave Petition (Civil) No.13933 of 2021 with
regard to the readiness and willingness, has observed as under:-
"11. There is a fine distinction between readiness and
willingness to perform the contract. Both the ingredients
are necessary for the relief of specific performance.
12. While readiness means the capacity of the plaintiff to
perform the contract which would include his financial
position, willingness relates to the conduct of the
plaintiff.
13. The High Court in first appeal upon appreciation of
the evidence on record both oral and documentary has
arrived at the conclusion that the plaintiff has failed to
establish that he was always ready and willing to perform
his part of the contract."
35. Considering the submission made by the parties and on perusal of
respective provision of 16(c) of the Act, 1963, I am also of the opinion that
the finding given by the Court below in para-14 of the impugned judgment
in regard to issue no.3 does not call for any interference because the same
is a reasoned one and based upon well appreciation of facts and since, in
- 35 -
any manner, it cannot be considered to be perverse, the same is not
required to be disturbed. I am also of the opinion that prima facie the
agreement giving 12 years for performance of contract is itself creating
doubt and even otherwise, there is no material showing that the plaintiffs'
readiness and willingness was continuous. No documentary evidence was
produced before the Court so as to substantiate that aspect especially under
the circumstances when they themselves have admitted their financial
condition and for seeking decree of specific performance of contract they
have to comply with this requirement by adducing not only oral but also
the documentary evidence. However, they failed to do so and therefore,
the finding in respect of issue no.3 is not required to be called for.
36. Now, this Court has to consider whether the finding with respect to
the agreement (Ex.P/1) dated 27.11.1983 is proper or not because learned
counsel for the respondent is challenging the said finding by making
submission that the agreement produced before the trial Court dated
27.11.1983 (Ex.P/1), in the existing circumstances, is itself suspicious and
finding with regard to its validity is unreasonable, unjustified and also
perverse and therefore, that finding is liable to be set aside.
37. Shri Ravish Agrawal, learned Senior Counsel appearing for the
respondent has submitted that even without filing the cross-objection under
Order 41 Rule 22 of CPC, he can assail the said finding because ultimately
if the said finding is disturbed or reversed that would not affect the nature
of impugned decree and would also not modify or reverse the impugned
decree. Shri Ravish Agrawal has further submitted that the Court has not
- 36 -
properly appreciated that the period of agreement, that too of 12 years,
itself creates doubt because giving such a long period for performing the
sale in a normal course is not acceptable and is beyond imagination. He
has further submitted that there are two sets of plaintiffs in the plaint. One
set of plaintiffs is having larger area of the suit land and second set of
plaintiffs is occupying a very small portion of the said land but neither in
the agreement nor in the pleadings or any evidence adduced, it has been
specified what share actually they have given to the Bani Bai
defendant/respondent No.1 said to be the owner of the land whereas in the
statement of Abdul Majid (PW-4), he has stated that he and Jabbar both has
paid Rs.30,000/- each, total Rs.60,000/- to Bani Bai as advance payment.
Shri Agrawal has submitted that this statement itself creates doubt. When
there is vast difference in their shares then as to how they were paying
equal amount because agreement did not contain as to what payment had to
be made by one set plaintiff having small share over the suit and another
having larger share in the suit land. I find substance in his submission for
the reason when there is vast difference in the shares over the suit land,
parties cannot make equal payment and therefore, this situation makes the
Ex.P/1 suspicious. According to him it is also pertinent to mention that in
the statement of plaintiffs' witnesses they have disclosed the fact that
respondent/defendant No.2 Champa Bai filed a suit against
respondent/defendant No.1 Bani Bai for execution of sale deed pursuant to
the agreement executed between them on 25.12.1983. When agreement of
the plaintiffs was prior to the date of agreement executed by
respondent/defendant No.1 Bani Bai with Champa Bai for the same land,
in a pending litigation, they should have raised an objection and moved an
- 37 -
application for impleading them as a party or to file a suit challenging that
the agreement dated 25.12.1983 was invalid in pursuance to their prior
agreement dated 27.11.1983 but that was also not done and this itself
creates doubt and certify the stand taken by the respondent that the
agreement dated 27.11.1983 is a fabricated document executed in collusion
between plaintiffs and respondent No.1 Bani Bai so as to make the
subsequent agreement dated 25.11.1983 for which Champa Bai paid an
amount to purchase the suit land, redundant.
38. As per the statement of Abdul Jabbar (PW-1), in para-5, he himself
has admitted that when he approached Bani Bai for execution of sale deed
then she apprised that Champa Bai has also filed a suit and after decision
of the same, it would be seen whether sale deed had do be executed or not
meaning thereby before filing the suit, he was aware about the fact that
Champa Bai has also filed a suit against Bani Bai in respect of the suit
land. In para-9 of his statement, on a suggestion made, he has denied any
such agreement of Bani Bai and Champa Bai with regard to the suit land
and he has also filed the judgment dated 15.01.1997 (Ex.P/11) which was
passed in a Civil Suit filed by Champa Bai against Bani Bai.
39. Further, the statement of Bashir Mohammad (PW-2), the Arji
Naveesh has admitted in his statement that agreement dated 27.11.1983
(Ex.P/1) does not contain any seal and even he has not made any entry in
his Register. He has also admitted this fact that document must contain his
seal but on Ex.P/1 there is no such seal meaning thereby the mandatory
requirement to execute an agreement or to get it notified is not followed
- 38 -
which also creates suspicion and as such finding given by the Court below
in respect of issue no.1 is not liable to be sustained as it is not a reasoned
one and has been arrived at without proper appreciation of evidence and
therefore, in my opinion, it deserves to be set aside and accordingly, it is
set aside holding that the agreement (Ex.P/1) was not a valid agreement
and in-fact it has not been executed on a given date but prepared and
fabricated by the parties with some ill-intention.
40. The defendant witness i.e. DW-1 namely Laxmi Narayan Soni has
very categorically stated that he could identify the signature of Bani Bai
and has clearly stated that Ex.P/1 did not contain her signature. Even, in
the said circumstance, plaintiffs did not call for any expert opinion about
the signature of Bani Bai. Likewise, DW-2 namely Sanjeev Singh Thakur
has stated that Bani Bai was his grandmother and he could identify the
signature of Bani Bai and very categorically stated that in Ex.P/1 signature
of Bani Bai from A to A is not the signature of his grandmother Bani Bai.
Even otherwise, plaintiffs did not call any expert opinion about the
signature and also did not file any material document so as to compare the
signature of Bani Bai where there was a clear doubt raised by the
defendants on her signature.
41. In view of the aforesaid facts and circumstances, I am of the opinion
that this Court is not required to disturb the impugned judgment and
decree, although, the finding with regard to issue no.1 about Ex.P/1 is not
sustainable, therefore, it is set aside saying that Ex.P/1 is not a genuine
agreement and therefore, it is invalid.
- 39 -
42. Ex-consequentia, in view of the aforesaid facts and circumstances of
the case, the appeal fails and is hereby dismissed. However, impugned
judgment is modified in respect of finding on issue no.1 that has been
given in regard to agreement dated 27.11.1983 (Ex.P/1) and it is answered
that no such agreement was executed on 27.11.1983.
Appeal dismissed.
(SANJAY DWIVEDI)
JUDGE
PK
PARITOSH Digitally signed by PARITOSH KUMAR
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF
MADHYA PRADESH,
2.5.4.20=43c946b45c8a66c03b68676e788802a41cc03b5b9567caf9c2c3b98
KUMAR
1b8cb6596, postalCode=482001, st=Madhya Pradesh,
serialNumber=678DC301994B496012A9643D92E6C6335F11A93DA54F2DFB
6E44B8B7A45044FC, cn=PARITOSH KUMAR
Date: 2025.06.19 18:39:08 +05'30'
