[Cites 7, Cited by 0]
Madhya Pradesh High Court
Roadmal vs Aatmaram And Anr. on 12 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:894
1 FA-608-2012
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ALOK AWASTHI
FIRST APPEAL No. 608 of 2012
ROADMAL
Versus
AATMARAM AND ANR.
Appearance:
Shri Roadmal - Appellant present in person.
Shri Yashpal Rathore, Advocate for the respondents.
Heard on: 29.10.2025
Delivered on: 12.01.2026
JUDGMENT
This First Appeal under Section 96 of the Code of Civil Procedure,
1908, has been preferred by the appellant (one of the legal heirs of the
original defendant No. 1, Late Sunderbai) being aggrieved by the judgment
and decree dated 30.01.2009 passed by the First Additional District Judge,
Shajapur, in Civil Suit No. 13-A/2001, whereby the suit for specific
performance of contract filed by the respondent/plaintiff (Atmaram) has been
decreed in his favour, directing the Legal heirs of deceased Sunderbai to
execute a registered sale deed in respect of the disputed property upon
receipt of the remaining sale consideration of Rs. 35,000/- within three
months, failing which the plaintiff/respondent (Atmaram) would be entitled
to get it executed through the Court.
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1. Brief facts leading to this appeal are as under:
(a) The respondent/plaintiff (Atmaram) instituted Civil Suit No. 13-
A/2001 on 11.05.2001 before the trial Court for specific performance of an
alleged agreement to sell dated 07.06.2001, executed by the original
defendant No. 1 (Late Sundarbai, mother of the appellants) in respect of
agricultural land bearing Survey Nos. 362 (0.13 acres), 366 (0.02 acres), total
0.32 acres, along with a house and open ruins situated in Village Lal Khedi
Gurjar, Tehsil Shajapur, for a total consideration of Rs. 1,00,000/-. It was
alleged that Rs. 65,000/- was paid as earnest money, possession was handed
over, and the sale deed was to be executed on or before 09.03.2001 (around
the full moon day of Holi in 2001) upon payment of the balance Rs. 35,000/-
. The plaintiff claimed he was ready and willing to perform his part, but the
defendant evaded, leading to issuance of a notice on 22.03.2001 and filing of
the suit.
(b) Summons were issued to the original defendant, but returned
unserved. The trial Court held service effective and proceeded ex parte,
granting an ex parte temporary injunction under Order 39 CPC on
19.05.2001 and ultimately decreeing the suit ex parte on 31.07.2001.
(c) The original defendant filed an application under Order 9 Rule 13
CPC read with Section 5 of the Limitation Act, 1963, in MJC No. 61/2002,
citing her advanced age (over 75 years) and illness as sufficient cause for
non-appearance and delay. The said application was rejected by the trial
Court on 05.04.2003.
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(d) Aggrieved by the rejection, the original defendant (Sundarbai)
preferred a Miscellaneous Appeal before this Court, along with an
application for condonation of delay. Vide order dated 03.12.2007 the delay
was condoned, and the ex parte order and decree dated 31.07.2001 was set
aside, subject to payment of costs of Rs. 5,000/- to the plaintiff.
(e) Thereafter, the original defendant (Sunderbai) filed a
Miscellaneous Civil Application (MCC) seeking extension of time to deposit
the costs, which was allowed by this Court vide order dated 23.04.2008.
(f) Thereafter, the suit proceeded on merits in the trial Court. During
the pendency of the proceedings (stemming from the Miscellaneous appeal
in this Court), the original defendant Sunderbai passed away, and her heirs
(the present appellants) were brought on record. By order dated 25.09.2008,
the heirs were also substituted in the plaint in the trial Court. Only appellant
Rodmal appeared and filed a reply, while other heirs remained ex parte.
(g) In his reply dated 05.06.2008, appellant Rodmal denied the
plaintiff's readiness and willingness, alleging that the plaintiff failed to tender
the balance amount by the stipulated date (full moon day of Holi, 2001),
leading to automatic cancellation of the agreement. It was further averred
that the plaintiff's claim in para 5 of the plaint (that he approached the
defendant before the deadline) was fabricated; instead, the defendant
(Sunderbai) waited until 9 PM on 10.03.2001 and then sent a notice forfeiting
the earnest money, with photocopies of the notice and speed post receipt
submitted. The appellant also challenged the credibility of the
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respondent/plaintiff's witnesses, Atmaram (plaintiff himself) and Ambaram.
(h) On 25.09.2008, appellant Rodmal filed an affidavit before the trial
Court. On 24.01.2009, the statements of Atmaram (PW-3) and Ambaram
(PW-1) were recorded and subjected to cross-examination. Dissatisfied with
the process, the appellant filed an application on 27.01.2009 requesting the
case be heard afresh as a new case, which the trial Court treated as written
arguments and proceeded to pass the impugned judgment on 30.01.2009,
decreeing the suit.
(i) During cross-examination, inconsistencies were highlighted:
Atmaram admitted sending a notice only after receiving one from the
appellant/defendant, and failed to recall the correct address of Sunderbai's
residence, suggesting he never visited before the deadline. Ambaram gave
speculative testimony and denied being called by the Superintendent of
Police regarding an unrelated theft allegation, which the appellant supported
with an application dated 01.06.2009 to the SP, Shajapur, and Secretary,
Home Department, MP, marked for action and submitted on 04.06.2009.
(j) The respondent/plaintiff replied to the appellant's notice, denying
the theft allegations, claiming it was fabricated to pressure the witness
Ambaram (who testified in another case between the parties), and threatening
legal action for defamation.
(k) The trial Court framed issues on the respondent/plaintiff's readiness
and willingness, automatic cancellation of the contract, entitlement to
specific performance, and relief. Relying on the respondent/plaintiff's
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evidence and holding the contract not cancelled, it decreed the suit, directing
execution of the sale deed.
2. Appellant aruged that the trial Court erred in holding the
respondent/plaintiff was ready and willing, as he failed to approach the
appellant/defendant by the stipulated date, leading to automatic cancellation
and forfeiture of earnest money. The respondent/plaintiff's notice was sent
only after receiving the appellant/defendant's notice, as admitted in cross-
examination, indicating post-facto fabrication to save the claim. The
testimony of Ambaram (P.W.1) is false and speculative; he denied the theft
but the appellant's application to authorities proves otherwise, affecting
credibility. No separate summon was issued initially, and service was
improper, as the process server was accompanied by the respondent/plaintiff,
tainting the process. The trial Court ignored the defendant's advanced age and
illness in the initial proceedings and hastily decreed the suit without
appreciating the evidence post-substitution of heirs and after the conditional
set-aside of the ex parte decree. The impugned judgment is perverse, as it
overlooks cross-examination revelations, such as Atmaram's ignorance of the
defendant's address, disproving his visit claim.
3. Per contra, learned counsel for the respondent/plaintiff supported the
impugned judgment, arguing that the agreement is admitted, possession was
handed over, and the plaintiff proved readiness via notices and witnesses.
Earnest money of Rs. 65,000/- was paid, and possession was handed over to
the respondent/plaintiff. The defendant's evasion in transferring Survey No.
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366 from Mangilal's name justified the delay. The contract did not
automatically cancel, as the respondent/plaintiff approached before and after
the deadline, as corroborated by witnesses. The theft allegations against
Ambaram are extraneous and meant to discredit a valid witness. The decree
is equitable and in line with Section 16(c) of the Specific Relief Act, 1963,
especially after the ex parte decree was set aside conditionally and the matter
proceeded on merits.
4. Having heard the parties this Court has carefully re-appreciated the
entire evidence on record.
5. Admissions in Written Statement It is not in dispute that in the
written statement filed by appellant Rodmal (representing all heirs), the
execution of the agreement to sell dated 07.06.2000 , receipt of Rs. 65,000/-
as earnest money/part consideration, and delivery of physical possession to
the plaintiff at the time of agreement have been admitted without any
reservation. Order XII Rule 6 of the CPC allows the court to pass a judgment
immediately "on admission." It states that where an admission of fact has
been made either in the pleading or otherwise, the court may, at any stage of
the suit, without waiting for the determination of any other question between
the parties, make such order or give such judgment as it thinks fit, having
regard to such admissions.
6. Estoppel by Pleading:- The term "estoppels of the Act" likely refers
to the binding nature of the pleadings. A party is generally bound by the
formal admissions made in their written statement. These admissions of fact
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are taken as conclusive for the purpose of the suit and relieve the other party
of the burden of proving those specific facts.
7. Section 114 , deals with the court's power to presume the existence of
certain facts. This section provides a discretionary power to the court.
Section 114 of the Indian Evidence Act, 1872, allows courts to
presume the existence of facts likely to have happened, considering
natural events, human conduct, and business practices in the specific
case, giving judges power to draw logical inferences from available
evidence, such as presuming a person in possession of stolen goods
soon after theft is the thief or that judicial acts were performed
regularly. It's a discretionary power, not a mandatory rule, enabling
courts to fill gaps in evidence by making reasonable assumptions
unless proven otherwise, with illustrations covering possession of
stolen goods, accomplice testimony, consideration for bills of
exchange, continuity of things, and official acts. It is apposite to
reproduce Section 114 of the Evidence Act 1872 here under:
"Section 114 The Court may presume the existence of
any fact which it thinks likely to have happened, regard
being had to the common course of natural events, human
conduct and public and private business, in their relation
to the facts of the particular case."
8. As held by the Supreme Court in a catena of decisions Basavantappa
v. Gangappa, (1994) 4 SCC 240 ; Nagindas Ramdas v. Dalpatram Ichharam,
AIR 1974 SC 193; and others, such formal admissions are the best evidence
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and are binding on the party making them. They dispense with the necessity
of proof of those admitted facts and relieve the opposite party of the burden
of proving the same. Thus, the existence, validity and material terms of the
contract stand conclusively established.
9. Readiness and Willingness - Section 16(c) Even though the plaintiff
is required to prove readiness and willingness from the date of agreement till
decree, the standard of proof is not that of strict mathematical precision. The
Court has to see the overall conduct of the plaintiff. In the present case:
1. Plaintiff has been in continuous possession of the entire property since
June 2000 (admitted fact);
2. He issued legal notice within less than three weeks of the stipulated
date (on 22.03.2001);
3. Suit was filed immediately thereafter (11.05.2001);
4. No material has been placed on record by the defendants to show that
plaintiff was financially incapable of paying the balance Rs.35,000/-;
5. The so-called forfeiture notice dated 10.03.2001 alleged to have been
sent by Late Sundarbai was never proved by producing original notice
or postal receipt in evidence during trial;
6. The alleged inconsistencies in cross-examination (regarding address
etc.) are minor and do not go to the root of the matter when viewed in
the background of admitted possession and prompt action by plaintiff.
In such circumstances, the plaintiff has sufficiently discharged the burden
of proving readiness and willingness. The trial Court rightly appreciated
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this aspect.
10. Discretionary Power - Specific Performance Specific performance
of contract for sale of immovable property is the rule and refusal is the
exception, especially when the plaintiff has been in possession for more than
two decades and has paid substantial part of the consideration. No hardship
or inequity has been pleaded or proved by the defendants which would
justify refusal of the relief. The trial Court has exercised its discretion
judicially and in accordance with law.
11. Other Contentions The contentions regarding improper service in
the initial phase have become academic after the ex-parte decree was set
aside and the matter was heard afresh on merits. The allegations of
fabrication/theft against witness Ambaram remain unsubstantiated and do not
affect the credibility of the plaintiff's case.
12.Conclusion: In view of the foregoing discussion, this Court finds no
perversity, illegality or jurisdictional error in the impugned judgment and
decree dated 30.01.2009 passed by the learned Ist Additional District Judge,
Shajapur. The appeal is devoid of merit and is accordingly dismissed.
No order as to costs.
(ALOK AWASTHI)
JUDGE
sumathi
