Madras High Court
Vijay Anand vs Kamala on 4 January, 2024
2024:MHC:5681
S.A.No.39 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30.11.2023
PRONOUNCED ON : 04.01.2024
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.39 of 2017
and
C.M.P.No.638 of 2017
and C.M.P.No.5625 of 2023
Vijay Anand ... Appellant
Vs
Kamala ... Defendant
Prayer in S.A.No.39 of 2017:- Second Appeal is filed under Section 100 of
Civil Procedure Code, praying to set aside the judgement and the decree
dated 29.10.2015 in A.S.No.43 of 2015 on the file of the Third Additional
District Court, Salem, confirming the judgement and the decree dated
07.03.2014 in O.S.No.332 of 2012 before the First Additional Sub Court,
Salem.
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S.A.No.39 of 2017
Prayer in C.M.P.No.5625 of 2023:- Civil Miscellaneous Petition is filed
under Order 41 Rule 27 of Civil Procedure Code, praying to receive the
documents listed in the petition hereto as additional evidence in the above
second appeal.
List of Documents
Sl.No. Date Description Remarks
Registered Sale agreement executed
1 20.02.2008 Original
among Kamala, Saradha and Vijay Anand
Petition and orders in R.E.P.No.105 of
2 2008 in O.S.No.392 of 1997 on the file of Certified copy
the Additional District Munsif, Salem
3 15.04.2011 Possession delivery receipt Certified copy
For Appellant : Mrs.Hema Sampath
Senior Advocate
for M/s.R.Meenal
For Respondent : Mr.V.Raghavachari
Senior Advocate
for M/s.S.Srinivasan Narayanan
JUDGMENT
The unsuccessful plaintiff in a suit for specific performance is the
appellant. The suit as well as first appeal filed by him were dismissed.
Hence, he is before this Court.
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Plaint Averments:-
2 (i) It is the case of the appellant/plaintiff that he entered into a Suit
Sale Agreement with respondent and her sister-Saradha on 13.02.2008. The
agreed sale consideration was Rs.13,750/- per cent. The extent of the
property agreed to be conveyed under the agreement was 80 and 1/2 cents.
Thus, the total agreed sale consideration would be Rs.11,06,875/-. On the
date of agreement itself, the appellant paid a sum of Rs.3,25,000/- to the
respondent and said Saradha. The balance sale consideration was agreed to
be paid within a period of six months. It was averred by the appellant that
though time was specified in the Suit Sale Agreement, it was not treated as
essence of contract. At the time of agreement, the agreement vendors were
not in physical possession of the suit property and execution petition filed
by him for taking delivery of the agreement mentioned property was
pending. Therefore, it was specifically recited in the agreement that time
shall stand extended till possession was taken.
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2 (ii) It was further averred by the appellant that the respondent and
her sister had received a further sum of Rs.50,000/- and Rs.25,000/- on later
dates and made endorsement in the Suit Sale Agreement. It was also claimed
that the respondent herself received a sum of Rs.10,000/- on 30.04.2008,
Rs.30,000/- on 17.09.2008, Rs.20,000/- on 30.03.2009, again Rs.20,000/-
on 17.11.2009, Rs.5,000/- on 16.02.2010, Rs.10,000/- on 26.04.2010,
Rs.15,000/- on 26.06.2010, Rs.10,000/- on 09.10.2010, Rs.21,000/- on
27.01.2011 and Rs.50,000/- on 18.04.2011 from the appellant/plaintiff and
made endorsements on the Suit Sale Agreement. Thus, the respondent alone
had received a further sum of Rs.1,91,000/- under the endorsements referred
above. It was claimed by the appellant that in the initial advance amount
paid on the date of agreement and the further amounts paid based on joint
endorsement of respondent and her sister, the respondent's half share would
be Rs.2,15,000/- and she herself received a sum of Rs.1,91,000/- on various
subsequent dates under the endorsements. Therefore, totally the respondent
received a sum of Rs.4,06,000/- from the appellant.
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2 (iii) It was also contended that the respondent and her sister Saradha
had taken possession of the agreement mentioned property through Court
during April-2011. Thereafter, the respondent's sister Saradha executed a
Sale Deed after receiving balance of sale price as per the Suit Sale
Agreement. However, the defendant postponed the execution of the Sale
Deed as per the agreement under some pretext or other. In these
circumstances, on 11.04.2012, the respondent issued a legal notice with
false allegations. Immediately, the appellant issued a reply notice on
23.04.2012 calling upon the respondent to be present before the Sub
Registrar's Office, Suramangalam on 04.05.2012 for receiving balance sale
price and execution of regular Sale Deed. Though the appellant was waiting
in Sub Registrar's Office on 04.05.2012, the respondent failed to appear
before the Sub Registrar's Office, Suramangalam. Hence, the appellant on
the very same day, issued a telegram to the respondent stating the above
mentioned facts. Since the respondent evaded performance of her part of the
contract, the appellant had no other option except to approach the Court for
specific performance.
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2 (iv) The appellant also claimed that out of total consideration of
Rs.11,06,875/-, the respondent's share would be Rs.5,53,437.50/- (Rounded
to Rs.5,53,450/-). The respondent already received a sum of Rs.4,06,000/-
and hence, the appellant was liable to pay only a sum of Rs.1,47,450/- and
he was ready and willing to pay the balance sale consideration and get the
sale deed executed. On these pleadings, the appellant sought for specific
performance of the agreement dated 13.02.2008.
Averments found in the Written Statement of the
Respondent/Defendant:-
3 (i) The respondent filed a written statement and averred that
subsequent to Suit Sale Agreement dated 13.02.2008, the appellant,
respondent and Saradha entered into registered Sale Agreement on
20.02.2008 on new terms mentioned thereon. Since the parties entered into a
subsequent registered Sale Agreement, the new agreement substituted the
old one by Principles of Novation. Therefore, the suit filed by the appellant
based on old agreement, which was substituted by a new registered Sale
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Agreement was not at all maintainable and barred under Section 62 of the
Contract Act, 1872.
3 (ii) It was further contended by the respondent that as per the
registered Sale Agreement between the parties dated 20.02.2008, the time
stipulated for performance was six months and the said period expired on
20.08.2008. Therefore, the limitation for filing the suit expired on
20.08.2011 and in such circumstances, the present suit filed by appellant on
04.06.2012 was barred by limitation. It was also averred by the respondent
that plaintiff had not come to the Court with clean hands and hence, the
discretionary relief of specific performance could not be granted in his
favour.
Evidence Before the Trial Court:-
4. Before the Trial Court, the appellant was examined as PW.1 and 15
documents were marked on his side as Exs.A1 to A15. On behalf of the
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respondent, she was examined as DW.1 and 3 documents were marked on
behalf of the respondent as Exs.B1 to B3.
Findings of the Trial Court:-
5. The Trial Court on appreciation of oral and documentary evidence
available on record, came to the conclusion that as parties entered into a
new registered agreement subsequent to the Suit Agreement, the present suit
was barred by Principles of Novation. The Trial Court also rendered a
finding that appellant did not approach the Court with clean hands, as he
failed to mention about the existence of new registered agreement. In view
of the same, the Trial Court refused to grant specific performance and
dismissed the suit. Aggrieved by the same, the appellant preferred an appeal
in A.S.No.43 of 2015 on the file of III Additional District Judge, Salem. The
First Appellate Court also concurred with the findings of the Trial Court that
suit was barred by Pinciples of Novation. The First Appellate Court also
found that the suit was filed beyond the period of three years from date
fixed for performance and hence, the same is barred by limitation. The First
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Appellate Court also rendered a finding that the appellant failed to prove his
readiness and willingness and hence, he was not entitled to equitable relief
of specific performance. Therefore, the appeal filed by appellant was
dismissed by the First Appellate Court. Aggrieved by the same, the
appellant is before this Court.
Substantial Questions of Law Framed:-
6. At the time of admission, this Court formulated the following two
substantial questions of laws by order dated 23.01.2017:-
“1. Whether in law the Courts are right in holding that
the suit was barred by limitation when the respondent had
received portions of the sale consideration, the last of which
was on 18.04.2011 and the suit was filed on 04.06.2012?
2. Whether in law the Courts below were right in holding
that there was novation of contract and that the suit filed on
Ex.A.1 agreement was bad when the necessary ingredients set
out in Sec.62 of the Indian Contracts Act were not satisfied?”
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7. Heard the arguments of Mrs.Hema Sampath, learned Senior
Counsel for appellant and Mr.V.Raghavachari, learned Senior Counsel for
respondent. The typed set and other records perused along with petition to
raise additional evidence.
Submissions of the Learned Senior Counsel appearing for the
Appellant/Plaintiff:-
8. Mrs.Hema Sampath, learned Senior Counsel appearing for the
appellant submitted that the readiness and willingness on the part of the
appellant was not at all denied in the written statement inspite of specific
pleading in the plaint explaining the readiness and willingness of the
appellant and therefore, in the light of the evidence let in by the appellant,
the First Appellate Court ought not to have rendered a finding that appellant
failed to prove his readiness and willingness. The learned Senior Counsel
further submitted that respondent even in her proof affidavit admitted that
appellant helped her in pursuing execution proceedings and taking delivery.
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The respondent had taken delivery of the property through Court only
during April-2011 and thereafter, turned around and refused to execute Sale
Agreement. In these circumstances, the readiness and willingness on the
part of the appellant is properly proved. The learned Senior Counsel further
submitted that in view of the specific recital in the agreement that time
could be extended till taking of possession by the respondent through Court,
the limitation for filing specific performance suit would start only from
April-2011 not from the expiry of six months period mentioned in the
agreement. The learned Senior Counsel further submitted that the xerox
copy of Ex.A1, Suit Sale Agreement was marked through cross examination
of PW.1 as Ex.B2. In Ex.B2-Sale Agreement, an additional page No.5 was
inserted by the respondent as if, it was part of Ex.A1-Suit Sale Agreement.
The learned Senior Counsel by taking this Court to the documents filed
along with petition to raise additional evidence in C.M.P.No.5625 of 2023
submitted that the 5th page inserted in Ex.B2 is a page xeroxed from original
registered Sale Agreement entered between the parties on 20.02.2008. The
learned Senior Counsel further submitted that while marking xerox copy of
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Suit Sale Agreement, the same was manipulated by the respondent by
inserting a page copied from registered agreement dated 20.02.2008 and the
same was not noted by the appellant at the time of cross examination. The
learned Senior Counsel further submitted that regarding the availability of
5th page in Ex.B2, the respondent's counsel did not cross examine the
appellant/plaintiff and hence, the 5th page was not at all brought to notice of
the appellant, when he was in witness box. The learned Senior Counsel also
submitted that the manipulation by the respondent came to appellant's
knowledge only when it was informed by his counsel in second appeal that
5th page was not part of original Suit Sale Agreement, but it was a sheet
taken from Ex.B1. Hence, as per the advice tendered to the appellant, an
application has been filed to receive three additional documents namely (a)
registered Sale Agreement executed between the parties dated 20.02.2008,
(b) the petition and orders in R.E.P.No.105 of 2008 and (c) delivery of
possession receipt dated 15.04.2011. The learned Senior Counsel further
submitted that additional documents sought to be produced by the appellant
are all vital documents to prove the manipulation by the respondent and
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hence, the civil miscellaneous petition shall be allowed. In support of her
contention, the learned Senior Counsel relied on the following judgements:-
(i) A.V.Papayya Sastry vs. Govt. of A.P., reported in (2007) 4 SCC 221.
(ii) Ram Chandra Singh vs. Savitri Devi reported in (2003) 8 SCC 319.
(iii) Sekar vs. Arthanari (judgement of this Court in Review Application
No.33 of 2010 dated 17.08.2022)
(iv) Zarina Siddiqui vs. A.Ramalingam reported in (2015) 1 SCC 705.
(v) Lata Constructions and others vs. Dr.Rameshchandra Ramaniklal
Shah reported in (2001) 1 SCC 586.
(vi) Godan Namboothiripad vs. Kerala Financial Corporation,
Vellayambalam and others reported in 1997 SCC Ker 140 : AIR
1998 Ker 31.
(vii) Union of India vs. Ibrahim Uddin and another reported in (2012) 8
SCC 148.
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Submissions of the Learned Senior Counsel appearing for the
Respondent/Defendant:-
9. Mr.V.Raghavachari, learned Senior Counsel appearing for the
respondent submitted that the subsequent registered Sale Agreement entered
into between the parties was suppressed by the appellant in her plaint
pleadings and therefore, the appellant has not approached the Court with
clean hands. In such circumstances, the appellant is not entitled to
discretionary relief of specific performance. The learned Senior Counsel
also submitted that the other party to agreement namely Saradha executed a
Sale Deed in pursuance of the registered Sale Agreement entered between
the parties and the same had been marked as Ex.B3. The learned Senior
Counsel further submitted that if the Suit Sale Agreement was not
superseded by registered Sale Agreement absolutely there was no necessity
for Saradha to execute a Sale Deed in pursuance of registered Sale
Agreement between the parties without referring the Suit Sale Agreement.
Therefore, the learned Senior Counsel submitted that Suit Sale Agreement
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was superseded by subsequent registered Sale Agreement between the
parties and hence, the Courts below are justified in dismissing the suit on
the Principle of Novation of contract. The learned Senior Counsel further
submitted that as per the terms of contract, the period fixed for performance
was six months and the suit has been filed beyond the period of three years
from the date of expiry of the period fixed for performance and hence, both
the Courts below rightly held the suit was barred by limitation.
Discussion on First Question of Law:-
10. As per the terms of Suit Sale Agreement, the time fixed for
performance was six months. However, there is a recital in the Suit Sale
Agreement that at the time of entering into agreement, the agreement
vendors namely respondent and Saradha were not in physical possession of
agreement mentioned property and time for performance could be extended
till agreement vendors take possession through Court. It is seen from the
plaint averment which was not controverted in the written statement that the
agreement mentioned property was taken possession by respondent through
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Court only during April-2011. Therefore, the time for performance could be
extended till April-2011 as per the recital found in the agreement. In such
case, the suit has been filed on 04.06.2012 well within three years from the
date of expiry of time prescribed for performance of agreement under the
recitals therein. Hence, the findings rendered by the Courts below as if, the
suit was barred by limitation is liable to be set aside and the question of law
is answered accordingly in favour of the appellant and against the
respondent.
Discussion on Second Question of Law:-
11. The appellant herein filed a suit for specific performance of the
unregistered Sale Agreement dated 13.02.2008. However, the same was
resisted by the respondent by contending that subsequent to unregistered
Sale Agreement dated 13.02.2008, there was a registered Sale Agreement
between the parties on 20.02.20008 regarding the very same property on
different terms. Therefore, the subsequent registered Sale Agreement
superseded to the earlier one and consequently, as per the principles of
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novation of contract, the earlier agreement/suit agreement cannot be
specifically performed. The appellant, who seeks specific performance of
the agreement, not even referred to the subsequent registered Sale
Agreement between the parties on different terms.
12. It is settled law the relief of specific performance is a
discretionary one and guided by equity. Therefore, the person, who seeks
equitable remedy of specific performance must come to the Court with clean
hands by putting forth all real facts. The appellant herein suppressed the 2 nd
registered agreement between the parties. In this regard, it would be
appropriate to refer to the decision of the Hon'ble Apex Court in Zarina
Siddiqui vs. A.Ramalingam reported in (2015) 1 SCC 705, the relevant
observation of the Hon'ble Apex Court reads as follows:-
“33. The equitable discretion to grant or not to grant a
relief for specific performance also depends upon the conduct
of the parties. The necessary ingredient has to be proved and
established by the plaintiff so that discretion would be
exercised judiciously in favour of the plaintiff. At the same
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time, if the defendant does not come with clean hands and
suppresses material facts and evidence and misleads the court
then such discretion should not be exercised by refusing to
grant specific performance.
34. In the instant case, as noticed above, although
Defendant 2 held a registered power of attorney on behalf of
Defendant 1 to sell and dispose of the property, but the
defendants not only made a false statement on affidavit that the
power of attorney had authorized the second defendant only to
look after and manage the property but also withheld the said
power of attorney from the Court in order to misguide the
Court from truth of the facts. Further, by registered agreement
the defendants agreed to sell the suit premises after receiving
advance consideration but they denied the existence of the
agreement in their pleading. Such conduct of the defendants in
our opinion, disentitles them to ask the court for exercising
discretion in their favour by refusing to grant a decree for
specific performance. Further, if a party to a lis does not
disclose all material facts truly and fairly but states them in
distorted manner and misleads the court, the court has
inherent power to exercise its discretionary jurisdiction in
order to prevent abuse of the process of law.”
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13. Though the above said case law was cited by the learned Senior
Counsel for the appellant to contend that the discretion has to be exercised
against the respondent, who introduced a manipulated document under
Ex.B2 and attempted to mislead the Court, the observation made by the
Hon'ble Apex Court with regard to the conduct of the party and duty of the
litigant to disclose all material facts truly and fairly is equally applicable to
the appellant/plaintiff also. In fact, the appellant being a plaintiff in a suit
for specific performance has more duty and obligation to disclose true facts
in his averments and he cannot take advantage of questionable conduct on
the part of the defendant, if any. In the case on hand, the appellant, who
suppressed the 2nd registered agreement between the parties. The 2nd
agreement is between the very same parties in respect of very same subject
matter only the terms of the agreement varies with each and other. Under
Ex.A1, unregistered Suit Sale Agreement, the agreed sale consideration was
Rs.11,06,875/- at the rate of Rs.13,750/- per cent. Under Ex.B1-registered
Sale Agreement dated 20.02.2008, the agreed sale consideration was
Rs.1,77,100/-. The time fixed for performance in both the contracts were six
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months. Under the earlier Suit Sale Agreement, a sum of Rs.3,25,000/- was
paid as advance and under the subsequent registered agreement, a sum of
Rs.50,000/- said to have been paid. Therefore, the point of different between
these two agreements lies only in sale consideration and the advance
amount paid. The two agreements are not inconsistent with each other.
Therefore, we can safely come to the conclusion that subsequent to the Suit
Sale Agreement, parties entered into a fresh registered agreement by
substituting the original terms with regard to the sale consideration. The
learned Senior Counsel for the appellant by taking this Court to the oral
testimony of PW.1 tried to submit that 2nd registered Sale Agreement was
entered into just to create an encumbrance in the property so as to prevent
one Rajendran from encumbering the property. However, the plaintiff failed
to examine any independent witnesses, to explain the reason for entering
into 2nd registered Sale Agreement. Except some explanation by PW.1, who
is interested witness, there is no evidence available on record to give
plausible explanation to enter into 2nd agreement. In such circumstances, the
version of PW.1 as if, 2nd agreement was entered into just to create
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encumbrance in the suit property and the same was not intended to be acted
upon is not acceptable to this Court.
14. It is also pertinent to mention after respondent and her sister had
taken delivery of the agreement mentioned property through Court during
April-2011, the respondent's sister Saradha executed a pacca Sale Deed in
favour of the appellant/plaintiff in pursuance of registered 2nd agreement
dated 20.02.2008. The said Sale Deed executed by Saradha was marked as
Ex.B3 by the respondent. A perusal of the same would clearly establish that
the registered Sale Agreement between the parties dated 20.02.2008 was
acted upon and in pursuance of the same respondent's sister executed her
half share in favour of appellant/plaintiff. The appellant for the reason best
known to him, suppressed not only registered Sale Agreement Ex.B1 and
also the material fact that Ex.B3-Sale Deed was executed by Saradha in
pursuance of registered Sale Agreement Ex.B1. A perusal of Ex.B3-Sale
Deed executed by Saradha would clearly establish that there was no
reference about the Suit Sale Agreement in that Sale Deed. However, the
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appellant/plaintiff made a false averment in the plaint as if, the said Saradha
executed Sale Deed in favour of appellant in pursuance of the Suit Sale
Agreement. In Paragraphs VII and VIII of the plaint, it is averred as
follows:-
“VII. It is humbly submitted that only during the month
of April 2011, the delivery of property was effected and the
said R.E.P.No.105/2008 was terminated. It is humbly submitted
that even after that the plaintiff has been requesting the
defendant and the said Mrs.Saradha to execute the sale deed at
his cost after receiving the balance of sale price of as per suit
sale agreement. It is humbly submitted that though the said
Mrs.Saradha was willing to execute the sale deed to the
plaintiff, the defendant herein had been postponing the
execution of the sale deed on some pretext or other and she
was adopting all the possible methods to avoid executing the
document.
VIII. It is humbly submitted that as the defendant had not
co-operated with the said Mrs. Saradha, on 21.11.2011, the
said Mrs.Saradha had received her part of the sale
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consideration from the plaintiff and executed a registered sale
deed in respect of her half share in favour of the plaintiff.”
15. The averment in the plaint as if, Saradha executed Sale Deed in
respect of her half share in pursuance of Suit Sale Agreement got falsified
by production of Ex.B3-Sale Deed executed by her. The same had been
executed in pursuance of registered 2nd agreement and not in pursuance of
Suit Sale Agreement. Therefore, there is ample evidence available on record
to show that the 2nd registered Sale Agreement had been acted upon by the
appellant/plaintiff. However, the same has been deliberately suppressed by
the plaintiff. Therefore, this Court has no hesitation in holding the appellant
has not come to the Court with clean hands by putting forth the true facts.
16. The learned Senior Counsel for the appellant by taking this Court
to the notice issued by the respondent under Ex.A2 submitted that the
respondent herself only wanted completion of sale transaction in pursuance
of Suit Sale Agreement and therefore, the 2nd Sale Agreement can be
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ignored. As pointed out earlier, both the Suit Sale Agreement and 2nd
registered Sale Agreement are between the appellant on one hand and the
respondent and her sister Saradha on the other hand. Regarding her half
share, said Saradha already executed a pucca Sale Deed in pursuance of the
2nd registered Sale Agreement dated 20.02.2008 and the Sale Deed has been
marked as Ex.B3. When half of the property is already purchased by the
appellant from said Saradha on the terms settled by the 2nd agreement, it
would not be appropriate to say that in respect of other half of the property,
the earlier Sale Agreement still holds good notwithstanding execution of
Sale Deed by Saradha as per the 2nd agreement in respect of her half share.
Therefore, the appellant cannot take advantage of the notice issued by the
respondent under Ex.A2. In view of the discussions made earlier, this Court
concurs with the findings of the Trial Court that the 2nd registered Sale
Agreement entered between the parties superseded the earlier Suit Sale
Agreement and hence, the Courts below are justified in holding that the suit
is barred by principle of novation of contract. The second question of law is
answered accordingly against the appellant and in favour of the respondent.
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17. Even otherwise, as discussed earlier, the appellant/plaintiff is
guilty of suppression of material fact namely,
(a) He failed to disclose the 2nd registered Sale Agreement entered
between the parties dated 20.02.2008 in his plaint.
(b) He deliberately made a false averments in the plaint as if, Sale Deed
was executed by Saradha as per the terms of the earlier Sale
Agreement at his request. Thus, the execution of Ex.B3 Sale Deed by
Saradha as per the terms of 2nd registered Sale Agreement has been
suppressed and an attempt was made to mislead the Court.
18. It is settled law a person, who approaches the Court with tainted
hands is not entitled to equitable remedy of specific performance. The
appellant is guilty of suppression of material fact and having failed to
approach the Court with clean hands, the appellant is not entitled to
equitable remedy of specific performance. The Courts below rightly came to
the conclusion that appellant has not approached the Court with clean hands
and as a consequence, not entitled to remedy of specific performance.
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19. Further, even as per the averment of the appellant in his plaint, the
respondent and her sister Saradha had taken possession of the agreement
mentioned property during April-2011. As per the recital found in the Suit
Sale Agreement, time stipulated for agreement is extendable upto the time
of taking delivery. The other co-owner of the agreement mentioned property
namely Saradha executed Sale Deed in favour of the appellant/plaintiff as
early as 21.11.2011. It is the case of the appellant that respondent failed to
co-operate with Saradha for execution of Sale Deed. Therefore, Saradha
separately executed a Sale Deed in respect of her half share. In that case, the
appellant should have taken steps to specifically enforce the agreement
against the respondent immediately. The sequence of facts in this case
establish the first notice was issued by respondent on 11.04.2012, then only
appellant issued a reply notice on 23.04.2012 seeking performance of the
agreement. Therefore, there is no explanation on the part of the appellant
why he failed to seek specific performance from April-2011 to April-2012
nearly for one year. Atleast when non-cooperation of the respondent is
established by execution of Sale Deed by Saradha in respect of her half
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share, the appellant should have approached the Court immediately. His
failure to take any steps for performance till notice by respondent clearly
creates a serious doubt about his continuous readiness and willingness to
perform his part of the contract. Therefore, the appellant also failed to prove
his continuous readiness and willingness so as to claim specific
performance of the agreement. Therefore, the judgement and decree passed
by the Courts below dismissing the suit filed by him deserves to be
confirmed. In the light of above discussion, the case laws cited by learned
Senior Counsel for appellant, with regard to employment of fraud, in 2007
(4) SCC 221, 2003 (8) SCC 319 and Review Application No.33 of 2010, are
not applicable to facts of the case especially when Ex.B2 was admitted by
PW.1 in his cross examination as if, it was handed over to respondent by
him. The decision in 2001 (1) SCC P.586 and 1997 SCC (Ker) 140 are also
not applicable to the facts of the case in view of the fact subsequent to
execution of 2nd registered agreement the same has been acted upon in the
present case in the form of sale deed by Saradha in favour of appellant
under Ex.B3.
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20. In view of my answer to the 2nd question of law and the other
reasonings regarding the failure of the appellant to approach the Court with
clean hands and lack of evidence for his continuous readiness and
willingness, the Second Appeal stands dismissed.
Discussion on Petition to raise Additional Evidence:-
21. The appellant herein has filed an application to raise additional
evidence. Along with application, he filed following three documents:-
(i) Registered Sale Agreement between the parties dated 20.02.2008.
(ii) Petition and Orders in R.E.P.No.105 of 2008.
(iii) Delivery account in R.E.P.No.105 of 2008.
As far as Documents Nos.2 and 3 are concerned, those documents are
relating to the EP proceedings through which the possession of the
agreement mentioned property was taken by the respondent and Saradha.
Those documents came into existence well prior to filing of the suit. In fact,
the appellant referred to taking of possession by the respondent through
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Court in April-2011 in his plaint averment with EP number. However, the
appellant failed to produce those documents before the Trial Court for the
reasons best known to him. In the affidavit filed in support of petition to
raise additional evidence, the appellant has not given any convincing reason
for his failure to produce the Documents Nos. 2 and 3 before the Trial Court
at the time of trial. The essential ingredients of Order 41 Rule 27 of Civil
Procedure Code have not been satisfied as far as Documents Nos.2 and 3 are
concerned and therefore, this Court conclude those two documents cannot
be permitted to be received as additional evidence in second appeal.
22. As far as Document No.1 is concerned, it is original registered
Sale Agreement entered between the parties dated 20.02.2008. The certified
copy of the same has been marked as Ex.B1. The appellant wants to mark
the original registered agreement only for the purpose of demonstrating that
an endorsement made in the backside of 2nd page in the said document was
xeroxed and inserted as Page No.5 in Ex.B2 clandestinely by the
respondent. When Ex.B2 consisting 5 pages were shown to the appellant
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while he was in witness box as PW.1, he admitted the same. Now, in the
affidavit filed in support of the petition to raise additional evidence, it is
stated by the appellant that during cross examination, he did not verify each
and every page of the document and therefore, a manipulated document,
which includes a newly inserted 5th page was allowed to be marked. It is
also stated by him in his affidavit that the said manipulation came to his
knowledge only when it was pointed out by his counsel in second appellate
stage. It is pertinent to mention that availability of 5th page in Ex.B2 was
very well pointed out by the Trial Court in its judgement. In fact the Trial
Court observed that Ex.A1 got only 4 pages and its xerox copy Ex.B2 got 5
pages and the said discrepancy has not been clearly explained by the
appellant. The said discrepancy was one of the factor which weighed with
the Trial Court to dismiss the suit filed by the appellant. In that case, the
appellant should have filed original registered agreement between the
parties atleast before the First Appellate Court. For the reason best known to
him, the appellant failed to produce the same as additional document before
the First Appellate Court. The reason assigned by the appellant for his
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failure to produce the original registered Sale Agreement between the
parties before two Courts below is not convincing and acceptable. Even
assuming the first document sought to be produced by the appellant is
received in evidence and marked as exhibit before this Court, still the
appellant has to explain why he failed to make a reference about the
registered agreement between the parties in the plaint averments. This Court
already concluded that failure of the appellant to refer to the registered
agreement would make him as a person approaching the Court with unclean
hands and therefore, the receipt of first document relied on by the appellant
as additional evidence would not have much impact on the final outcome of
the second appeal. In such circumstances, this Court holds the Document
No.1 will not be useful to this Court to dispose of the second appeal in a
more satisfactory way and in the absence of any convincing reasons for
failure of the appellant to produce the same before the Courts below, this
Court is not inclined to accept the first document also. In view of the
discussion made earlier, the petition to raise additional evidence is
dismissed.
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23. In Nutshell:-
(i) The Second Appeal is dismissed by confirming the judgement and
decree passed by the Courts below.
(ii) In the facts and circumstances of the case, there shall be no order as to
costs.
(iii) C.M.P.No.5625 of 2023 to raise additional evidence stands dismissed
and other connected civil miscellaneous petition is closed.
04.01.2024
Index : Yes
Speaking order : Yes
Neutral Citation : Yes
dm
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To
1.The Third Additional District Court,
Salem.
2.The First Additional Sub Court,
Salem.
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S.SOUNTHAR, J.
dm
Pre-delivery judgement in
04.01.2024
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