P Mallesham vs Shaik Omar And Another
2022 Latest Caselaw 6346 Tel

THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY

              APPEAL SUIT NO.638 OF 2018

JUDGMENT:

This appeal suit is filed assailing the judgment

and decree dated 10.11.2017 in O.S.No.172 of 2012 on the

file of the III Additional District Judge at Karimnagar.

2. The plaintiffs have filed the Original Suit in

O.S.No.172 of 2012 for specific performance of agreement

of sale dated 19.02.2009. The defendant resisted the suit

by filing written statement but failed to cross-examine

PWs.1 and 2 and also failed to adduce any evidence on his

behalf. Accordingly, the trial Court, after giving ample

opportunity to the defendant to prove his case, as the

defendant remained absent without representation, having

heard learned counsel for the plaintiff, answered both the

issues in favour of the plaintiff holding that the plaintiff is

entitled for specific performance of agreement of sale dated

19.02.2009. As such the defendant was directed

accordingly to execute and register the sale deed at the

expense of the plaintiffs within one month from the date of AVR,J AS_638_2018

decree and in the event the defendant fails to obey the

decree, the plaintiffs are at liberty to approach the Court

for taking steps under law for execution of the same.

3. Feeling aggrieved by the said judgment and

decree dated 10.11.2017 in O.S.No.172 of 2012, this

appeal suit is filed.

Pleadings of the plaint and written statement :

4. The 1st plaintiff was the owner and possessor of

the agricultural dry land admeasuring Ac.0-3½ guntas in

Sy.No.284/A and second plaintiff was the owner and

possessor of agricultural dry land admeasuring Ac.0-16¼

guntas in Sy.No.284/A forming as a compact block at

Nagunur Village, which is described as plaint schedule

property. The plaintiffs have proposed to sell the same in

favour of defendant for the consideration of Rs.10,19,750/-

and the defendant agreed to purchase the same. However,

the defendant intended to ascertain the actual land

available at the spot and it was mutually agreed between

the parties to postpone the payment of consideration till

the measurement of the land is completed. However,

plaintiffs have executed a registered sale deed in favour of AVR,J AS_638_2018

defendant in respect of suit schedule property on

16.02.2009 incorporating a nominal consideration of

Rs.63,000/-. The defendant in turn has executed an

agreement of sale dated 19.02.2009 in favour of the

plaintiffs agreeing to pay the sale consideration of

Rs.10,19,750/- after taking measurements. The defendant

has also agreed that if he fails to pay the sale consideration

after measurement of the suit land, he would re-convey the

land in favour of the plaintiffs. In April, 2009 the plaintiffs

have got measured the suit land and informed the

defendant stating that the extent of the land as mentioned

in the registered sale deed is correct and demanded for

payment of balance sale consideration. Again in July, 2009

plaintiffs have got measured the suit land and found it to

be correct and requested the defendant for payment of sale

consideration or to execute a registered re-conveyance deed

at the expenses of plaintiffs. Finally, the plaintiffs got

issued legal notice dated 04.09.2012 demanding the

defendant either to pay the sale consideration or to re-

convey the suit land. The defendant has managed to

return the said legal notice. Since the sale deed dated AVR,J AS_638_2018

16.02.2009 is without sale consideration, no right, title or

interest is passed in favour of the defendant and the

defendant has failed to implement the terms and

conditions of the agreement dated 19.02.2009, the

plaintiffs have filed the suit.

5. The defendant resisted the suit alleging that he

has purchased the suit schedule property by paying an

amount of Rs.10,19,750/- and the plaintiffs have executed

registered sale deed on 16.02.2009 for valuable

consideration and the possession was also delivered. While

so, on 19.02.2009 i.e. three days after execution of sale

deed, the first plaintiff approached the defendant stating

that half gunta of the land was found in excess to the land

sold by them and asked the defendant for payment of value

of half gunta. Accordingly, the document dated

19.02.2009 was executed mentioning that the defendant

purchased Ac.0-19¾ gutnas from the plaintiffs and agreed

to pay Rs.19,750/- after getting the land measured. The

plaintiffs kept the original with them and gave photocopy of

the same to the defendant. On the basis of registered sale

deed dated 16.02.2009 mutation was effected but the AVR,J AS_638_2018

plaintiff never got measured the land nor they demanded

for Rs.19,750/-. After lapse of three years, suddenly on

26.09.2012 the defendant has received a notice through

the Court Process Server and verified the document dated

19.02.2009, which was tampered by the plaintiffs to suit

their convenience and started claiming Rs.10,19,750/- by

inserting the said amount in the place of Rs.19,750/- and

also inserting the extent of land in place of Ac.0-19 guntas.

Accordingly, the defendant has filed a criminal case vide

Crime No.176 of 2012 for the offences under Sections 420,

468 and 471 of Indian Penal Code (for short 'IPC') and the

case is pending before the Additional Judicial First Class

Magistrate at Karimnagar.

Issues:

6. Basing on the pleadings, the following issues

were settled before the trial Court.

1. Whether the plaintiffs are entitled for specific performance of agreement of sale dated 19.02.2009?

2. To what relief?

AVR,J AS_638_2018

Evidence and findings of the trial Court:

7. During trial, as stated supra, on behalf of

plaintiffs, the first plaintiff himself got examined as PW1,

an independent witness is examined as PW2 and in all

Exs.A1 to A5 documents are marked. The defendant failed

to cross-examine these witnesses and also failed to adduce

any evidence in support of his claim. Accordingly, the trial

Court, after hearing learned counsel for the plaintiffs and

upon appreciation of oral and documentary evidence

adduced on behalf of the plaintiffs decreed the suit

directing the defendant to execute registered sale deed in

favour of the plaintiffs in respect of the suit land within one

month from the date of judgment.

8. Feeling aggrieved by the said judgment and

decree, the defendant has filed this appeal.

9. Heard learned counsel for the appellant/

defendant and respondents/plaintiffs. The submissions

made on either side have received due consideration of this

Court.

AVR,J AS_638_2018

10. In the light of rival contentions and evidence

available on record, the following point would arise for

consideration:

Point for consideration:

Whether judgment impugned is sustainable or the Original Suit is liable to be remitted to the trial Court by setting aside the judgment and decree impugned?

For the sake of convenience the parties to this appeal

are hereinafter referred as plaintiff and defendant as they

were arrayed in the Original Suit before the trial Court.

Point :

11. The admitted case of the plaintiffs is that they

have executed the original of Ex.A2 registered sale deed

document No.573 of 2009 in favour of the defendant. It is

also an undisputed fact that after three days to the

execution of same on 19.02.2009 a simple agreement was

also executed. However, it is the contention of the

plaintiffs that a nominal sale deed without consideration

was executed and the parties have entered into Ex.A1

agreement for survey of the suit land and accordingly, AVR,J AS_638_2018

survey was conducted measurements, as mentioned in

Ex.A2, were found on ground and the said fact was also

informed to the defendant with a request either to pay the

sale consideration as mentioned in Ex.A1 i.e.

Rs.10,19,750/- or to re-convey the suit property in favour

of plaintiffs. As per Ex.A3, legal notice was also sent to the

defendant and it was returned unserved under Ex.A5.

However, the evidence of PWs.1 and 2 is not tested with

cross-examination and the plaintiffs have not adduced any

reliable evidence to show that after Ex.A1 the suit land

surveyed and found that the extent of the land as

mentioned in Ex.A1 was available on the ground.

12. Learned counsel for the appellant/defendant

strenuously contends that no opportunity was given to the

defendant to cross-examine PWs.1 and 2 or to adduce his

own evidence in support of the defence set up by the

defendant in his written statement. In-fact the agreement

dated 19.02.2009 is a forged document, the extent of the

land and the amount mentioned therein were changed

without the consent of the defendant to suit the

convenience of the plaintiffs. There was no demand of any AVR,J AS_638_2018

kind from the plaintiffs either for execution of registered

sale deed or for payment of consideration of

Rs.10,19,750/- and in-fact, a regular sale deed was

executed on 16.02.2009 itself, nothing remained in that

transaction except the fact that plaintiff No.1 has agitated

alleging that more extent of land was conveyed and

requested for survey. He would further contend that

ordinarily a litigation is based on adjudication on merits of

the contentions of the parties and it should not be

terminated by default of either of the parties and as far as

possible adjudication be done on merits, prayed to remit

the matter for fresh disposal in accordance with law by

setting aside the impugned judgment. Learned senior

counsel relied upon the following judgments :

(1) Aziz Ahmed Khan (Appellants) Vs. I.A. Patel (Respondent)1.

(2) Gurudas Biswas (Appellant) Vs.Charu Panna Seal and others (Respondents)2.

        (3)     Robin Thapa Vs. Rohit Dora3.
        (4)     Ritesh Tewari and another Vs.State of Uttar
                Pradesh and others4.

AIR 1974 AP 1 (Full Bench of AP High Court)

AIR 1977 Calcutta 110

AIR 2019 Supreme Court 3225

(2010) 10 Supreme Court Cases 677 AVR,J AS_638_2018

13. Per contra learned counsel for the plaintiffs

would submit that reasonable opportunity was given to the

defendants either for cross-examination of PWs.1 and 2 or

for adducing his own evidence but the defendant did not

chose to contest the matter, there is no such forgery in the

agreement dated 19.02.2009, it was a document executed

by the defendant consciously, subsequently, the plaintiffs

have also demanded for payment of sale consideration of

Rs.10,19,750/- as mentioned in the said document dated

19.02.2009 but the defendant has avoided and as a result,

the plaintiffs were compelled to issue legal notice dated

04.09.2012 and the defendant also avoided to receive the

same, as such, the present suit is filed. The defendant,

deliberately to protract the litigation, failed to cross-

examine PWs.1 and 2 and also failed to adduce evidence.

He would further submit that the principles laid in the

decisions relied upon by the learned counsel for the

defendant are not applicable to the facts of the case on

hand and prayed for dismissal of the appeal.

14. Be it stated that along with the grounds of

appeal the docket proceedings right from 26.04.2017 to AVR,J AS_638_2018

03.11.2017 are extracted in support of the defendant's

case to show that a reasonable opportunity was not given

to the defendant to resist the plaintiffs' claim. As per the

proceedings dated 26.04.2017 chief affidavit of PW1 was

already filed but the defendant remained absent. Exs.A1 to

A5 were marked on that day. Again, the matter was

adjourned to 07.06.2017 and 14.06.2017. On 07.06.2017

since PW1 was present, defendants remained absent and

as such, PW1's cross-examination was recorded as 'nil'.

On 28.06.2017 evidence affidavit of PW2 was filed and

thereafter, on 02.08.2017 since there was no

representation on behalf of defendant, cross-examination

of PW2 was recorded as 'nil'. Thereafter, on 22.08.2017

plaintiffs' evidence was reported 'closed', defendant was

absent and the suit was adjourned to 29.08.2017, on that

day defendant's evidence was also closed. Finally,

arguments of the plaintiffs were heard on 03.11.2017 and

the judgment was pronounced on 10.11.2017.

15. In the case of Aziz Ahmed Khan (first supra) a

Full Bench of this Court while dealing with Order XX, Rule

4 of CPC held that the Courts should apply their mind to AVR,J AS_638_2018

the facts of the case and the points in issue and give a

reasoned judgment thereafter duly evaluating the evidence

adduced and after considering the contentions of the

parties. Accordingly, since the judgment impugned was

not in conformity with Order XX, Rule 4(2) of CPC, it was

set aside.

16. In the case of Gurudas (2nd supra) the Apex

Court has held that even to pass an ex-parte decree in a

suit for ejectment, the Court cannot relieve itself of the

necessity of complying with Order XX, Rule 4 of CPC

whether the suit is contested or not.

17. In the case of Robin Thapa (3rd supra) the

Hon'ble Supreme Court has held that ordinarily, litigation

is based on adjudication on merits of the contentions of the

parties and the litigant should not be terminated by

default, either of the plaintiff or the defendant. The cause

of justice does require that as far as possible, adjudication

be done on merits.

AVR,J AS_638_2018

18. In the case of Ritesh Tewari (4th supra) the

Apex Court dealt with the powers of the trial Court under

Section 165 of Evidence Act.

19. Learned counsel for the appellant would further

submit that the learned judge of the trial Court has not

even looked into Ex.A1 and passed the impugned judgment

and decree and it is a fit case to be remitted back to the

trial Court for fresh consideration.

20. On overall consideration of the facts and

circumstances of the case and oral and documentary

evidence adduced on behalf of the plaintiff, it is crystal

clear that the provisions of Order XX, Rule 4 of CPC are not

complied with in the judgment impugned. The defendant

is disputing the recitals in Ex.A1 but there is no discussion

about this document in the entire judgment. The payment

of sale consideration, as mentioned in Ex.A2 is also

disputed by the plaintiffs stating that the property was sold

for an amount of Rs.10,19,750/- but a nominal sale deed

was executed by mentioning only Rs.63,000/- as sale

consideration. May be it is mentioned as per the book AVR,J AS_638_2018

value. All these facts have to be established and elicited in

the evidence of the plaintiffs and the defendant has to be

given an opportunity to adduce evidence in support of his

case. Therefore, while relying on the principles laid in the

above decisions, I am of the considered opinion that it is a

fit case to set aside the judgment and decree impugned and

to remit the matter to the trial Court for fresh disposal in

accordance with law. It is needless to mention that at the

time of recording evidence of PWs.1 and 2 in chief-

examination i.e. filing of their evidence affidavit in lieu of

chief-examination, exhibiting the documents Exs.A1 to A5,

the defendant was not set ex-parte and as such their

evidence shall remain part of the record even after

remittance.

21. In the result, this appeal suit is allowed,

judgment and decree dated 10.11.2017 in O.S.No.172 of

2012 on the file of the learned III Additional District Judge

at Karimnagar is hereby set aside and the Original Suit in

O.S.No.172 of 2012 is remitted to the trial Court for fresh

disposal in accordance with law affording an opportunity to

the defendant to cross-examine PWs.1 and 2 and to the AVR,J AS_638_2018

plaintiffs to adduce further evidence, if any, and after

closure of plaintiffs' evidence to give opportunity to the

defendant to adduce his evidence, if any, thereafter upon

hearing on both sides, to dispose of the suit on merits.

Both the parties to the suit shall co-operate for expeditious

disposal of the Original Suit since it is an old suit relating

to the year 2012.

Further, both the parties to the suit shall appear

before the trial Court i.e. learned III Additional District

Judge, Karimnagar on 24.12.2022 for receiving directions

of the trial Court as to further the proceedings, as

indicated above.

However, in the circumstances of the case, there

shall be no order as to the costs. Miscellaneous

applications, if any pending, shall stands closed.

________________________________ A.VENKATESWHARA REDDY, J Dated :02-12-2022 abb