G.Karuna Kumari vs Adepu Subhash Chandra Bose
2023 Latest Caselaw 20 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.795 of 2003
JUDGMENT :

This appeal is arising out of the judgment dated 07.07.2003 in

A.S.No.7 of 2000 on the file of III Additional District Judge,

Warangal, confirming the judgment and decree of the trial Court

dated 31.12.1999, passed in O.S.No.416 of 1992 on the file

Principal Senior Civil Judge, Warangal.

2. For the sake of convenience, the parties are referred to as

arrayed before the trial Court.

3. Heard learned counsel for the appellant as well as the counsel

for the respondent and perused the record.

4. The plaintiff is the appellant. Initially, the suit was filed by

the plaintiff against the defendant for specific performance of sale

agreement dated 11.04.1991, directing the defendant to register the

suit house in the name of the plaintiff by duly receiving the balance

of sale consideration or alternatively through due procedure of the

Court in the name of the plaintiff in case the defendant refuses to

register the same and for permanent injunction against the defendant

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from interfering with the peaceful possession and enjoyment of the

plaintiff over the suit house and for costs of the suit.

5. The brief averments of the plaint are that the defendant agreed

to sell the suit schedule house for Rs.90,000/- and took advance of

Rs.20,000/- and executed Ex.A-1, agreement of sale on 11.04.1991.

On the same day, expressing some urgent necessity, defendant

received an amount of Rs.20,000/- and passed a separate receipt.

Immediately, the next day, i.e., on 12.04.1991, the plaintiff came to

know that the defendant already received an amount of Rs.20,000/-

from one Prabhakar Reddy and Ramachander Reddy and agreed to

sell the house. When plaintiff asked said Prabhakar Reddy and

Ramachander Redddy about the said issue, they agreed to give up

their transaction in his favour provided that the defendant returns the

amount of Rs.20,000/- to them. Thereafter, at the request of the

defendant, the plaintiff paid Rs.20,000/- to Prabhakar Reddy and

Ramachander Reddy, who in turn passed a receipt in favour of the

defendant and the same was handed over to the plaintiff. On the

same day, the defendant requested for Rs.10,000/- but the plaintiff

paid only Rs.2,000/- for which the defendant passed a receipt. Thus,

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in all the plaintiff paid Rs.62,000/- and after execution of agreement

of sale, the defendant delivered possession of the suit house and

since then, the plaintiff is in possession and enjoyment of said

house. Later, telephone connection was obtained to the suit house in

the name of his brother and the plaintiff has also received some

letters sent by her younger sister to the said address.

6. It is the further case of the plaintiff that inspite of several

demands to receive the balance sale consideration of Rs.28,000/-

and for execution of registered sale deed, the defendant failed to do

so and he tried to sell the property to the third parties, for which the

plaintiff got published notices in 'Warangal Vani' and 'Udayam'

dailies (newspapers) on 28.11.1991 and 02.12.1991 respectively

cautioning the general public. Thereafter, the plaintiff also got

issued a legal notice through her counsel on 13.01.1991. The

defendant instead of giving reply to the said notice, issued a notice

demanding the plaintiff to furnish copies of sale agreement and

receipts. When the plaintiff along with her father approached the

defendant, the defendant placed a condition that unless the plaintiff

clears off the debt to the bank, he will not register the sale deed, for

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which the plaintiff again issued a legal notice. Though the

defendant received the said notice, he did not choose to give reply.

Apprehending the danger to her possession over the suit schedule

property, the plaintiff was constrained to file the suit.

7. On the other hand, the defendant filed the written statement

admitting execution of agreement of sale dated 11.04.1991 and

stated that he sought the help of Real Estate broker Ramachander

Reddy and entered into an agreement of sale with Prabhakar Reddy

for Rs.10,000/- and received Rs.20,000/-, but Prabhakar Reddy

failed to perform his part of contract. Later, Ramachander Reddy

approached the father of the plaintiff on 11.04.1991 and agreed to

pay Rs.20,000/- to Prabhakar Reddy separately apart from sale

consideration of Rs.90,000/- and then the defendant executed Ex.A-

1 due to confidence in Ramachander Reddy without receiving

Rs.20,000/-. On 12.04.1991, the father of the plaintiff paid

Rs.2000/-. On 11.04.1991, he received Rs.20,000/- as per the

agreement to which the defendant passed a receipt for Rs.22,000/- in

favour of the plaintiff by mentioning earlier payment of Rs.20,000/-.

It is further contended that the father of the plaintiff wrote a letter to

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him on 22.12.1991 stating that the plaintiff has paid only

Rs.15,000/-. Since the plaintiff illegally trespassed into the house,

the defendant claimed for recovery of possession and damages of

Rs.500/- per month. Immediately, after receipt of the notice dated

13.12.1991 issued by the plaintiff, the defendant got issued a reply

notice dated 02.01.1992 asking the plaintiff to furnishing copies of

sale agreement and receipts which are received by the counsel for

the plaintiff under postal acknowledgment and prayed to dismiss the

suit with exemplary costs.

8. Basing on the pleadings, the trial Court has framed the

following issues for trial:-

"1. Whether the agreement of sale dated 11.04.1991 is not supported by consideration and not binding on the defendant as calling by the defendant?

2. To what relief?"

9. On behalf of the plaintiff, P.Ws.1 and 2 were examined and

got marked Exs.A-1 to A-12. On behalf of the defendants, D.Ws.1

and 2 were examined and got marked Exs.B-1 to B-9.

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10. The trial Court after considering the entire oral and

documentary evidence on record, dismissed the suit and directed the

defendant to pay Rs.22,000/- to the plaintiff.

11. Being aggrieved by the same, the plaintiff has preferred an

appeal vide A.S.No.7 of 2000 before the III Additional District

Judge, Warangal.

12. On hearing the appellant, the trial Court has framed the

following point for consideration:-

"Whether the reasons and findings in the lower court order

are erroneous and are liable to be set aside. Further, the appellate

Court has come to a conclusion that the appeal is a continuation of

the proceedings. The issues are recasted and discussed as follows:

"i) Whether the agreement of sale dated 11.04.1991 is not supported by consideration and not binding on the defendant as alleged by the defendant?

ii) Whether the plaintiff is entitled for the relief of permanent injunction?

iii) To what relief?"

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13. Considering the oral and documentary evidence on record, the

appellate Court has come to a conclusion that Ex.A-1, agreement of

sale dated 11.4.1991 is supported by consideration of Rs.20,000/-

and further payment of Rs.2,000/- on 12.04.1991 only and not for

Rs.62,000/- as alleged in the plaint. Hence, the agreement is said to

have fallen through and not binding on the defendant. Accordingly,

dismissed the appeal confirming the judgment and decree of the trial

Court in O.S.No.416 of 1992 dated 31.12.1999 directing the

plaintiff to deliver the possession of the suit schedule property to the

defendant within one month from the date of decree of appeal and

the interim order passed in I.A.No.520/2002 dated 19.10.2002

stands vacated.

14. Being aggrieved by the decree and the judgment of the

appellate Court, the plaintiff filed the present Second Appeal raising

the following substantial questions of law:-

"a) Whether a suit for specific performance can be dismissed attributing un-cleaning hands to the plaintiff when the agreement of sale is admitted and part performance of the sale is also admitted and dispute is only with regard to the

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amount actually paid under Ex.A-1 Agreement of Sale?

b) When the defendant-vendor has admitted the agreement of sale, delivery of possession and payment of part consideration amount out of the total consideration amount of Rs.90,000/-, can the courts adduce specific performance since the version of the plaintiff as well as the defendant about the quantum of the part consideration paid is disbelieved and whether an equity, court would not have jurisdiction to grant specific performance subject to the condition of the payment of the balance consideration amount as arrived at by the court?

c) Whether the finding of the appellate court that oral evidence cannot be looked into the civil cases and only documentary evidence can be the basis of the judgment in a civil suit is a valid proposition of law?

d) In Ex.A.3 receipt of Rs.20,000/- (original) is produced and marked by the plaintiff, can the courts below ignore the same in the face of the evidence of the defendant that at his instructions, the plaintiff has discharged the

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liability of the defendant in favour of Prabhakar Reddy, who was having a prior agreement of sale in his favour?

e) When there is a recital in Ex.A.1 of receipt of Rs.20,000/- on the date of the agreement and when there is a Ex.A.2 receipt on the same date, for another sum of Rs.20,000/-, can the courts record a finding that it is only one payment of Rs.20,000/- reflected in Ex.A1 and A.2?

f) Whether the findings of the courts below are not perverse and do not amount to a total misleading of the evidence on record?

g) When the plaintiff has issued suit notice and the defendant has asked the plaintiff to furnish him the agreement of sale and the receipt copies, cannot the court draw an inference that the defendant is trying to avoid performance of Ex.A.1 and whether dispute on the quantum of part consideration amount will out way the sinister conduct of the defendant who has not taken care to admit the agreement of sale and called upon the plaintiff to furnish him a copy of Ex.A.1 to A.4?"

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15. The Second Appeal is of the year, 2003 and it is coming up

for hearing since long time. On 12.11.2022, counsel for the

appellant was heard and there was no representation on behalf of the

respondent. Therefore, the matter was posted for hearing on

05.12.2022 incorporating a default clause stating that in the absence

of representation of respondent, the arguments of the respondent

will be treated as heard and the matter was posted to 14.12.2022.

Even on 14.12.2022, there was no representation for respondent.

Having no other option, this Court has treated the arguments of the

respondent as heard and the matter was reserved for judgment.

16. It is the specific contention of the learned senior counsel Sri

Vedula Venkata Ramana appearing for the appellant that the

consideration mentioned in Ex.A-1 is Rs.90,000/- and during the

time of execution of Ex.A-1, an amount of Rs.20,000/- has been

paid and on the same day, an amount of Rs.20,000/- has been paid

vide receipt under Ex.A-2. Further under Ex.A-3, an amount of

Rs.20,000/- has been paid and finally an amount of Rs.2,000/- was

paid vide receipt under Ex.A-4 and the total amount which has been

received by the defendant is Rs.62,000/-. But both the Courts below

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have dismissed the suit as well as the appeal of the plaintiff with a

perverse finding. It is further contended by the senior counsel that

though Ex.A-5, legal notice was sent, the defendant inspite of

receiving the same, has failed to issue any reply and that the plaintiff

was ready and willing to perform his part of contract, but the

defendant evaded the execution of registration of sale and therefore,

prayed to set aside the orders of the lower Court as well as the 1st

appellate Court.

17. Learned counsel for the appellant further relied on the

judgment of the Apex Court reported in Zarina Siddiqui vs.

A.Ramalingam1, wherein their lordships have held as follows:-

"34. 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 time, if the defendant does not come with clean hands and suppresses material facts and evidence and misled the Court then such discretion should not be exercised by refusing to grant specific performance.

(2015) 1 SCC 705

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35. In the instant case, as noticed above, although defendant no.2 held a registered power of attorney on behalf of defendant no.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, disentitle 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 mislead the Court, the Court has inherent power to exercise its discretionary jurisdiction in order to prevent abuse of the process of law."

18. As per the pleadings of the written statement, the defendant

himself has admitted about execution of agreement of sale on

11.4.1991 and also about payment of amount of Rs.2,000/- for

which a receipt was passed in favour of the plaintiff on 12.04.1991.

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He further admitted that after receiving legal notice of the plaintiff,

he issued a notice dated 21.12.1992 asking the plaintiff to furnish

copies of sale agreement and receipts.

19. It is pertinent to note that Ex.A-5 is the legal notice issued by

the plaintiff to the respondent which is nothing but reiteration of the

pleadings in the plaint and Ex.A-7 is the further legal notice issued

by the plaintiff. On perusal of Ex.A-1, it is evident that one

Prabhakar Reddy is the witness to the agreement of sale dated

29.11.1988 and the defendant has signed on Ex.A-1. The signatures

which appear on Ex.A-1 and A-2 are one and the same.

20. As per Section 103 of the Indian Evidence Act, whoever

ascertains a particular fact, it is for them to prove. It is the specific

contention of the defendant that he has only received Rs.22,000/-

and not received any amount from the plaintiff for another

Rs.40,000/- covered under Exs.A-2 and A-3.

21. Admittedly, Ex.A-3 was signed by Prabhakar Reddy who

alleged to have received the amount and at the instance of the

defendant, the said amount was paid to Prabhakar Reddy. But no

effort was made by the defendant to prove that the signature on

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Ex.A-2 do not belong to him and he has not received the said

amount. There is no hard and fast rule to acknowledge the

agreement of sale and that the receipt cannot be taken for the

amount which has paid on the same day to the party. It was the

specific finding of the Court below that the "plaintiff has stated as if

she paid Rs.62,000/- while in fact, she paid only Rs.22,000/- by way

of part-payments towards Ex.A-1, agreement of sale dated

11.04.1991 and that she came to the Court with unclean hands and

therefore, she is not entitled for relief of specific performance.

Therefore, the benefit of Section 53-A of Transfer of Property Act is

not applicable to the plaintiff as she is not ready and willing to do

her part of contract". But Ex.A-5, notice issued by the plaintiff

discloses that she was willing to perform her part of contract and

also about payment made by her. If at all the defendant had any

grievance with regard to Ex.A-5, he ought to have given reply

denying the averments of Ex.A-5, notice.

22. The trial Court has come to a conclusion that letter filed by

the defendant said to have been written by Ramachandra Reddy

under Ex.B2 dated 22.12.1991 disclose that Ramachandra Reddy

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received Rs.15,000/- only, which cannot be considered in view of

Exs.A-1 to A-4 and that too Ex.B-2, which was written subsequent

to the issuance of Ex.A-5, notice. Exs.A-5 and A-7 are the notices

which are received by the defendant under Exs.A-6 and A-8, who

inturn has sent reply notices through his counsel under Exs.B-5 and

B-7 requesting the counsel for the plaintiff for supply of copies of

Exs.A-1 to A-4. Admittedly, Ex.A-1 is agreement of sale dated

11.04.1991, Ex.A-2 is the receipt for Rs.20,000/- dated 11.01.1991,

Ex.A-3 is the receipt for Rs.20,000/- executed by Prabhakar Reddy,

Ex.B-5 is the notice subsequent to legal notice of the plaintiff, Ex.A-

5 dated 13.12.1991, wherein the defendant counsel requested the

counsel for the plaintiff to furnish copies of Exs.A-1 to A-4 which

were supplied by the counsel for the plaintiff as per the evidence of

P.W.1. Though the plaint is silent about sending xerox copies of

Exs.A-1 to A-4, P.W.1 in cross-examination specifically admitted

that those copies were sent by her counsel and the same were

received and acknowledged by the counsel for defendant. Ex.B-9 is

the reply notice to Ex.B-7 i.e., with regard to supply of copies of

Ex.A-1 to A-4. But it is strange to receive reminder notice stating

that no copies were served and that a suit is filed for specific

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performance before the Principal Senior Civil Judge, Warangal vide

O.S.No.416 of 1992 and the Court was pleased to grant injunction in

their favour vide I.A.No.520 of 2002.

23. In fact, the documents which are filed by the plaintiff clearly

disclose that the plaintiff had paid an amount of Rs.62,000/- and she

is ready and willing to perform her part of contract by paying

balance sale consideration. Both the Courts below have erred in

coming to a conclusion that the plaintiff is not ready and willing to

execute her part of contract, wherein Ex.B-5 clearly discloses that

the plaintiff is ready and willing to perform her part of contract and

she is ready to pay balance sale consideration of Rs.28,000/- and

sought for the relief of execution of registered sale deeds.

24. As substantial question of law is involved, this Second

Appeal deserves to be dealt with question of law including the

documentary evidence which was not considered by the Courts

below. The trial Court has not considered Ex.A-3, receipt of

Rs.20.000/-, which was issued by the defendant and the same cannot

be ignored.

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25. As per Section 103 of the Indian Evidence Act, whoever

ascertains a particular fact, it is for them to prove. The defendant

contended that he has received an amount of Rs.22,000/- vide

Exs.A-1 and A-3 and not vide Ex.A-4. It is for the defendant to

prove that he has not received an amount of Rs.62,000/-and only

received Rs.22,000/-, though Exs.A-2 and A-3 disclose that an

amount of Rs.40,000/- was received by the defendant as well as

Prabhakar Reddy.

26. It is quite evident from the judgment of the appellate Court

that amount which ought to have been received by the defendant has

to be acknowledged only on Ex.A-1 and there is no need for issuing

receipt under Ex.A-2. Admittedly, there is no hard and fast rule laid

down by law to endorse only on Ex.A-1, even a receipt can be

issued for acknowledging the receipt of the amount. Moreover, it is

the finding of the 1st appellate Court that Ex.A-1 was written in

English language and Ex.A-2 was written in Telugu language. It is

not at all necessary for the Courts to look into in which language the

contents were written. Admittedly, the amount mentioned in Ex.A-

1 is separate, from the amount mentioned in Ex.A-2 though they are

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executed on the same day. There is no specific mention about

Ex.A-2 in Ex.A-1. So, the Courts ought to have looked into Ex.A-2

independently and as a separate amount. Therefore, it is for the

defendant to prove that he has not received the amount under Ex.A-

2 apart from Ex.A-1. Both the Courts have committed an error in

not considering Ex.A-2 and A-3 under which, the amount is said to

have been paid to Prabhakar Reddy. The contents of the receipt

disclose that defendant mentioned that he has received back

Rs.20,000/- under Ex.A-2 dated 12.04.1991. The literal words used

are 'tirigi muttinadi' which means that it was returned back to the

defendant. Therefore, this Court has no hesitation to come to a

conclusion that the amount to a tune of Rs.62,000/- has been paid by

the plaintiff which was received by the defendant. Further, Ex.A-5

discloses that the plaintiff was ready and willing to pay balance sale

consideration and therefore, she deserves the relief of specific

performance as per the agreement, Ex.A-1.

27. P.W.2 is the father of the plaintiff. His evidence discloses

that P.W.1 has purchased the old house bearing No.1-155 and

corresponding new No.4-97 situated at Gopalapuram, Hanmakonda

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near Kakatiya University from the defendant for Rs.90,000/- on

11.04.1991 and he was present at the time of said transaction i.e.,

execution of the document. His evidence further discloses that

plaintiff paid Rs.20,000/- at the time of execution of Ex.A-1 and on

the same evening, the defendant approached and requested for

another Rs.20,000/- with a contention that he entered into agreement

with one Prabhakar Reddy in respect of said house and he has to

return the amount, received from Prabhakar Reddy and therefore,

the plaintiff has paid an amount of Rs.20,000/- to the defendant

obtaining a receipt. Further, on the next day, they have paid

Rs.2,000/- to the defendant and Rs.20,000/- to Ramachandra Reddy

for returning the said amount to Prabhakar Reddy for which

Ramachandra Reddy passed a receipt for Rs.20,000/- and the

defendant passed a receipt for Rs.22,000/- including the amount

paid to Ramachandra Reddy. It is the specific evidence of P.W.2

that Ex.A-1 contains signature of Ramachadra Reddy but cannot

identify the signatures of others.

28. In the evidence of D.W2, Prabhakar Reddy clearly discloses

that he purchased the house of the defendant for Rs.80,000/- and

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paid an advance of Rs.20,000/- to his brother-in-law and

Ramachandra Reddy acted as mediator. He further testified that

though an agreement was written on a white paper, it was later

cancelled. He further deposed that when he demanded for

repayment of advance, his brother-in-law stated that he will sell the

said house to another person and see that his advance will be paid.

Accordingly, his brother-in-law arranged another purchaser for

Rs.1,10,000/-, out of which he received Rs.20,000/-. He received an

amount of Rs.15,000/- through his brother-in-law and later

Ramachandra Reddy died in the year, 1995. In the cross-

examination, it is deposed by D.W1 that he attested Ex.A-1, after

reading over the contents of Ex.A-1. In Ex.A-1, it was written that

the sale price was fixed at Rs.90,000/- and Rs.20,000/- was paid on

that date and amount of Rs.70,000/- is to be paid. Ex.A-3 is in the

hand writing of his brother-in-law and it is also signed by him.

29. Therefore, from the evidence of D.W.2, it can be construed

that Ex.A-3 is in the handwriting of Ramachander Reddy, who is no

more and the amount was also received by the defendant from the

plaintiff.

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30. In view of the above facts and circumstances of the case, the

judgments of Courts below are liable to be set aside, the Second

Appeal is allowed by setting aside the judgment and decree in

A.S.No.7 of 2000 as well as the judgment in O.S.No.416 of 1992,

on the file of Principal Senior Civil Judge, Warangal. Further, the

defendant is directed to execute registered sale deed in favour of the

plaintiff by receiving balance sale consideration or alternatively the

lower Court is directed to register suit house in the name of the

appellant in case, the respondent refuses to register the same within

three months from the date of receipt of a copy of this order.

Pending miscellaneous applications, if any, shall stand closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date:03.01.2023 dv