M.Sudheer Kumar Goud vs S.Sridhar Reddy
2023 Latest Caselaw 2729 Tel

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                     APPEAL SUIT No.633 of 2012

JUDGMENT:

This Appeal Suit is filed against the Judgment and Decree

dated 04.06.2012 in O.S.No.783 of 2008 passed by the learned

I-Additional Judge Ranga Reddy District at L.B.Nagar,

Hyderabad.

2. Appellant/plaintiff filed a suit in O.S.No.783 of 2008 for

Specific Performance of Agreement of Sale against the

respondent/defendant. Plaintiff was examined himself as P.W.1

and marked Exs.A1 to A5 on his behalf. The defendant filed

written statement, but he has not Cross-examined P.W.1 and

also not entered into the witness box as D.W.1 and he has not

adduced any evidence on his behalf. The trial Court considering

the evidence of plaintiff and also the written statement filed by

the defendant, dismissed the suit.

3. In the written statement filed by the

respondent/defendant, he stated that he was not aware of the

appellant/plaintiff. He never executed Ex.A1, plaintiff never paid

Rs.4,50,000/- under Ex.A2 and thus the question of receiving

the balance sale consideration does not arise. The trial Court

after perusal of the record, held that as the

respondent/defendant denied the transaction of Rs.4,50,000/-,

it is for the appellant/plaintiff to prove the ownership of the

respondent/defendant and plaintiff has not examined any

attester to prove Ex.A1 and also not filed any document to prove

the ownership of the respondent/defendant and he has not

taken any steps to compare the signature of the

respondent/defendant on Ex.A1 with that of his signature on

Vakalath and written statement by sending them to the

handwriting expert and accordingly dismissed the suit.

Aggrieved by the said Judgment, plaintiff in suit preferred the

present appeal.

4. The learned Counsel for the appellant/plaintiff contended

that respondent/defendant remained exparte and not examined

P.W.1 and also not entered into the witness box. The evidence of

P.W.1 stands unrebutted. The trial Court instead of decreeing

the suit in his favour, erred in appreciating his evidence and

dismissed the suit. It is not for the appellant/plaintiff to prove

that respondent/defendant is the owner of the property.

Therefore, requested the Court to set aside the Judgment of the

trial Court.

5. Even in the present appeal, when the notice was sent to

the respondent/defendant, it was returned with an

endorsement 'party refused', as such heard the arguments of

the appellant Counsel and reserved the matter for 'Judgment'.

6. Perused the entire evidence on record and also the

documents filed before this Court. The Parties herein are

referred as plaintiff and defendant as arrayed in the trial Court

for the sake of convenience.

7. The defendant filed his written statement on 14.07.2009,

P.W.1 examined in-chief and marked Exs.A1 to A5 on

15.07.2011, but he was not Cross-examined by the defendant

Counsel even after the payment of costs, as such the right of

Cross-examination was forfeited on 25.11.2011 and the matter

was posted for defendant's evidence, but the defendant did not

enter into the witness box and thus his evidence was closed on

19.01.2012, and thus heard the arguments of the plaintiff on

24.02.2012 and reserved for 'Judgment', but it was re-opened

on 17.04.2012 and again reserved for 'Judgment' on 27.04.2012

and the Judgment was pronounced on 04.06.2012.

8. Plaintiff relied upon Ex.A1/Agreement of sale and stated

that he entered into an Agreement of Sale with the defendant on

24.04.2008 for a total sale consideration of Rs.23,60,000/- and

also paid Rs.4,50,000/- as advance on the same day, for which

receipt was also executed by the defendant under Ex.A2. He

agreed to pay the balance of Rs.19,10,000/- within three

months and defendant also agreed to hand over the relevant

documents of the suit schedule property under Clause - 6 of the

agreement, but the defendant failed to do so, as such he went to

the house of the defendant and requested him to receive the

balance sale consideration and execute a registered sale deed in

his favour, but the defendant refused to execute the registered

sale deed, as such he issued legal notice on 05.08.2008, in

which he mentioned the above facts in detail, but the said

notice was returned with an endorsement 'refused', as such he

filed the suit for Specific Performance on 22.08.2008. Though

the defendant filed written statement and denied the entire

transaction and execution of Exs.A1 and A2, he has not

Cross-examined P.W1 at any point of time. Even afterwards

when an opportunity was given to him to establish his defence,

he has not entered into the witness box. He has not adduced

any evidence on his behalf and arguments were also not

advanced on his behalf, but the trial Court appreciated the facts

erroneously and dismissed the suit.

9. The learned Counsel for the appellant/plaintiff also stated

that as per Section 114, III(g) of the Indian Evidence Act,

adverse presumption must be drawn against the defendant who

does not present himself for Cross-examination and refused to

enter into the witness box in order to refute allegations made

against him or to support his pleadings in his written

statement. For the same proposition, he relied upon the

decision of the Hon'ble Apex Court in the case of Vidhyadhar

Vs. Manikrao and another 1 and in the case of Iswar Bhai

C.Patel alias Bachu Bhai Patel Vs. Harihar Behera and

another 2. Even in this case, the defendant did not entered into

the witness box and has not made any statement in support of

his defence in the written statement, as such an adverse

inference has to be drawn against him that what was stated by

him in the written statement as not correct.

10. Merely because defendant denied his ownership and

stated that he has never seen the plaintiff and further stated

that he was in Mumbai on the date of Agreement of Sale, it

(1999) 3 SCC 573

(1999) 3 SCC 457

cannot be treated as gospel truth, it is for him to prove the same

by deposing before the Court and also to file relevant

documents, but he failed to do so. The appellant/plaintiff on the

date of agreement paid Rs.4,50,000/- as advance and also went

to the house of the defendant and requested him to receive the

balance sale consideration, but he refused to do so, as such he

issued legal notice to the defendant and the same was returned

with an endorsement 'refused' and thus he filed a suit for

Specific Performance of Agreement of Sale to show his bona

fides. Merely because he has not examined any attester, it

cannot be said that he is not entitled for Specific Performance of

Agreement of Sale. The Judgment of the trial Court is patently

erroneous and is liable to be dismissed.

11. In the result, the appeal suit is allowed with costs by

setting aside the Judgment of the trial Court dated 04.06.2012

in O.S.No.783 of 2008. The appellant herein is directed to

deposit the balance sale consideration within one month from

the date of this Judgment, on such deposit,

respondent/defendant is directed to execute the registered sale

deed in his favour. If he fails to do so, appellant/plaintiff is at

liberty to approach the concerned Court for execution of the

registered sale deed in his favour.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________ JUSTICE P.SREE SUDHA

DATE: 26.09.2023 tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

APPEAL SUIT No.633 of 2012

DATE: 26.09.2023

TRI