Ajay Enterprises Ltd. and Others vs Sunder Dass and Others

Permod Kohli, J.—This judgment will dispose of R.S.A. Nos. 3403 to 3405 of 2003 which arise out of judgments and decrees dated

07.01.2000 and 03.12.2002 passed by the Civil Judge (Jr. Division), Gurgaon and the District Judge, Gurgaon. respectively.

Plaintiff/appellant herein has suffered impugned judgments and decrees on account of its own lapse of not producing any evidence in the cases.

Plaintiff filed three suits for possession by specific performance in the trial Court. Civil Suit No. 175 of 1995 was instituted in respect to land

measuring 16 kanals. Suit No. 174 of 1995 was for land measuring 14 kanals and suit No. 173 of 1995 was for land measuring 15 kanals. It is

alleged that defendant No. 1 executed three agreements to sell, all dated 01.04.1994. In each case the sale considerations were fixed at Rs.

7,20,000/-. An amount of Rs. 72.000''-was paid as advance against each transaction against proper receipts. Suit for possession by specific

performance was filed in the trial court on the basis of an agreement to sell dated 01.04.1994. It has been alleged in the plaints filed in all the suits

that defendant No. 1 agreed to sell the plots of land detailed in the plaints for a consideration of Rs. 7,20,000/- in each case and executed

agreements to sell, all dated 01.04.1994. An amount of Rs. 72,000/- was paid as advance money in each case against a proper receipt. Defendant

No. 2 is the witness to all the agreements. Balance sale consideration was agreed to be paid at the time of execution of the sale deeds. Defendants

No. I was required to obtain necessary permission and clearance from Income Tax Authority and other authorities required for transfer of the land.

It is further stated in the plaints that defendant No. 1 was required to intimate plaintiff by registered post regarding grant of necessary permission

and plaintiff would get the sale deeds executed within one month or by 3rd of April, 1994 which ever be later. Possession of the plots of land was

required to be handed over to the plaintiff at the time of execution and registration of the sale deeds. It is alleged that representative of the plaintiff

requested to obtain requisite clearance and inform him through registered post. It is further stated that on 14.07.1995. plaintiff advanced another

amount of Rs. 4.00 lacs against each agreement on latter''s request against proper receipts but the defendant has not informed the plaintiff

regarding necessary clearance and permission. It is further stated that a legal notice was also served upon defendant No. 1, but without any

response. Plaintiff has further stated that he is still ready and willing to pay the balance sale consideration. On being summoned, defendants filed the

written statement denying the execution of the agreements as also the receipts for the amounts of earnest money of Rs. 72.000/- and Rs. 4.00 lacs

in each case, respectively. They even denied the existence of the agreements and alleged that the same are result of fraud, manipulation and are

forged and fabricated. It was pleaded that the agreements appear to have been forged on the basis of blank papers misused by one Rama Nand,

Advocate who had purchased the adjacent land from the defendants in the year 1960 and has constructed a house thereon. Said Rama Nand is

said to have developed good neighborly relations with the defendants and had misused the fiduciary relation by obtaining thumb impressions and

signatures of defendant No. I on blank papers. The agreements are also said to be without consideration as the defendant never received the

advanced amount or agreed to sell the land. On the basis of the pleadings of the parties, the trial court framed following issues:-

1) Whether the defendant No. 1 agreed to sell the suit land vide agreement dated 01.04.1994 in favour of plaintiff? OPP

2) Whether decree dated 10.10.1994 regarding suit land suffered by defendant No. l in favour of defendants No. 2 to 15 is illegal, null and void?

OPP

3) Whether the defendant failed to perform his part of contract? OPP

4) Whether the plaintiff is still ready and willing to perform his part of contract? OPP

5) Whether the suit land is ancestral joint Hindu Family property of defendants? OPP

6) Whether the suit is false and frivolous? OPD

7) Whether the plaintiff has no cause of action to file the suit? OPD

8) Whether the plaintiff has no cause of action to file the suit? OPD

9) Whether the plaintiff has no locus standi to file the present suit? OPD

10) Whether the suit is not maintainable in the present form? OPP 10 Relief.

On framing of the issues, plaintiff was required to lead its evidence, but the plaintiff failed to produce any evidence and consequently, the

evidence of the plaintiff was closed under Order 17 Rule 3 CPC. On 07.01.2000, defendants also stated that no evidence is required on their

behalf as the plaintiff has chosen not to prove its case. Accordingly, after closing defendants'' evidence, the trial court dismissed all the three suits

with costs on the same day.

Aggrieved of the judgments and decrees, plaintiff tiled Civil Appeals No. 21. 20 and 19 dated 23.02.2000, respectively in the Court of District

Judge, Gurgaon. These appeals also resulted in dismissal vide judgments and decrees dated 03.12.2002.

Mr. A.M. Punchhi, appearing on behalf of the plaintiff has submitted that both the courts below have failed to appreciate the impediments that

prevented the plaintiff from producing its evidence. He has stated that the Executive of the Plaintiff had gone to London and all the documents were

in his possession and thus, plaintiff could not lead its evidence. According to the Learned Counsel, adequate opportunities have not been afforded

to the plaintiff to lead evidence. Appellants had produced inter locutory orders passed by the trial Court in the suits. Sequence of opportunities has

also been noticed by the learned District Judge in the impugned judgments. From the interlocutory orders, it appears that issues were framed on

24.02.1997 and the next date was fixed on 08.09.1997 for the evidence of the plaintiff. However, the Presiding Officer was to proceed on leave

and the case was proponed on 06.09.1997 and adjourned to 1 1.03.1998 for the same purpose. Admittedly, no list of witnesses was filed by the

plaintiff. On the adjourned date i.e. 11.03.1998, no witness was present and the case was adjourned to 28.10.1998 subject to payment of costs

of Rs. 200/-. On the adjourned hearing also, no witness was present. It is recorded in the order that no reason has been given for adjournment, but

the case was adjourned to 23.02.1999 with last opportunity to lead his evidence. On the adjourned hearing, counsel for the plaintiff requested for

adjournment on the ground that he could not communicate to the plaintiff to bring evidence. Accordingly, the case was adjourned to 04.05.1999

asking the plaintiff to bring evidence at its own responsibility and last opportunity was kept intact. On the adjourned date of hearing, medical

certificate Was produced by one Sh. Jeevan Mehrotra, authorised representative of the plaintiff and adjournment was sought on account of his

illness. The case was accordingly adjourned to 01.09.1999 with last opportunity. On the adjourned date of hearing also, another medical

certificate was produced and the case was further adjourned to 24.11.1999, subject to costs of Rs. 1,000/- with clear indication in the order that

no opportunity will be granted. As a matter of fact, a pre-emptory order came to be passed that in case the plaintiff fails to bring his evidence on

the next date, it shall be deemed to be closed. On the adjourned date of hearing, again no evidence was produced and on the statement of

Learned Counsel for the plaintiff that negotiations for compromise were going on, case was adjourned to 07.01.2000 as last opportunity. On the

adjourned hearing again, no evidence was produced and request for adjournment was made on the ground that the Director of the Plaintiff

Company has gone to London and he was supposed to come back on 06.01.2000, but due to some reason he could not come and the documents

were in his possession. Without documents, no witness can be examined. This request was declined and the evidence was closed in terms of

Order 17 Rule 3 CPC. On the same every day, counsel for the defendants also made a statement that no evidence is to be led on defendant''s

behalf. After recording this fact in the order, the trial court proceeded to decide the suits and in absence of any evidence to prove any of the issues,

all the three suits have been dismissed. The Appellate Court has noticed all these facts in detail and with due application of mind declined any

indulgence. The Appellate Court not only upheld the order of the trial court closing the evidence but consequently affirmed the judgments and

decrees vide its judgments and decrees dated 03.12.2002.

I have heard Mr. Punchhi and Mr. C.B. Goel, Learned Counsel for the appellants and the respondents, respectively. Mr. Punchhi has argued

that failure to grant adequate and effective opportunity to the plaintiff to lead evidence itself amounts to substantial question of law. 1 have

considered the judgments impugned herein. I have also carefully gone through the interlocutory orders reproduced in the memo of appeal. From

the interlocutory orders, it appears that sufficient opportunities were afforded to the plaintiff to lead evidence. But the plaintiff has failed to

discharge its obligation to prove its cases, by leading necessary evidence. Even the lists of witnesses were not filed within prescribed time. Plea

raised by the appellant that its Executive Mr. Mehrotra was unwell and could not appear. Two opportunities were obtained on this ground. At that

time, the plaintiff had not taken any plea that the documents were in possession of Shri Raman Sood director or the company who was away to

London to see his ailing father. Even if it is assumed that the Director of the Company was away to London, to visit his ailing father, he could not

have taken the record of the Company with him. Agreements to sell which are normal commercial transactions are not supposed to be in personal

custody of the Director, but must be available with some junior official of the Company. No details have been given in the memo of appeal as to

when Sh. Raman Sood, Director left for London and when he came back. Not only this, no effort was made to produce the documents before the

Appellate Court nor any application under Order 41 Rule 27 CPC was filed. As a matter of fact, there has been failure on the pan of the plaintiff to

lead evidence. No justifiable ground has been shown. There is no circumstance which may even remotely suggest the circumstances beyond the

control of the plaintiff. I am of the considered view that under the given facts and circumstances, the order of the trial court closing the evidence of

the plaintiff/appellant and that of the appellate court do not [ suffer from any infirmity, legal or factual. Plaintiff was granted adequate and effective

opportunities to lead evidence, but he failed to do so. No substantial question of law arises in these appeals which are accordingly dismissed.

A copy of this order be placed on record of each connected file.