Ajodhya Devi vs Madan Mohan Manna

Basudeva Panigrahi, J.—The unsuccessful Plaintiff in both the Courts is the Appellant in this case.

The Plaintiff filed a suit for specific performance of contract against the original Defendant on the ground that the latter had executed an agreement for sale of the suit property by taking an earnest money of Rs. 1,000.00 on November 27, 1971, vide Exhibit 1 and agreed to execute a deed of conveyance within May 21, 1972. When the original Defendant/Respondent avoided to execute the deed of conveyance, the Plaintiff/Appellant issued two registered notices on May 12, 1972, and May 19, 1972, vide Exhibits 2 and 2A which were duly received an acknowledged by the original Defendant vide Exhibit 4 and 4A.

Inspite of the fact of receipt of the registered notices, when the Defendant/Respondent failed to perform this part of contract by executing a deed of sale the Plaintiff, therefore, filed a suit for specific.

The original Defendant on the other hand had admitted to have received the consideration of Rs. 1,000.00 but had taken a plea that the amount of Rs. 1,000.00 was only by way of loan which was agreed to be payable within a period of three years and as a collateral security he put signature in one stamped paper and other in cartridge paper. The husband of the Plaintiff was then a railway employee, who used to advance loan to the different people by keeping such document as collateral security. Therefore, the document was never meant to be an agreement for sale, but was understood as a loan transactions.

The learned trial Court on consideration of evidence had, however, inclined to pass a decree for refund of the consideration amount of Rs. 1,000.00 said to have been advanced under Exhibit 1, but refused to pass a decree for specific performance of contract. The Plaintiff being aggrieved by and dissatisfied with the judgment and decree passed by the trial Court, preferred an appeal before the 4th Additional District Judge, Midnapore who while dismissing the appeal, held, inter alia, that the Defendant was also not liable to pay the consideration amount alleged to have been given by the Plaintiff. Therefore, the Plaintiff being aggrieved by the judgment and decree aforementioned, filed this appeal.

Mr. Roy Chowdhury, learned senior counsel appearing for the Appellant has submitted that the learned Courts below had gone wrong in not properly appreciating the evidence placed before them. It has been further contended that once the document had been proved by the Plaintiff/Appellant that the Defendant/Respondent had executed a deed of agreement and as a result whereof, he received a part consideration amount of Rs. 1,000.00 there was no way out than to pass a decree for specific performance of contract. He has also placed the judgment passed by the appellate Court as well as the trial Court. From the judgment of the trial Court it appears that the learned trial Court did not believe the case of the Plaintiff only on the ground why did she postpone coming to the Court for a period of two years and six months. Although the period of limitation for filing of the suit is three years, but it appears to be against natural human conduct to wait for such long time. I find the reason appears to be absurd, inasmuch as, when the limitation provided under the Indian Limitation Act to file a specific performance of contract is for three years, there is no reason that immediately a person will come to the Court to enforce the agreement for sale. In that case why would there be an agreement for sale and why not a deed of conveyance immediately?

Another reasoning has been assigned in the judgment that there were some corrections in the first and second page of the document and there had been no initial on those corrections. This reasoning of the trial Court also appears to be also a fallacy, inasmuch as, if a blank paper was to be utilised, then, there would have been a document without any correction. When there were some corrections in the document, those corrections must have taken place at the time of execution of the document. At the foot note of the document, the corrections had been noted. Therefore, in such situation, the above reasoning of the trial Court does not appear to be sound. I find P.W. 1 and P.W. 3 who are the to attesting witness as well as scribe describes in Exhibit 1, had been examined who supported the case of the appellant as regards the execution of the document. As against such oral evidence I find there has been a bold statement made by the defendant Respondent that he handed over two papers, one stamp paper and another cartridge paper. Those statements cannot outweigh the evidence produced by the Plaintiff. The payment of Rs. 1,000.00 has not been disputed by the Defendant. The Defendant himself purchased the stamp paper three days before the execution of the document vide Exhibit 1.

In another suit being O.S. No. 113/72 filed by the Respondent who was the Plaintiff, he was examined as P.W. 1. He stated that he never signed any deed without reading it. The deposition has been marked as Exhibit 5. There had been no explanation by the Defendant in what circumstance he made such statement in the above suit.

The Defendant has taken a plea of fraud and misrepresentation in so far as the execution of bainanama alleged to have been made by him, except the denial statement there has been no evidence worthwhile to disbelieve the Plaintiff''s case. The registration of agreement is optional. Merely because it was not registered, no presumption can be raised about the authenticity of the document. Mr. Roy Chowdhury has advanced an important point that when the Plaintiff much before the expiry of the date, issued registered notice to the Defendant calling upon him to execute a deed of conveyance, he should come forward to reply to the Plaintiff''s notice that he did not execute ''deed of painanama'', but blank papers had been given to her for the purpose of loan. The Plaintiff has not only mentioned n the plaint that she was and is ready and willing to perform her part obligation but also her husband p.m.2 stated on oath in Court.

The trial Court passed a decree directing the defendant to pay an amount of Rs: 1,000.00 alleged to have been given to him as loan, that too, was reversed by the appellate Court. It is understood that the Defendant/Respondent had not preferred any appeal against the said decree. The invocation of Order 41 Rule 33 of the CPC appears to be a misconception and has in fact no relevance in the case. Therefore, the appellate Court had illegally upset the findings of the trial Court which directed the payment of Rs. 1,000.00 to the Plaintiff/Appellant.

The next question arises as to whether this Court in this situation should remit back either to the appellate Court or to the trial Court to re-hear the matter. I find these is no necessity again to send back the case to the Courts below. The parties have already given evidence on all these issues. Therefore, this Court by using those evidences, can come to the conclusion in either way. As per discussion made above I find that the Plaintiff has proved the agreement said to have been executed by the Defendant for specific performance of contract of sale.

During the pendency of the appeal the sole Defendant died and in his place the legal heirs and representatives of the sole Defendant have been impleaded.

Therefore, since the Plaintiff was and is ready and willing to perform her part obligation, in such situation, I direct the legal representatives of the sole Defendant/Respondent to execute a deed of conveyance in favour of the Plaintiff pursuant to the agreement dated November 27, 1971, vide Exhibit 1 within a period of four months, failing which the Plaintiff is at liberty to take stops for getting the document registered through Court. Since none has appeared on behalf of the Defendant/Respondent, I am not inclined to direct the Respondent to pay cost. Accordingly, the Plaintiff''s suit is decreed without cost.

Accordingly, the appeal is allowed. The judgment and decree passed in Other Suit No. 27/74 and in Title Appeal No. 79/76 are hereby set aside.

Appeal allowed.