Basheer and Others vs Premdas

K.T. Sankaran, J.—The defendants in OS No. 293 of 2001 on the file of the Court of the Principal Subordinate Judge, Thrissur are the appellants. The suit was filed by the respondent for specific performance of Ext. A1 agreement for sale. The Trial Court decreed the suit. According to the plaintiff, Ext. A1 agreement for sale dated 02/12/2000 was executed between the plaintiff and the first defendant for a total consideration of Rs. 3,40,000/-. An advance amount of Rs. 1,65,000/- was paid by the plaintiff. The date for completion of the transaction was fixed as 25/03/2001. The agreement was signed by the second defendant on behalf of the first defendant as his power of attorney holder. The defendants committed default in executing the assignment deed. Therefore, the plaintiff sent Exts. A2 and A4 notices dated 13/03/2001 and 19/03/2001 respectively. Ext. A7 reply was sent by the second defendant in reply to Exts. A2 and A4. The second defendant also sent Ext. A6 letter dated 23/03/2001 to the plaintiff. The suit was filed on 30/03/2001.

Separate written statements were filed by the defendants. The sum and substance of the defence is as follows: On 31/05/1999, an agreement was executed between the plaintiff and the first defendant for sale of the same property for the same consideration and an advance of Rs. 1,65,000/- was paid by the plaintiff. That agreement was cancelled and destroyed since the plaintiff was not ready with the money to pay the balance consideration. Thereafter, another agreement dated 25/04/2000 was executed between the parties on the same terms and conditions as contained in the previous agreement. Again, the plaintiff could not arrange money for completing the transaction and on his request, the agreement was cancelled and destroyed. The sum of Rs. 1,65,000/- paid by the plaintiff was returned to the plaintiff in the presence of Gopi, the document writer (who was examined as DW 2). Ext. A1 agreement dated 02/12/2000 was not executed by the defendants and it is a fabricated document.

The defendants filed IA No. 1659 of 2005 to send Ext. A1 agreement to an expert for comparison of the signature therein with the admitted signature of the second defendant. The Trial Court dismissed that application by the order dated 31st March, 2005 on the ground that the evidence was over by that time.

Before the Court below, the plaintiff was examined as PW 1 and attesting witnesses to Ext. A1 agreement were examined as PWs 2 and 3. The second defendant was examined as DW 1 and the scribe who allegedly prepared the two earlier agreements was examined as DW 2.

The Trial Court held that the evidence of PWs 2 and 3 is believable and therefore, Ext. A1 agreement stood proved. However, the Court below did not rely on the evidence of DWs 1 and 2. The Court below also erroneously thought that the initial burden of proving Ext. A1 having been discharged by the plaintiff, the burden of proof is on the defendants to disprove it. We also do not find much discussion in the judgment as to why the evidence of PWs 2 and 3 was held reliable and the evidence of DW 2 was held not reliable. The evidence of DW 2 was discarded on the ground that "there is only a bald statement deposed by DW 2". There was no proper discussion by the Trial Court with respect to the oral and documentary evidence.

Certain subsequent events took place. At the instance of the second defendant, a criminal case was initiated against the plaintiff and another person as CC No. 131 of 2002, on the file of the Court of the Chief Judicial Magistrate Court, Thrissur, for the offences under Sections 465, 468, 471 and 420 read with Section 34 of the Indian Penal Code. The forgery alleged in that case was in respect of the same agreement for sale which was marked as Ext. A1 in the present suit. The Criminal Court found the first accused guilty of the offences and he was sentenced to imprisonment of various terms. The appellants/defendants produced the report submitted by the Scientific Assistant (Documents), Forensic Science Laboratory, Thiruvananthapuram as additional document under Rule 27 of Order XLI of CPC as per IA No. 5103 of 2002. The appellants/defendants also produced certified copy of the judgment in CC No. 131 of 2002 as additional evidence as per IA No. 457 of 2013. The respondent/plaintiff filed IA No. 459 of 2013 to accept the additional evidence and the following documents were sought to be received as additional documents:

(i) Certified copy of the order dated 10/05/2007 in Crl. MP No. 3152/2007 in CC No. 131/2002 on the file of Chief Judicial Magistrate Court, Thrissur.

(ii) The document list dated 11/06/2007 submitted by Deputy Director of Prosecution in CC No. 131/2002 on the file of Chief Judicial Magistrate Court, Thrissur.

(iii) Certified copy of the agreement for sale dated 02/02/2001 executed between 2nd appellant, Amru and Salma.

(iv) Certified copy of the evidence of PW 1 in CC No. 131/2002 on the file of the Chief Judicial Magistrate Court, Thrissur.

It is submitted by the learned counsel for the respondent that against the conviction and sentence, the plaintiff in the present case has filed Criminal Appeal No. 386 of 2011 and it is pending before the Court of the Additional Sessions Judge, Thrissur. We are of the view that the additional documents produced by both parties are liable to be accepted subject to proof in accordance with law. We are also of the view that the judgment of the Court below, even in the absence of the additional documents, is liable to be set aside. In the light of the subsequent developments, we are of the view that the matter requires a remand to the Trial Court for fresh consideration and disposal. IA Nos. 5103 of 2008, 457 of 2013 and 459 of 2013 along with the additional documents produced by both sides shall be forwarded to the Trial Court, after keeping a photocopy of the same in the judges papers kept in the High Court.

In the result, the judgment and decree appealed against are set aside and the case is remanded to the Trial Court for fresh disposal in accordance with law. The additional documents shall be accepted by the Court below subject to proof. It is made clear that we have not expressed any opinion on the probative value of the additional documents. Both parties will be entitled to adduce further evidence in the case and both parties will be entitled to apply for comparison by an expert, of the signature in Ext. A1 agreement with acceptable comparable documents. IA No. 1659 of 2005 shall be considered by the Court below afresh and if the defendants were to press the request, the Court below shall allow the same. However, if an expert is to be appointed, the Court below shall prefer experts in Forensic Science Laboratory or experts in a Government controlled institution. The court-fee paid on the memorandum of appeal shall be refunded to the appellants.

The parties shall appear before the Court below on 12th January, 2015.