K. Radha vs Chandra

Honourable Mr. Justice V. Periyakaruppiah

This Second appeal has been preferred against the decree and judgment passed by the 1st appellate Court made in A.S. No. 99 of 1996, by allowing the appeal and setting aside the judgment and decree passed by the trial Court in O.S. No. 145 of 1994, in decreeing the suit. The appellant herein is the plaintiff before the trial Court, who succeeded in a suit for specific performance, however, the appeal preferred by the respondent/1st defendant before the 1st appellate Court in A.S. No. 99 of 1996 was allowed and the suit filed by the appellant/plaintiff was dismissed. Aggrieved by such decision of the 1st appellate Court, the plaintiff has preferred the 2nd appeal.

The brief facts of the case of the plaintiff before the trial Court are as follows:

The suit scheduled property is belonging to the 1st defendant. They have entered into a sale agreement in respect of the suit property for a sale consideration f Rs.35,000/-and on 24.08.1989, the plaintiff paid a sum of Rs.2,000/-as advance. On that basis, the 1st defendant handed over the possession to the plaintiff and from that day onwards, the plaintiff is enjoying the possession of the suit property. Out of the balance amount of sale price Rs.33,000/-, Rs.3,600/-has been paid on 20.04.1990 by the plaintiff in the presence of witnesses Kuppusamy and Subramanian and on 12.12.1991, he paid a sum of Rs.5,000/-in the presence of the witnesses Narayanan and Thiyagarajan and got the acknowledgment in the sale agreement. The plaintiff is always ready and willing to pay the balance sum of Rs.24,400/-and to get the sale deed of the suit property. Even though the plaintiff has sent legal notice on 30.08.1990 stating that he is ready and willing to pay the balance amount and to get the sale deed of the suit property, the 1st defendant had sent reply with false allegations, wherein it has been stated that even though on 08.03.1991 the plaintiff was waiting in the house of the 1st defendant, the 1st defendant did not came there and since, his inability to execute the agreement, as per the agreement entered before the panchayat, the 1st defendant received a sum of Rs.5,000/-from the plaintiff and on 12.12.1991, he made an endorsement to that effect. Thereafter also, at the instigation of the 2nd and 3rd respondents, the 1st defendant did not execute the sale deed in favour of the plaintiff.

The contentions of the 1st defendant before the trial Court would be thus:

It is true that on 24.08.1989, there was a sale agreement in respect of the suit property had between the plaintiff and the 1st defendant. On that day, an advance of Rs.2,000/-only was received and 4 subsequently, no amount has been received from the 1st defendant. It is not the fact that the plaintiff has paid Rs.3,600 and Rs.5,000/-to the 1st defendant on 20.04.190 and 12.12.1991 respectively. The 1st defendant neither received any amount nor put any signature. the plaintiff never taken any steps to pay and balance amount and got the sale deed registered and no panchayat has been convened to that effect. The 1st defendant sent reply notice on 25.09.1990 to the legal notice dated 30.08.1990 sent by the plaintiff and he sent another reply dated 26.02.1991 for the rejoinder sent by the plaintiff on 08.10.1990. It is against the fact that on 08.03.1991, the plaintiff was waiting in the house of the counsel for the 1st defendant. On that day, neither the plaintiff nor his men came to the house of the 1st defendant. Since, the plaintiff being a woman and there is no support for her except her father, with the intention to cheat the 1st defendant, the plaintiff and her husband have created forged document as if they paid amount to the 1st defendant. There is no connection between the case and the defendants 2 and 3. The suit is barred by limitation and hence, he prayed for the dismissal of the suit.

The trial Court had framed necessary issues and had examined the witnesses P.Ws.1 to 4 on the side of the plaintiff and D.W.1/the 1st defendant on the side of the defendant and had admitted Exs.A1 to A10 and Ex.B1 and Exs.C1 and C2 and after perusal of such evidence, had come to the conclusion to decree the suit as prayed for.

The 1st defendant preferred the appeal against the judgment and decree passed by the trial Court in A.S. No. 99 of 1996 and the same was allowed with cost and thereby, the judgment and decree of the trial Court were set aside and the suit was dismissed with cost and hence, the second appeal has been brought forth before this Court by the plaintiff.

At the time of admission, the following substantial questions of law were formulated by this Court:

Whether the view taken by the learned appellate Judge in holding that a suit is barred by limitation is sustainable under law?

Heard Mr.S.Natarajan, learned counsel appearing for the appellant and Mr.S.Parthasarathy, learned counsel appearing for the respondent on the said question of law.

The learned counsel appearing for the appellant/plaintiff would submit in his argument that the suit was originally filed by the plaintiff seeking for specific performance of the sale agreement dated 24.08.1989 and the plaintiff was very much willing to perform her part of the contract by paying the balance sale price amount and got the sale deed executed in his favour and on her evidence produced before the trial Court, the said Court had decreed the suit as prayed for by the plaintiff and the plaintiff was directed to deposit a sum of Rs.24,400/-within a period of 10 days and on such deposit of the said amount, two months period was given to the 1st defendant, to execute the sale deed and in default, the trial Court was directed to execute the sale deed on behalf of the 1st defendant. He would also submit that the cost of the suit was directed to be borne by both the parties.

He would further submit that while coming to the conclusion of directing the 1st defendant to execute the sale deed, the learned trial Judge had found that the plaintiff was always ready and willing to perform her part of the contract and the claim of specific performance was within time and the plaintiff has proved her case regarding the payment of the balance sale consideration and the receipts given by the 1st defendant are true and genuine. He would further submit that the findings of the learned trial Judge were sound and based upon the evidence adduced by the plaintiff. However, the learned 1st appellate Court had not discussed the evidence adduced by the plaintiff regarding the execution of the receipts issued by the 1st defendant in Exs.A2 and A6 and the findings of the 1st appellate Court were perverse and predetermined and it could be seen from the judgment of the 1st appellate Court itself. He would further submit in his argument that the 1st appellate Court had not discussed the evidence, which are to be discussed jointly, but had separately discussed the connected and joint issues and had caused miscarriage of justice.

He would further submit that the subsequent payment and endorsement made on 12.12.1991 would extent the period of limitation and when the suit is well within time, it cannot be found by the 1st appellate Court that time was essence of the contract. He would also submit that the signatures found in Exs.A2 and A6 were very much proved by the examination of witnesses on the side of the plaintiff and without any fault found by the lower Court, the signatures found in Exs.A2 and A6 cannot be held as not proved. He would also submit that the signatures of the 1st defendant found in Exs.A2 and A6 were not belonging to the 1st defendant without any expert''s opinion and evidence. He would further submit that the plaintiff has categorically proved her readiness and willingness through her evidence and the lower appellate Court had come to a wrong conclusion on the basis of a limitation and thereby, reversed the judgment of the trial Court without any reasons.

He would also cite the judgments of the Hon''ble Apex Courts reported in 2006 (4) CTC 79 (SC) between Maria Colaco and Another Vs. Alba Flora Herminda D''Souza and Others, , (2009) 17 SCC 467 between Dinesh Kumar Vs. Yusuf Ali, in support of his argument that the High Court can interfere with the findings regarding the fact of the 1st appellate Court u/s 100 C.P.C., when the judgment of lower appellate Court was found to be perversed. He would therefore request the Court that the judgment and decree passed by the lower appellate Court in setting aside the judgment and decree of the lower Court may be set aside and the judgment and decree passed by the trial Court may be restored and thus, the second appeal may be allowed.

The learned counsel appearing for the respondent would submit in his argument that the 1st appellate Court had correctly come to the conclusion of finding the fact that the signatures of the 1st defendant in Exs.A2 and A6 were not belonging to the 1st defendant. He would further submit that the said signatures were forged by the plaintiff even after the exchange of notices in between the parties and the evidence adduced by the plaintiff for the proof of the said execution of endorsement. Exs.A2 and A6 will not in any way cure the defect in those endorsements. He would further submit that the Court can compare the signatures with the aid of handwriting expert u/s 45 of the Evidence Act, and to come to an independent conclusion. He would further submit that the expert''s opinion is a peace of evidence to come to any conclusion and it is not final to reach any decision. Therefore, he would submit that the argument of the learned counsel appearing for the appellant that the genuineness of signatures should be decided only on the report of the handwriting expert cannot be sustained. He would further submit in his argument that the trial Court was wrong in deciding the truth and genuineness of Exs.A2 and A6 and the 1st appellate Court had completely appraised the evidence adduced by both the parties and had come to a conclusion that those endorsements were not made by the 1st defendant. It is a finding on a fact, which resulted in deciding the issue on lack of limitation. He would therefore submit that such finding of the fact by the 1st appellate Court cannot be disturbed in the 2nd appeal by the High Court. He would rely upon a judgment of the Hon''ble Apex Court reported in Dudh Nath Pandey (Dead) by Lrs Vs. Suresh Chandra Bhattasali (Dead) by Lrs, for the principle that the finding recorded by the 1st appellate Court cannot be disturbed by the High Court in the exercise of the power u/s 100 C.P.C. He would further submit in his argument that the 1st appellate Court had elaborately discussed the issues and had come to the conclusion that the suit is not filed within the period of limitation and the plaintiff is not entitled to the relief of specific performance and the endorsements in Ex.A2 and A6 did not bear the signatures of 1st defendant and therefore, the said factual aspects cannot be disturbed in this appeal. He would therefore, request the Court to dismiss the 2nd appeal by confirming the judgment of the 1st appellate Court.

I have given anxious thoughts to the arguments advanced on either side.

The suit was laid by the appellant/plaintiff seeking for the relief of specific performance on the foot of sale agreement dated 24.08.1989 and the said suit was decreed by the trial Court after a full fledged trial. The trial Court had come to the conclusion that the 1st defendant was liable to execute the sale deed as per the said sale agreement and the plaintiff did not fabricate the documents as contended in the written statement filed by the 1st defendant and the plaintiff was always ready and willing to perform her part of the contract and the case of the 1st defendant that she would not ready and willing to get the sale deed was not correct.

According to the case of the plaintiff, the sale price for the suit property was fixed at Rs.35,000/-and the 1st defendant had received a sum of Rs.2,000/-and thereafter on 20.04.1990, a sum of Rs.3,600/-was paid by the plaintiff in the presence of two witnesses viz., Kuppusamy and Subramanian to the 1st defendant and the 1st defendant had received the sum and made an endorsement in the sale agreement and thereafter, on 12.12.1991, a sum of Rs.5,000/-was paid by the plaintiff to the 1st defendant and endorsement was made by the 1st defendant in the sale agreement itself and the plaintiff was always ready and willing to pay the balance sum of Rs.24,400/-and to get the sale deed of the suit property. However, the 1st defendant had contended that the 1st defendant did not receive any amount from the plaintiff other than the advance amount of Rs.2,000/-paid to her on 24.08.1999.

The trial Court had appraised the evidence produced by the plaintiff through P.Ws.2 to 4 and herself as P.W.1 and had come to the conclusion that the 1st defendant had received a sum of Rs.3,600/-on 20.04.1990 and made an endorsement on the sale agreement in Ex.A2 and another sum of Rs.5,000/-on 12.12.1991 and made an endorsement in the sale agreement marked as A6 and found that the plaintiff was always ready and willing to perform her part of the contract and was entitled for specific performance.

However, the 1st appellate Court had found that the suit was not filed within the period of limitation since the time limit given for execution of sale deed was over by 15.06.1990 and the same was extended upto 08.03.1991 as per Ex.A5 and there was no balance sale consideration was paid on or before the said date towards the execution of sale deed and the period of limitation starts from the said date and three years period would be over by 07.03.1994, but, the suit was laid only on 13.09.1994 and therefore, it was not within the time. After finding the said point, the 1st appellate Court had come to the discussion of the readiness and willingness on the part of the plaintiff and found that the plaintiff was not ready and willing to perform her part of the contract and therefore, the plaintiff was not found to have entitled for a specific performance. Thereafter, the 1st appellate Court had discussed the truth and genuineness of the endorsement made in Exs.A2 and A6 and found that the signatures found in Exs.A2 and A6 did not belong to the 1st defendant and therefore, no amount was paid by the plaintiff to the 1st defendant to an extent of Rs.3,600/-to Rs.5,000/-on those dates.

The serious contentions raised by the learned counsel appearing for the appellant/plaintiff was that the finding of the learned 1st appellate Court was apparently perverse since he had decided the truth and genuineness of the documents except Exs.A2 and A6 as the last point, but, the truth and genuineness of the said payment and the endorsement would have serious impact in the earlier points viz., law of limitation and the proof of readiness and willingness of the plaintiff to perform her part of the contract. The 1st appellate Court had actually decided the point of limitation in the 1st point. No doubt, the law of limitation has been decided by the 1st appellate Court in favour of the defendant, to dismiss the suit filed by the plaintiff in the 1st appeal. The judgment of the Hon''ble Apex Court reported in Dudh Nath Pandey (Dead) by Lrs Vs. Suresh Chandra Bhattasali (Dead) by Lrs, would be quite clear on this point. The relevant passage would run as follows:

The High Court however reversed the finding of the First Appellate Court on the question of limitation relying on the so-called admission of the defendant in the written statement and the evidence of the witnesses produced on behalf of the defendant. Virtually, the High Court has made a fresh appraisal of the evidence and has come to a different finding contrary to the finding recorded by the First Appellate Court which the High Court could not do in the exercise of power under S.100 of the Civil P.C.

According to the said judgment of the Hon''ble Apex Court, I could find that even in case all the facts decided by the 1st appellate Court is final and the judgment of the 1st appellate Court is found to be perverse, then the High Court can interfere in the findings of the 1st appellate Court and set aside the same and accordingly, this Court has to satisfy whether the finding of the 1st appellate Court is perverse so as to invoke the judgment of Hon''ble Apex Court as cited by the learned counsel for the appellant. When, I perused the judgment of the 1st appellate Court, I could see that the law of limitation in respect of the sale agreement dated 24.08.1989 could be applied with the contents of the said sale agreement as well as the endorsement made therein. According to the case of the plaintiff, the advance amount of Rs.2,000/-was paid on the date of sale agreement viz., 24.08.1989 and thereafter on 20.04.1990, a sum of Rs.3,600/-was paid towards the sale price and an endorsement was made by the 1st defendant in the sale agreement and thereafter, on 12.12.1991, a sum of Rs.5,000/-was paid by the plaintiff to the 1st defendant and an endorsement was made on the sale agreement. Both the said endorsements are stated to have executed by the 1st defendant in the sale agreement entered into between parties. The said endorsement were not accepted by the 1st defendant. For that the plaintiff had examined herself as P.W.1 and witness for those endorsement as P.Ws.2 to 4, the trial Court had relied upon the evidence of those witnesses and found that the endorsement made in sale agreement in Exs.A2 and A4 were truly put by the 1st defendant for receiving the sum of Rs.3,600/-a sum of Rs.5,000/-respectively by the 1st defendant. If those endorsements are found to be true as done by the trial Court, the period of limitation stated to have been lapsed on 08.03.1991 would extend from the last payment of Rs.5,000/-made on 12.12.1991. In such circumstances, the suit ought to have been filed on or before 11.12.1994. It is an admitted fact that the suit was filed on 13.09.1994. If both the endorsements said to have been made by the 1st defendant on 20.04.1990 and 12.04.1991 are found to be true, the suit ought to have been filed well within time. However, the 1st appellate Court did not discuss the point in respect of the truth and genuineness of Exs.A2 and A6 along with the point of limitation. On the other hand, it did not touch the point of truth and genuineness of Exs.A2 and A6 in the 1st point viz., the law of limitation and decided that the suit was not filed within the time. The truth and genuineness of Exs.A2 and A6 is very much connected with the issue of law of limitation, but, it has not been discussed along with the point of law of limitation or the said point was discussed earlier so as to reach a conclusion for the point of law of limitation as a consequently decision.

Similarly, the point in respect of the readiness and willingness on the part of the plaintiff would be discussed as a last point depending upon the point regarding the truth and genuineness of Exs.A2 and A6, but, it was not discussed earlier and the readiness and willingness on the part of the plaintiff was found to be negatived without the genuineness of Exs.A2 and A6. These discussions held by the 1st appellate Court would go to show that the said Court had predetermined the point of law of limitation, which is a perverse one, which would certainly defeat the right of the plaintiff. If for any reason, the 1st appellate Court has come to the conclusion that Exs.A2 and A6 were not genuine documents and therefore, they would not extend the property of limitation and the suit would be liable to be dismissed, the Judgment of the Hon''ble Apex Court reported in 1986 SC.. would apply. But, having decided the matter of law of limitation, and thereafter to decide the truth and genuineness of Exs.A2 and A6, which are very much material for deciding the limitation issue as certainly not appreciable. Moreover, the 1st appellate Court has not considered the evidence given by P.W.1, but P.W.4 regarding the execution of endorsement made in Exs.A2 and A6 are to reject the evidences of P.Ws.1 and 4 in respect of such execution of the endorsement after receiving their respective sums of Rs.3,600/-and Rs.500/-.

In the said circumstances, the finding reached by the 1st appellate Court in all the three points are perverse and therefore, the 1st appellate Court''s judgment cannot be taken as conclusive regarding the facts decided by it. The evidence of P.Ws.1 to 4 would categorically go to prove the execution of Exs.A2 and A6 and the trial Court, which had the occasion of noting the demoner of the witnesses and parties had exercised its discretion and have come to the conclusion of decreeing the suit in favour of the plaintiff. The said discretion exercised by the trial Court was not found not sustainable by the 1st appellate Court in its judgment.

Therefore, I could see that the judgment of the Hon''ble Apex Court reported in 2006 (4) CTC 79 (SC) between Maria Colaco and Another Vs. Alba Flora Herminda D''Souza and Others, (2009) 17 SCC 467 between Dinesh Kumar Vs. Yusuf Ali, are squarely applicable to the present case. The relevant portion in Maria Colaco and Another Vs. Alba Flora Herminda D''Souza and Others, would run as follows:

It is true normally that in the second appeal the High Court should not interfere on the questions of fact. But if on the scrutiny of the evidence it is found that the finding recorded by the first appellate court is totally perverse then certainly the High Court can interfere in the matter as it constitutes the question of law

The relevant portion in (2009) 17 SCC 467 between Arumaraj Devadhas Vs. K. Sundaram Nadar (dead by LRs. and Others, would run as follows:

The High Court has focused on the crucial issue and found that the findings of the first appellate court that the deed dated 01.08.1946 is sham and nominal was totally without basis. Consequently, it rightly interfered with the said finding as wholly unwarranted. We, therefore, find no reason to interfere with the judgment of the High Court.

The relevant portion in Dinesh Kumar Vs. Yusuf Ali, would run as follows:

In such a fact situation, we do not find any fault with the judgment of the High Court that it has committed an error in reaching the conclusion that the findings recorded by the first appellate court were perverse.

Therefore, I am of the considered view that the 1st appellate Court''s judgment and decree are perverse in nature and were not legally sustainable and there was no reason mentioned by the said Court to reverse the judgments of the trial Court. The trial Judge has considered the evidence and exercised its discretion promptly and had decreed the suit and I find no valid points in the judgment of the 1st appellate Court to set aside the same. Therefore, I am of the considered view that the judgment and decree passed by the 1st appellate Court are liable to be set aside and the judgment and decree passed by the trial Court are restored. With the above said observations, the second appeal is allowed. However, the parties are directed to bear their respective costs.