Periasamy vs Manoharan and Others

Pushpa Sathyanarayana, J.—The plaintiff in a suit for specific performance is the appellant.

The plaintiff has made his claim based on Exhibit A-1 dated 24.06.1997, which is an agreement to sell, as per which, the first respondent is alleged to have entered into an agreement with the plaintiff to sell the suit property for a sum of Rs. 18,500/- and an advance of Rs. 500/- was paid. It was agreed that the balance of the sale consideration would be paid within a period of 50 days from the date of the agreement. As the defendant was not coming forward to execute the sale deed in favour of the plaintiff, legal notice was issued by the plaintiff under Exhibit -A.2 on 11.07.1997, for which, there was no reply from the defendant. Hence the suit has been filed for specific performance.

The suit was resisted by the defendants on the ground that the first defendant has got no saleable interest in the suit property. The execution of the alleged agreement itself was denied by the defendants contending that the same was fabricated and created for the purpose of the suit and prayed for dismissal of the same.

Before the Trial Court, the plaintiff examined himself as PW-1 and two more persons, who signed as witnesses to Ex. A.1 were examined as PW-2 and PW-3 and Exhibits A1 to A5 were marked. On the side of the defendants, the first defendant examined himself as D.W. -1 and one another witness the scribe of A1 was examined as D.W. -2 and no Exhibit was marked on the side of the Defendants.

The trial Court after appreciating the evidence, has decreed the suit by judgment and decree dated 27.03.2002. On appeal, it was reversed by the lower Appellate Court/Subordinate Court, Dharmapuri in A.S. No. 48 of 2002. Being aggrieved by the said judgment, dismissing the suit, the plaintiff has filed the second appeal.

At the time of admission, the following questions of law were formulated as hereunder:

"(i) Whether the Lower Appellate Court is right in placing burden of proof on the plaintiff resolving the dispute?

(ii) Whether the evidence of scribe will prevail over the testimonies of attested witnesses to the document?

(iii)Whether it is lawful on the part of the Lower Appellate Court in eschewing Ex. A1 on the ground of payment of deficit stamp duty, when the position is that a contract for sale of immovable property may be either oral or in writing?"

The plaintiff who is the appellant, has the burden of proving the execution of Exhibit-A.1, as the defendants have denied the execution. Unless the plaintiff establishes the truth and genuineness of the agreement, the suit claim cannot be decreed in Exhibit. A.1.

It is claimed that there were five witnesses and scribe. Out of the five witnesses, two have been examined on the side of the plaintiff as P.W. 2 and P.W. 3 and the scribe was examined on the side of the defendant as D.W. 2. As such, it is clear that P.Ws 1 to 3 and D.W. 1 and 2 are all parties to Exhibit A.1. However, the oral evidence of the above persons are all mutually contradictory which have to be outweighed to decide the validity of Exhibit. A.1.

The learned counsel appearing for the appellant assailing the evidence of D.W. 2 contended that the evidence of the attesting witnesses would prevail over the evidence of the scribe. It was contended further that there is no material for the defendants to establish that it was only a loan transaction and not an agreement to sell. Further, the contents of the agreement clearly indicates that it is only an agreement and there is no relevant and adequate material to assail the Exhibit. A.1 and only the evidence of D.W. 2 was relied upon by the defendants.

According to the counsel for the respondent, Exhibit A1 was filled up at later point of time by D.W. 2, wherein, the signature of the plaintiff and the defendant were already there. A perusal of Exhibit. A.1 clearly shows that the contents of the documents is written in blue colour ink and the signature of the attestors and scribe are in black colour. During cross examination, D.W. 2 has specifically deposed that the father''s names of the witnesses and their village names were not written by him. D.W. 2 further has deposed that Exhibit. A.1 was written at his residence. However, according to D.W. 2, the signature of the defendant was already available on a blank paper on which he was asked to write the document. When he refused to write on the signed paper, he was convinced that the defendant had already signed and gone for work as he may lose the wage for one day. He has also stated that on both the pages of Exhibit. A.1, the signature of the plaintiff and the defendants were already there.

Per contra, the plaintiff as P.W. 1 at the time of cross examination has stated as follows:--

Vernacular Matter ommited here

The above evidence of P.W. 1 is totally contradictory to the evidence of D.W. 2. It is also relevant to advert to the evidence of P.W. 2 and P.W. 3. The evidence of P.W. 2 is to the effect that Exhibit. A.1 was executed at the first defendant''s residence. Thus, from the combined reading of the evidence of the witnesses, it is not clearly established by the plaintiff about the place of the execution of Exhibit. A.1.

In so far as the deficit stamp duty on Exhibit A.1 is concerned, the lower Appellate Court had concluded that the same has been executed on Rs. 5/- stamp paper instead of Rs. 10/- stamp paper. Hence, the same is unreliable. No doubt, the penalty for such deficit stamp duty may be directed to be paid to make good the deficit. As the execution of Exhibit. A1 itself is not proved in the manner known to law by the plaintiff, the said question is not gone into in this appeal.

The defendant has clearly and categorically stated that he had signed on blank papers with respect to the borrowal of money from the plaintiff which had been misused by the plaintiff. Thus, the evidence of P.W. 2 and P.W. 3 and that of D.W. 2 were all quite contradictory to each other which prove that the execution of A.1 is not true and correct.

It is a settled principle that specific relief is a discretionary relief which cannot be exercised by the Court when the facts pleaded and proved by the plaintiff are all untrustworthy and vague.

The Trial Court had erred in relying on the untrustworthy and vague evidence to grant the discretionary relief of specific performance in contravention to the mandate of Section 20 of Specific Relief Act.

It is useful to advert to the following portion of the decision of the Hon''ble Supreme Court in Parakunnan Veetill Joseph''s Vs. Nedumbara Kuruvila''s and Ors, AIR 1987 SC 2328 : (1987) 3 JT 643 : (1987) 2 SCALE 588 : (1987) 1 SCC 340 Supp : (1987) SCC 340 Supp : (1987) 2 UJ 449 wherein the Hon''ble Supreme Court has cautioned about the granting of relief of specific performance adverting to Section 20 of the Act.

"9. In Parakunnam Veetill Joseph''s Son Mathew v. Nedumbara Kuruvila''s Son this Court cautioned and observed as under (SCC p. 345, para 14)

"14. Section 20 of the Specific Relief Act, 1963 preserved judicial discretion to courts as to decreeing specific performance. The court meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff."

Following the same, in A.C. Arulappan Vs. Smt. Ahalya Naik, AIR 2001 SC 2783 : (2001) 6 JT 394 : (2001) 5 SCALE 154 : (2001) 6 SCC 600 : (2001) 2 UJ 1459 : (2001) AIRSCW 3046 : (2001) 5 Supreme 730 , it has been held as follows:

"15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court. The trial court, which had the added advantage of recording the evidence and seeing the demeanour of the witnesses, considered the relevant facts and reached a conclusion. The appellate court should not have reversed that decision disregarding these facts and, in our view, the appellate court seriously flawed in its decision. Therefore, we hold that the respondent is not entitled to a decree of specific performance of the contract."

In the case on hand, the plaintiff has placed his claim on Exhibit. A.1 whereas the defendants have stoutly denied the same and pleaded that it was a loan transaction. The lower Appellate Court being the final Court of facts has categorically held after elaborately discussing the facts and evidence that the execution of Exhibit A.1 was not proved. While exercising discretion to grant a relief of specific performance, the Court is duty bound to satisfy itself though the circumstances are such that it is equitable to grant a decree for specific performance. In such exercise, the lower Appellate Court has considered the circumstances of the case, the conduct of the parties and their respective interests under the contract. In the absence of any concrete evidence to establish the execution of Exhibit. A1, a decree for specific performance, if granted, would give unfair advantage to the plaintiff, when the claim of the defendants is that of loan transaction.

Even if a decree is passed in favour of the plaintiff, it would involve hardship on the defendant which would have been unforeseen. In other words, even if the contracts are void and the same is presumed to be established, if the court is of the opinion that the exercise of discretion will not be equal and fair, it may not do so.

In such circumstances, from a reading of the entire pleadings and evidence, it could be gathered that the plaintiff has not come up to the Court with clean hands. Though, it was admitted by the parties that the plaintiff had deposited the sale consideration prior to the filing of the suit to prove his readiness and willingness, having failed to establish the execution of agreement to sell, the same is rendered valueless. Accordingly, the questions of law are answered in the negative, confirming the judgment and decree of the lower Appellate Court.

In the result, the Second Appeal is dismissed and the judgment and decree dated 21.10.2008 passed in A.S. No. 48 of 2002 on the file of the Subordinate Court, Dharmapuri, reversing the judgment and decree dated 27.03.2002 passed in O.S. No. 354 of 1998 on the file of the District Munsif Court at Dharmapuri, are confirmed. No costs. Consequently, connected Miscellaneous Petition is closed.