IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 330/1998 Reserved on: 5.8.2011 Decided on:16.8.2011 ___________________________________________________ Sant Ram. …Appellant. Versus Sucha Singh and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : In person. For the Respondents : Mr. R.K. Gautam, Senior Advocate with Ms. Archana Dutt, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 22.7.1998 rendered by the learned District Judge, Solan Camp Court at Nalagarh, District Solan, in Civil Appeal No.44-NL/13 of 1997. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondents- plaintiffs (hereinafter referred to as ‘plaintiffs’ for convenience sake) instituted a suit for possession by way 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 of specific performance of contract/agreement of sale dated 31.5.1991 Ex.PW-1/A with consequential relief of permanent injunction. According to the plaintiffs, the subject matter of the suit was land measuring 5 bighas 2 biswas comprised in Khewat/Khatauni No. 47/52 bearing Khasra No. 254 situate in village Jhajra, Pargana Plassi, Tehsil Nalagarh, District Solan (hereinafter referred to as ‘suit land’). According to the plaintiffs, the appellant- defendant (hereinafter referred to as ‘defendant’ for convenience sake) offered to sell the suit land to them for a consideration of ` 52,000/- and the said offer was accepted by the plaintiffs and in consequence thereof, an agreement to sell dated 31.5.1991 was executed between the parties. The plaintiffs advanced a sum of ` 2,000/- to the defendant in the presence of attesting witnesses and the defendant agreed to execute a registered sale deed in favour of the plaintiffs by 15.12.1991. According to the plaintiffs, 14.12.1991 and 15.12.1991 were holidays and the court and office of the Sub Registrar were closed. Plaintiffs issued registered notice to the defendant on 10.12.1991 to come and be present on 13.12.1991 to perform his part of agreement, however, the defendant did not turn up on that day and the plaintiff remained waiting for him throughout the day and as a token of his 3 presence, he got an affidavit attested from the Executive Magistrate, Nalagarh in this regard on 13.12.1991 vide Ex.PW-1/C. Thereafter, the plaintiff came to Nalagarh on 16.12.1991 and the defendant was also present. Plaintiffs paid a sum of ` 6,360/- to the defendant for purchase of stamp papers for execution of sale deed, which he accordingly purchased from the Government Treasury. Thereafter, sale deed of the suit land was prepared by Raj Kumar, Document Writer (PW-2) and the sale deed was presented by the defendant before the Sub Registrar for registration on 16.12.1991. However, the sale deed was returned by the Sub Registrar as one of the purchasers did not file copy of jamabandi regarding his agricultural land, as required under law. The sale deed was duly signed by plaintiff No.1 and defendant in the presence of witnesses and its carbon copy, duly signed by the parties and attesting witnesses, was also prepared. Thereafter, the plaintiffs procured the copy of jamabandi and requested the defendant to present the sale deed for registration before the Sub Registrar, but the defendant refused to do so. On 17.12.1991, defendant refused to perform his part of agreement and demanded more money and left the court premises. Thereafter, plaintiffs requested the defendant to perform his part of agreement 4 as the plaintiffs were ready to perform their part of agreement but in vain. According to the plaintiffs, they are in actual physical possession of the suit land and they were ready and willing to perform their part of agreement. 3. Suit was contested by the defendant. According to him, the suit was not maintainable. According to him, the suit was vexatious, false, illegal and mala fide with dishonest ulterior motive to cheat and black mail the defendant. According to him, material facts have been concealed from the court. According to him, plaintiffs got the sale deed prepared as self serving fraudulent and illegal purposes in Hindi script, which was not known to the defendant. They did not have the sufficient funds. Plaintiffs falsely and fraudulently stated in the so-called sale deed that the money has already been paid and also possession delivered. They have also got entered one more strange person secretly and dishonestly with ulterior motive as vendee against the terms of the agreement to whom the defendant would not have sold the land at any cost for personal sentimental grounds. The agreement was made under duress, terror, undue influence and compelling circumstances. The defendant being an old person was harassed by protracted litigation for 15 long years by the plaintiffs and he had to yield to 5 their illegal and pressurizing tactics of entering into agreement for sale of land. According to him, suit was barred under sections 14 and 16 of the Specific Relief Act and sections 15 and 53 of the Contract Act. According to him, on 16.12.1991 when he was busy in file inspection in the Court, the plaintiffs prepared self-serving sale deed wherein the existence of agreement was concealed. He has further pleaded that the suit was bad for non-joinder of necessary parties. He has further pleaded that he has given the suit land to his son Major Rama Krishna Sareen (DW-3) as a result of family arrangement. However, he has admitted that the plaintiffs had paid him a sum of Rs. 6,360/- for purchase of stamp papers, however, sale deed prepared by the plaintiffs was self-serving document and lacked necessary requirement for registration purpose. The trial court framed the issues on 24.11.1994 and additional issue was also framed on 8.3.1996. 4. The defendant had also moved an application under section 151 of the Code of Civil Procedure, which is at page 299 of the paper book the manner in which Ex.P-1 was permitted to be exhibited. The notice was issued on this application and it was ordered by the trial court on 8.3.1996 that the same shall be taken up for consideration at the time of final hearing. 6 5. Trial court decreed the suit on 13.10.1997 for specific performance. The plaintiffs were directed to deposit the balance amount of ` 50,000/- in the court within 30 days from the date of judgment, failing which the suit was deemed to have been dismissed. By way of consequential relief, a decree for permanent prohibitory injunction was also passed in favour of the plaintiffs, as prayed for by them. Defendant preferred an appeal before the learned District Judge, Solan. He dismissed the same on 22.7.1998. Hence, the present Regular Second Appeal. It was admitted on 27.10.1998. However, inadvertently, the substantial questions of law framed with the memorandum of appeal were not taken into consideration. Consequently, the appeal was ordered to be deemed to have been admitted on the following substantial questions of law on 30.9.2008: 1. Whether the time essence has been perversely dealt with against the letter and spirit of the law authorities cited in the written arguments as also other law points? 2. Whether the judgment and decree of the trial court amounts to afford a second opportunity to the plaintiff and which too was not availed in time rebutting the concept of readiness and willingness etc.? 3. Whether the oral family arrangement to save the honour and family property was legally binding worth honour and implementation? 7 6. Thereafter, when the matter was heard for sufficiently long period, appellant prayed that he may be permitted to move an application under section 100 of the Code of Civil Procedure for framing more substantial questions of law on 24.7.2010. The application was filed bearing CMP No. 861/2010 by the defendant and the notice was issued on 20.9.2010. The CMP No. 861/2010 was allowed by this Court on 29.11.2010 and thereafter ordered that the Regular Second Appeal shall also be heard on the additionally framed substantial question of law as per application. The following additional substantial question of law was framed: “Whether the respondents have intentionally played frauds on the plaintiff and the courts rendering all the proceedings as vitiated as per law laid down by the Hon’ble Supreme Court in AIR 2006 SC 3028 Hanza Haji versus State of Kerala?” 7. The defendant has appeared in person and on the basis of substantial questions of law framed has strenuously argued that the issue pertaining to time being essence of contract has not been properly dealt with by the courts below. According to him, the plaintiffs have failed to prove that they were ready and willing to execute their part of contract Ex.PW-1/A. He then argued that the agreement to sell obtained by the plaintiffs was the result 8 of duress and fraud and was not binding upon him. He finally argued that the land had already been sold by him to his son, i.e. Rama Krishan Sareen. According to him, the sale deed Ex.PW-1/B was not admissible in evidence. He then argued that the application preferred under section 151 at page 299 of the paper book has not been decided in accordance with law. In other words, his submission is that Ex.PW-1/B is only the carbon copy and the original copy was withheld. 8. Mr. R.K. Gautam, Senior Advocate has supported the judgments and decrees passed by both the courts below. 9. I have heard the learned counsel for the parties and have perused the records carefully. 10. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 11. Ex.PW-1/A is agreement dated 31.5.1991. The copy of the sale deed is Ex.PW-1/B. Ex.PW-1/A was scribed by PW-2 Raj Kumar. PW-3 Sh. J.R. Chauhan was the marginal witness. The other marginal witness Budh Singh (DW-5) has appeared on behalf of defendant. 9 12. According to defendant, Ex.PW-1/A is outcome of undue influence, duress and coercion. According to PW-2 Raj Kumar, the agreement to sell, i.e. Ex.PW-1/A was dictated by the defendant himself. PW-3 J.R. Chauhan, Advocate is the marginal witness. According to these two witnesses, document Ex.PW-1/A was voluntarily executed by the defendant. DW-5 Budh Singh has supported the version of the defendant. According to him, the defendant has executed the agreement under pressure. 13. As far as the plea of coercion and undue influence, as alleged by the defendant is concerned, both the courts below have rightly come to a conclusion that it was executed voluntarily. 14. Now, the Court will advert to: whether the land had already been parted by the defendant in favour of his son DW-3 Rama Krishna? DW-2 Madan Lal has testified that 15-16 years ago, family settlement took place between the defendant and his son DW-3 Rama Krishna. According to him, DW-3 Rama Krishna had given a sum ` 3,000/- to the defendant. He had also given a sum of ` 42,000/- to the defendant for the purpose of defending the suit. In lieu of the money paid by DW-3 to defendant, he became owner of the suit land. He has also admitted that 10 the house of the defendant was in village Nalagarh. It was in a dilapidated condition. He has admitted that the defendant ordinarily resides in Delhi. 15. DW-3 Rama Krishana has deposed that in the year 1980 litigation between the plaintiffs and defendant was going on regarding the suit land. The defendant was not having sufficient funds to continue the litigation. He gave him ` 40-42 thousands and he had paid a sum of ` 3,000/- to his father, i.e. defendant on the date of settlement. The settlement according to him has taken place in the shop of Ramji. He became absolute owner of the suit land. 16. DW-5 Budh Singh has deposed that defendant has told him that he has parted with the land to his son on the basis of Khangi Panchayat. 17. Defendant has appeared as DW-6. He has deposed that he has given the land to his son, i.e. DW-3 Rama Krishana. The settlement has not been reduced into writing. Defendant has not produced any independent witness to support the settlement. The settlement arrived at should have been reported to the revenue authority for the purpose of carrying out correction in the revenue record. DW-3 has not placed on record any receipt of the amount, which he has paid to his 11 father amounting to ` 40-42 thousands and ` 3,000/- on the date of settlement. Thus, the findings recorded by both the courts below that there was no settlement between the defendant and his son, do not deserve to be interfered with. 18. As far as the plea of the defendant that time was the essence of contract, i.e. sale agreement Ex.PW- 1/A is concerned, it is settled law by their Lordships of the Hon’ble Supreme Court in Govind Prasad Chaturvedi versus Hari Dutt Shastri and another, AIR 1977 SC 1005 that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. 19. In the instant case, as per Ex.PW-1/A, the parties had agreed to get the sale deed executed upto 15.12.1991. It was agreed upon between the parties that in case the defendant evade the execution of the sale deed in favour of the plaintiffs or any other person in whose favour they want to do so, then the plaintiffs will be entitled to compel the defendant to execute sale deed through Court by depositing the remaining sale consideration amount. The defendant was also at liberty to forfeit the earnest money in case the plaintiffs failed to get the sale deed registered within stipulated period and 12 the defendant was at liberty to sell the property to any third person. Plaintiffs have relied upon affidavit Ex.PW- 1/C. This affidavit was sworn by him on 13.12.1991. According to recital of this affidavit, the defendant was called upon to come to the office of the Sub Registrar on 10.12.1991 before 15.12.1991 for execution of the sale deed, as 15.12.1991 was holiday, being Sunday. The defendant did not come on 10.12.1991 and upto 13.12.1991. It is also stated in the affidavit that from 9.12.1991 to 13.12.1991 he had been coming to the office of Sub Registrar alongwith balance sale consideration but the defendant did not turn up. According to the plaintiffs a sum of ` 6,360/- was paid to the defendant on 16.12.1991 to purchase the stamp papers. The stamp papers were purchased and thereafter sale deed Ex.PW- 1/B (carbon copy) was prepared. The signatures of vendor Sh. Sucha Singh and vendee Sant Ram and also of two witnesses were obtained. This document was also scribed by PW-2 Raj Kumar and PW-3 J.R. Chauhan was the marginal witness. 20. However, the plaintiffs have not produced the original copy of the sale deed dated 16.12.1991 Ex.PW- 1/B on the record. The plaintiffs have only produced and exhibited Ex.PW-1/B. PW-1/B is the carbon copy. The 13 exhibition of the same was objected to by the defendant. The defendant had moved an application, as noticed above; bringing to the notice of the trial court that document Ex.PW-1/B could not be taken into evidence. Learned trial court on 8.3.1996 passed the following order on this application: “This application shall be considered at the time of final arguments. It be taken on file.” 21. Trail court has not issued any notice to the plaintiffs. According to the trial court, the plaintiffs have not relied upon carbon copy of sale deed Ex.PW-1/B to prove the transaction of sale but they have placed the same on record to prove their readiness and willingness to perform their part of contract. He has further held that the document has been prepared alongwith copy on stamp paper by similar process and bears the signatures of the parties and as such the same is admissible in evidence as original or counter part of the original document. According to him, this was also not material for the purpose of the present case because the plaintiffs have brought the present action on the basis of agreement Ex.PW-1/A dated 31.5.1991. 22. The Court is of the considered view that Ex.PW-1/B was not admissible in evidence. Ex.PW-1/B is 14 only carbon copy. The plaintiffs had not moved an application under section 63 of the Evidence Act to lead secondary evidence. The plaintiffs have not taken recourse to section 66 of the Evidence Act seeking direction to the defendant to produce the copy of the sale deed. According to the plaintiff, the original of the sale deed was handed over to Sant Ram. He ran away from the court premises with the original sale deed. He had also tried to apprehend the defendant. This version of the plaintiff cannot be believed for the simple reason that he had accompanied the defendant to Bank for fixed deposit in the name of defendant. It was necessary for the trial court to issue notice to the plaintiffs on the application moved by the defendant with regard to admissibility of Ex.PW-1/B. This document was not admissible in evidence. Even assuming that the defendant had run away with the copy of the original sale deed, in that eventuality, a notice was required to be given to him to produce the same under section 66 of the Evidence Act. The documents are to be proved by leading primary evidence. In case the primary evidence is not available, the documents can be proved by leading secondary evidence. However, the procedure providing for leading secondary evidence is to be complied with. 15 23. It is also not borne out from Ex.PW-1/B whether the stamp papers were in fact purchased either by the plaintiffs or by the defendant. According to him, he had given a sum of ` 6360/- to the defendant for the purchase of stamp papers. Defendant while appearing as DW-6 has deposed that he has never purchased stamp papers. Plaintiffs could easily lead evidence by summoning the records from the Treasury whether the stamp papers had been purchased or not on 16.12.1991 amounting to ` 6,360/-. 24. Now, the Court will advert to whether a sum of ` 50,000/- was ever received by the defendant from the plaintiffs as per averment contained in the sale deed dated 16.12.1991. In the amended plaint, it is only mentioned that total consideration was ` 52,000/-, which was accepted by the parties and a sum of ` 2,000/- was paid to the defendant. However, in the replication, stand has been taken that a sum ` 50,000/- was already paid to the defendant. This averment is contained in the reply to preliminary submission. However, the plaintiff while appearing as PW-1 initially has testified that a sum of ` 50,000/- was paid. However, later on he volunteered that a sum of ` 50,000/- was the balance amount. He has deposed that he had insisted for the receipt and despite 16 the receipt being not given to him, he has paid this amount. 25. The case of the plaintiffs is also that F.D.R. amounting to ` 50,000/- was prepared from the Bank in the name of defendant on 16.12.1991 as Ex.DW-1/A. The learned District Judge has given a finding that it was a bank draft. It is evident that Ex.DW-1/A was F.D.R. and not bank draft. The District Judge has not correctly appreciated Ex.DW-1/A. It is evident from the perusal of Ex.DW-1/A that initially, the same was made in favour of the defendant, however, thereafter the same was changed in the name of plaintiff. Now, there are three versions the manner in which ` 50,000/- was alleged to have been paid to the defendant. The first version is that a sum of ` 50,000/- was paid at the time when Ex.PW-1/A was prepared; the second version is that it was paid when the sale deed was prepared. The third version is that F.D.R. was prepared in the name of defendant. This variance has not been explained by the plaintiffs. It also casts doubt on the conduct of the plaintiffs. In fact, it is proved that the plaintiffs have not paid a sum of Rs. 50,000/- to the defendant. Plaintiffs have only paid a sum of Rs. 2,000/- that too at the time of execution of Ex.PW-1/A. Both the courts below have failed to take into consideration that in 17 amended plaint only plaintiff No.1 Sucha Singh has signed the pleadings and Nirmal Singh has not signed the same. Plaintiff No.2 Nirmal Singh has neither signed Ex.PW-1/A nor Ex.PW-1/B. 26. Interestingly, the trial court had granted ad- interim injunction in favour of the plaintiffs against the defendant. The defendant was restrained from alienating the property on 23.12.1991. There is a reference to jamabandi Ex.P-1. However, the fact of the matter is that defendant as on 23.12.1991 had already been put in possession of the suit land on the basis of warrant of possession issued in Civil Suit No. 134/1 of 1980 on 25.11.1991. The plaintiffs had not disclosed this fact when the ad-interim order was granted. 27. Now, the Court will see in view of the facts and circumstances discussed hereinabove above whether the plaintiffs were ready and willing to perform their part of agreement Ex.PW-1/A. It is settled law that readiness and willingness has to be seen upto the stage of arguments and even at the stage of passing a decree. The plea raised by the plaintiffs that he was ready and willing to execute the agreement by making the payment before the fixed date cannot be accepted. In his replication, he has stated that a sum of ` 50,000/- had already been paid. What 18 has been paid to the defendant at the time of preparing Ex.PW-1/A was a sum of ` 2,000/- by way of earnest money. When he appeared as PW-1, plaintiff also reiterated that a sum of ` 50,000/- had already been paid to the defendant. This statement was also contrary to record. In Ex.PW-2/A there is also a reference that the money has been paid and the possession has been handed over. This plea was falsely taken by the plaintiffs. In fact, plaintiffs had only prepared the F.D.R. on 16.12.1991. This was in the name of defendant but the same was subsequently changed. Since the plaintiffs have taken a false plea, they are not entitled to discretionary relief for specific performance of the agreement. 28. Learned Single Judge of the Andhra Pradesh High Court in Kommisetti Venkatasubbayya versus Karamsetti Venkateswarlu and others, AIR AP 279 has held as under: “4. The plaintiff had averred in the plaint that he had paid a sum of Rs. 1500/- on 14.10.1960 and had stated in para 8 of the plaint that “the plaintiff has still to pay the 1st defendant Rs. 272-50 after deducting the sum of Rs. 1500/- already paid to him. The plaintiff is ready to pay that amount and bear half of the stamp and registration expenses for the execution of the sale deed.” The statement that he had already paid Rs. 1500/- has now been found to be not true by both the courts and that finding of fact cannot be disturbed and in fact was 19 not seriously challenged by Mr. A. Gangadhara Rao, learned counsel for the appellant. That being so, it must be taken that the verment in the plaint that he had paid a sum of Rupees 1500/- on 14.10.1960 is not true. In stating that he was ready and willing to perform his part of the contract, it must be taken that he was ready and willing toi pay Rs. 272-50 Ps. which was the balance payable according to him under Ex.A-1 and not that he was ready and willing to pay Rs. 1772-50 Ps. which was due and payable by the plaintiff, according to the finding of the courts below. Unless the readiness and willingness of the plaintiff was to pay the entire balance