IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 93 of 1995. Judgment reserved on :24.4.2010 Date of decision : 3.5.2010. Randhir Sharma …Appellant. Versus Uma Devi and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 yes For the Appellant : Mr. C.P.Sood, Advocate. For the Respondents : Mr. Ramakant Sharma, Advocate. Kuldip Singh, Judge The appellant was plaintiff and has come in appeal against the judgment, decree dated 12.9.1994 passed by learned Additional District Judge, Solan, Camp at Nalagarh in Civil Appeal No. 7-NL/13 of 1994/1993 affirming the judgment, decree dated 30.9.1993 passed by learned Sub Judge 1st Class, Nalagarh in Civil Suit No. 50/1 of 1989. 2. The appellant had filed suit for specific performance of the contract on the basis of agreement dated 14.5.1985 whereby Rameshwar Dass predecessor-in-interest of the respondents had agreed to sell to appellant a plot comprised in Khata Khatauni No. 27/27 Khasra No. 56/32/2, measuring 2 bighas mauza Jangi, 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Pargana Dharampur, Tehsil Nalagarh, District Solan, H.P. as per tatima for a consideration of Rs. 48,000/-. It is the case of the appellant that an amount of Rs. 5,000/- was paid to deceased Rameshwar Dass on 14.5.1985 at the time of agreement, thereafter Rs. 15,000/- were paid on 14.11.1985, Rs. 8,000/- on 3.12.1985 and Rs. 10,000/- on 3.4.1986. In all, according to appellant, an amount of Rs. 38,000/- were paid to Rameshwar Dass and Rs. 10,000/- were left to be paid. 3. The appellant remained ready and willing to perform his part of the contract but unfortunately Rameshwar Dass died on 18.6.1986 leaving behind the respondents, who succeeded to the estate of late Rameshwar Dass including the suit property. The appellant had been requesting Rameshwar Dass to execute and register the sale deed but he put off the execution and registration of the sale deed on one pretext or the other. The appellant had also requested the respondents to execute and register the sale deed but they also did not execute and register the sale deed. The appellant had served a notice dated 5.11.1989 on the respondents, they refused to perform their part of the agreement vide reply dated 4.2.1989. In these circumstances, the suit was filed for specific performance of the contract. 4. The suit was contested by respondents and they took preliminary objections that appellant is not an agriculturist under H.P.Tenancy and Land Reforms Act, 1972, therefore, he has no right and cause of action to file the suit, the objection of limitation was also taken. On merits, it was admitted that Rameshwar Dass predecessor-in-interest of the respondents had agreed to sell 2 3 bighas of suit land to appellant for a consideration of Rs. 48,000/-. It was denied that Rameshwar Dass had received Rs.38,000/-, he received only Rs. 5,000/- as earnest money on 14.5.1985, a definite date was agreed for the performance of the agreement. It has been denied that only Rs.10,000/- remained to be paid to Rameshwar Dass. Rameshwar Dass had informed the respondents at the time of his death that he had received only Rs. 5,000/-, the appellant had not requisite permission to purchase the land and, therefore, Rs.5,000/- were forfeited. Rameshwar Dass had died on 18.6.1986 leaving behind the respondents his legal heirs who succeeded to his estate. The notice dated 5.1.1989 was replied by respondents on 4.2.1989. The agreement is unenforceable, it was rescinded by Rameshwar Dass during his life time on failure of appellant to perform his part of the contract within the stipulated time. 5. The suit property was co-parcenary property and Rameshwar Dass was not competent to alienate or enter into sale agreement to alienate the same to appellant. The appellant has manufactured false record in support of his case. The appellant filed replication in which he reiterated his stand and denied the case set up by the respondents. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled for the relief of specific performance of his contract dated 14.05.1985 as alleged? OPP. 2. Whether the plaintiff is not agriculturist and if so its effect? OPD. 3. Whether the suit is not within time as alleged? OPD. 4. Relief. 4 The issue No. 2 was answered in affirmative whereas issues No.1 and 3 in negative and the suit was dismissed on 30.9.1993. The learned Additional District Judge, dismissed the appeal on 12.9.1994, hence the appellant has filed the second appeal which has been admitted on following substantial questions of law:- 1. Whether the Court below could have dismissed the suit without ordering and directing the respondents to refund the amounts paid to the predecessor-in-interest of the respondents from time to time for the purchase of the property in question? 2. Whether the learned District Judge could have entertained the objections regarding non-payment of amount paid vide Ex.PW- 2/A and Ex.PW-2/B without there being any cross-objections filed by the respondents? 6. The appellant had filed an application under Order 6 Rule 17 C.P.C. in this Court for amendment of the plaint which was allowed. The respondents filed written statement to the amended plaint and the following additional issue was framed:- Whether in alternative appellant/plaintiff is entitled to Rs.48,000/- alongwith interest at the rate of 12% per annum, as alleged? OPP. 7. No evidence was led on the additional issue in view of the order dated 30.5.2008 passed in the above appeal. The learned counsel for the parties have submitted that the aforesaid additional issue is covered by substantial question of law No.1 already framed. The appellant has filed CMP No. 125 of 1995 under Order 41 Rule 27 C.P.C. for additional evidence to prove draft No. QL/A/573795 dated 3.4.1986 of UCO Bank, Ram Bazar, Shimla to prove that through this draft an amount of Rs.10,000/- was paid by the appellant to Rameshwar Dass. This application has been opposed 5 by respondents by filing reply. It has been submitted that alleged evidence which is sought to be proved was well within the knowledge of the appellant and he having failed to lead the evidence at appropriate stage, he cannot be permitted to fill up the lacunae at a belated stage. The additional evidence is neither necessary nor proper at this stage to be placed on record. 8. I have heard the learned counsel for the parties and have also gone through the record. Mr. C.P.Sood, learned counsel for the appellant has submitted that appellant may be permitted to lead additional evidence which will assist this Court to determine real dispute between the parties. He has submitted that the Courts below have erred in dismissing the suit without ordering refund of amount received by Rameshwar Dass, predecessor-in-interest of the respondents alongwith interest. The learned Additional District Judge has erred in holding that no amount was paid vide Ex.PW-2/A and Ex.PW-2/B more particularly, when the respondents had not filed any cross-objections. 9. The learned counsel for the respondents has submitted that in the agreement dated 14.5.1985 date was fixed for performance of the agreement. The appellant failed to perform his part of the contract within the time specified in the agreement, therefore, the agreement came to an end during the life time of Rameshwar Dass. The amount of Rs. 5,000/- already paid to Rameshwar Dass by the appellant was also forfeited under the agreement in favour of Rameshwar Dass. No amount was paid by the appellant to Rameshwar Dass over and above Rs. 5000/- under the agreement, therefore, the appellant is not entitled to refund of 6 any amount. The suit was dismissed and, therefore, without cross- objections, the respondents could support the judgment and decree passed by the learned trial Court on all defences available to them in law. The learned Additional District Judge has rightly appreciated the material on record and no fault can be found with the judgment, decree passed by the learned Additional District Judge while affirming the judgment, decree passed by the learned trial Court. The learned counsel for the respondents has opposed the application for additional evidence. 10. The appellant in the application for additional evidence has submitted that he could not produce the evidence in the Court below despite due diligence. The documents were in the possession of the issuing bank and the encashing branch. The appellant made all efforts but despite that he could not get the information regarding the same from the concerned branch. The additional evidence cannot be manufactured or fabricated by the appellant. He has submitted that the additional evidence will assist this Court in pronouncing the judgment. The appellant has filed the suit on the basis of agreement dated 14.5.1985 Ex.P-1. The appellant is relying on endorsement dated 3.4.1986 in the agreement Ex.P-1 wherein it has been stated that Rameshwar Dass on 3.4.1986 had received draft bearing No. QL/A 57395 dated 3.4.1986 amounting to Rs. 10,000/-. In endorsement draft No. QL/A 57395 has been mentioned whereas in the application for additional evidence draft No. QL/A573795 has been mentioned. Thus, draft numbers are not tallying as mentioned in Ex.P-1 and application for additional evidence. Assuming that either in Ex.P-1 endorsement 7 or in application for additional evidence draft number has been wrongly mentioned due to some mistake but fact remains that appellant was aware that payment was made to Rameshwar Dass on 3.4.1986 through bank draft of specific number and of particular bank. No other information was required for summoning the relevant draft and producing the same in the court by way of evidence. The appellant no doubt in the application has used the expression that despite ‘due diligence’ he could not produce the evidence in the Court. The appellant has not elaborated what more information was required for summoning the bank draft other than information mentioned in endorsement on agreement Ex.P-1. The appellant had not filed the application for additional evidence in the lower appellate court what to talk of filing appropriate application for summoning the relevant draft in the trial Court even after the evidence of the appellant was closed in the trial Court. In the facts and circumstances which have come on record the application for additional evidence is not bonafide and the same is rejected. 11. The substantial questions of law No.1 and 2 alongwith aforesaid additional issue are collectively taken up for consideration and disposal. The learned counsel for the appellant has submitted that the learned Additional District Judge has erred in entertaining the objection regarding non-payment of amount paid vide Ex.PW- 2/A and Ex.PW-2/B in absence of cross-objections of respondents and for that purpose, he has relied on Banarsi and others Vs. Ram Phal AIR 2003 SC 1989. The learned counsel for the respondents has submitted that suit was dismissed by learned trial Court in favour of the respondents. Therefore, the respondents in law were 8 not required to file any appeal, cross-appeal, cross-objections against the judgment and decree dated 30.9.1993 passed by the learned Sub Judge. The respondents were well within their right to defend the decree dated 30.9.1993 without filing cross-objections. The Appellate Court has all pervasive powers under Order 41 Rule 33 CPC. 12. The Supreme Court in Banarsi (supra) has held that there may be three situations : (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent; (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent. (iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent. The Supreme Court has held that in the type of case (i) it was necessary for the respondent to file an appeal or take cross- objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross- objections. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection, the amendment made in the text of sub-rule (1), read with the 9 explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross- objection is spelled out by sub-rule (4). Inspite of the original appeal having been withdrawn or dismissed for default the cross- objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In pre- amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent. In the present case, the decree passed by the learned trial Court did not fall under type (i) above. Therefore, the respondents were not required to file cross-objections, they were well within their right to defend the decree dated 30.9.1993 passed by the learned trial Court on all grounds available to them in law. The substantial question of law No.2 is decided accordingly. 13. The trial Court after noticing the statement of appellant, statement of PW-1 Ram Dev, receipts Ex.PW-2/A and Ex.PW-2/B, held that it is established on record that plaintiff has paid Rs. 28,000/- to Rameshwar Dass. But the learned trial Court did not accept the contention of appellant that vide receipt Ex.PW-2/C an amount of Rs. 10,000/- was paid to Rameshwar Dass through bank draft as mentioned in receipt Ex.PW-2/C. The learned trial Court under issue No.1 has held that the appellant had failed to prove that he had performed or was willing to perform his part of the agreement 10 as envisaged under Section 16 (c ) of the Specific Relief Act, 1963 and, therefore, issue No.1 was decided against the appellant. 14. The learned Additional District Judge has held that respondents have admitted that Rameshwar Dass had received Rs.5,000/- as earnest money on the date of execution of the agreement Ex.P-1. The learned Additional District Judge has rejected the plea of the appellant that Rameshwar Dass had received Rs.15,000/- on 14.11.1985 and Rs.8,000/- on 3.12.1985 on the ground of discrepancy in evidence and payment of Rs.10,000/- by way of draft on 3.4.1986 has been rejected on the ground that the record from the bank has not been produced for proving the said payment. The learned Additional District Judge has held that in these circumstances the appellant has failed to prove readiness and willingness and upheld the judgment, decree dated 30.9.1993 of learned trial Court. 15. PW-1 Randhir Sharma has stated that Rs.15,000/- were paid on 14.11.1985 to Rameshwar Dass in presence of Ram Dev and Ramesh Chand and Rameshwar Dass signed the endorsement mark ‘A’. The second payment of Rs.8,000/- was made on 3.12.1985 to Rameshwar Dass in his presence as well as in presence of Ram Dev and thereafter Rameshwar Dass signed endorsement mark ‘B’. He has also stated that Rs.10,000/- were paid to Rameshwar Dass vide UCO Bank draft dated 3.4.1986 and Rameshwar Dass signed the endorsement mark ‘C’ in his presence. PW-1 was cross-examined but it was not put to him specifically that aforesaid endorsements mark ‘A’, ‘B’ and ‘C’ were not signed by 11 Rameshwar Dass, though it was put to him that endorsements are fabricated. 16. PW-2 Ram Dev has stated that on 14.11.1995 vide Ex.PW-2/A Rs.15,000/- were paid and then Rameshwar Dass signed in his presence. On 3.12.1985 Rs.8,000/- were paid vide Ex.PW-2/B to Rameshwar Dass and thereafter Rameshwar Dass put his signatures in his presence. He identified signatures of Rameshwar Dass in circle on Ex.PW-2/A. In cross-examination, he has stated that Randhir Sharma is his nephew but they are living separately. He has stated that his signatures on Ex.PW-2/A are in between the signatures of scribe and owner. In cross-examination it was not put to PW-2 specifically that Ex.PW-2/A, Ex.PW-2/B and Ex.PW-2/C were not signed by Rameshwar Dass, though it was put to him that endorsements are fabricated. 17. The learned Additional District Judge has rejected the payments made under endorsements Ex.PW-2/A and Ex.PW-2/B on the ground of contradictions between the statements of PW-1 and PW-2 regarding the payments mentioned in endorsements Ex. PW-2/A dated 14.11.1985 and endorsement Ex.PW-2/B dated 3.12.1985. The payment under endorsement Ex.PW-2/C dated 3.4.1986 has been rejected on the ground that draft from the concerned bank was not summoned. PW-1 and PW-2 have proved the endorsements Ex.PW-2/A, Ex.PW-2/B and Ex.PW-2/C. The learned Additional District Judge has not recorded the finding that endorsements Ex.PW-2/A, Ex.PW-2/B and Ex.PW-2/C on agreement Ex.P-1 were not made by Rameshwar Dass. It is specific case of the appellant that endorsements Ex.PW-2/A, Ex.PW-2/B and 12 Ex.PW-2/C were made by Rameshwar Dass on agreement Ex.P-1 after receiving the amounts mentioned in the endorsements. There is no dispute between the parties that agreement Ex.P-1 was executed between appellant and late Rameshwar Dass and at the time of execution of the agreement Ex.P-1 Rameshwar Dass had received Rs.5,000/- earnest money. 18. The sub section 3 of Section 32 of Indian Evidence Act, 1872 (for short ‘Act’) provides that statements written or verbal of relevant facts made by a person who is dead are themselves relevant facts when the statement is against the pecuniary or proprietary interest of the person making it. In Babhnaji Vs. Ratanlal and another AIR 1934 Nagpur 106, it has been held that the statement made by Gangabai at the time of sale deed of 1902 that the consideration of the mortgage was due partly in respect of her husband’s debt and partly in respect of her own debts, for cultivation has been admitted in evidence. The statement that she was liable for this amount is clearly admissible under Section 32 (3) as a statement made against her pecuniary and proprietary interest. In Ramrati Kuer Vs. Dwarika Prasad Singh and others AIR 1967 SC 1134, the Supreme Court noticed that in the opinion of the High Court there was a statement made by Mst. Phuljhari as far back as 1925 in a mortgage suit brought by her and in that suit she categorically said that Ramruch left his home a month after the death of Basudeo Narain and had not been heard of since. The High Court strongly relied on this statement made by Mst. Phuljhari Kuer in 1925 and held on its basis that Basudeo Narain had predeceased his father. Mst. Phuljhari Kuer had made the following 13 statement in the suit : “My husband died nine years ago. Ramruch Singh father of Basudeo Narain Singh went away from this place one month after the latter’s death and he has not been heard of since then and is traceless.” 19. The Supreme Court in Ramrati Kuer (supra) noticed Savitri Debi Vs. Ram Ran Bijoy Prosad, AIR 1950 PC 1 wherein it has been held : “The principle upon which hearsay evidence is admitted under Section 32(3) is that a man is not likely to make a statement against his own interest unless true, but this sanction does not arise unless the party knows the statement to be against his interest.” The Supreme Court in Ramrati Kuer (supra) held that this statement of law is based on two earlier English decisions in Tucker Vs. Oldbury Urban District Council, (1912) 2 KB 317 and Ward Vs. H.S.Pitt, (1913) 2 KB 130. Accepting this to be the correct statement of law with respect to admissibility of statements under Section 32(3) of the Indian Evidence Act, it was held that question whether the statement was made consciously with the knowledge that it was against the interest of the person making it would be a question of fact in each case and would depend in most cases on the circumstances in which the statement was made, except when the statement is categorical in terms as for example, “ I owe so much to such and such person”. There can hardly be any direct evidence to show that the person making the statement in fact knew that the statement was against his interest and so in most cases knowledge would have to be inferred from the surrounding circumstances. The Supreme Court has ultimately held that the 14 statement in question was made by Mst. Phuljhari Kuer consciously and not at the instance of Basekhi Singh and she must in the circumstances of the case to be presumed to know that that statement was against her proprietary interest for thereby she became the widow of predeceased of her father in law. 20. In Gulam Ali Saha and others Vs. Sultan Khan and another AIR 1967 Orissa 55, where recital in the document was that the consideration had been paid. The statement was made by the deceased predecessor in interest of the defendants and is binding on them as being against the pecuniary and proprietary interest of the vendor under Section 32 (3) of the Evidence Act. In Ushamani Dei and others Vs. Gandharba Barik and another I.L.R. 1977 Cut. 157 after noticing ILR 1966 Cut.571 and 1973 (2) C.W.R. 1759, it was held that principle enunciated in the aforesaid two decisions, the statement of a dead person against his pecuniary interest is a good evidence in support of passing of consideration. This should have been taken notice of while considering the question of passing of consideration. 21. The two Courts below have not recorded a finding that endorsements Ex.PW-2/A, Ex.PW-2/B and Ex.PW-2/C were not executed and signed by Rameshwar Dass. The payments referred in Ex.PW-2/A and Ex.PW-2/B were not believed on the ground of discrepancies in the statements of PW-1 and PW-2 and payment referred in endorsement Ex.PW-2/C has not been believed on the ground that the draft was not produced by the appellant. The contradictions in the statements of PW-1 and PW-2 regarding the payments mentioned in Ex.PW-2/A and Ex.PW-2/B are natural. 15 These endorsements are dated 14.11.1985 and 3.12.1985. The statements of PW-1 and PW-2 were recorded on 22.9.1992. The place of payment has not been mentioned in endorsements Ex.PW- 2/A and Ex.PW-2/B. The contradictions are with respect to place of payments but not the payments, therefore, in the facts and circumstances of the case the contradictions are not fundamental. The endorsements Ex.PW-2/A, Ex.PW-2/B and Ex.PW-2/C were made by Rameshwar Dass against his pecuniary interest, therefore, the endorsements Ex.PW-2/A, Ex.PW-2/B and Ex.PW-2/C are admissible under Section 32 (3) of the Indian Evidence Act in the light of law laid down in the judgments discussed above. 22. The total sale consideration as per Ex.P-1 was Rs. 48,000/- . The endorsement Ex.PW-2/B indicates that on 3.12.1985 Rameshwar Dass had received Rs.8,000/- from appellant. He had already received Rs. 15,000/- on 14.11.1985 as mentioned in endorsement Ex.PW-2/A and Rs. 5,000/- at the time of execution of agreement Ex.P-1 on 14.5.1985. Till the writing of endorsement Ex.PW-2/A, Rameshwar Dass had received Rs. 28,000/- and balance amount payable was Rs. 20,000/-. The endorsement Ex.PW-2/B also indicates that on 3.12.1985 only Rs. 20,000/- was left to be paid by the appellant under the agreement. Similarly, when Rameshwar Dass had received Rs. 10,000/- by way of draft on 3.4.1986, the total amount till then he had received Rs. 38,000/- under the agreement and balance amount of Rs.10,000/- was payable to Rameshwar Dass. 23. The Supreme Court after noticing AIR 1964 SC 136 in R.V.E. Venkatachala Gounder Vs.