RSA No.99/2003 Page 1 of 21 * IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA No.99/2003 & CM 373/2003 Reserved on : 25.11.2008 Date of Decision: 14.01.2009 SMT. SUNITA AGGARWAL …… Appellant Through: Ms.Suruchi Aggarwal, Advocate Versus SMT.MANORMA AGGARWAL & ANR. …… Respondents Through: Mr.Manish Sharma, Advocate. CORAM : HON’BLE MR. JUSTICE V.K.SHALI, J 1. Whether reporters of local papers may be allowed to see the judgment? NO 2. To be referred to the Reporter or not? YES 3. Whether the judgment should be reported in the Digest? YES J U D G M E N T V.K. SHALI, J: 1. This is a Regular Second Appeal filed by the appellant against the judgment and decree dated 26th April, 2003 passed by Sh.S.M.Chopra, the then Additional District Judge, Tis Hazari Courts, Delhi by virtue of which the learned ADJ had upheld the judgment and decree dated 27th January, 2003 passed by Sh. Rajesh Kumar Singh, Civil Judge dismissing the suit for specific performance of the appellant. RSA No.99/2003 Page 2 of 21 2. Briefly stated the facts leading to the filing of the present Regular Second Appeal are that the appellant had filed a suit for specific performance against the defendants alleging therein that property No.2742/1-A, Gali No.13, Ranjit Nagar, New Delhi-110008 measuring about 209 sq. yards which was purchased by one Mr. Harish Chand Aggarwal from its previous owner one Sh.Durgadas on 7th June, 1957 by virtue of a registered sale deed. It is further alleged that after purchasing the said property, one Mr. Sita Ram was inducted as a tenant into the suit property by Late Sh. Harish Chand Aggarwal. Sh. Sita Ram is purported to have further sublet the property to one Sh. Mushadi Lal who is presently in occupation of the said property. Sh. Harish Chand Aggarwal is purported to have expired on 3rd September, 1964 leaving behind four sons and one daughter who are stated to have inherited the property jointly as co-owners and legal heirs. One of the sons of Late Harish Chand Aggarwal was Mr.J.K.Aggarwal who is the husband of respondent no.1 and the father of respondent no.2. It is stated that Sh.J.K.Aggarwal had inherited 1/5th share, which comes to 20% of the suit property. It is stated that as per deed of partition the plot in question was divided into five plots and the plot No.5 had fallen to the share of Sh. J.K. Aggarwal. It is further alleged that Sh.J.K.Aggarwal on 7th June, 1993 had after partition of the property agreed to sell his 1/5th share to the appellant for a total consideration of Rs.20,000/- out of which a sum of Rs.5,000/- was alleged to have been paid by the appellant to him at the time of signing of the agreement to sell. The balance RSA No.99/2003 Page 3 of 21 consideration of Rs.15,000/- was to be paid at the time of perfecting the title of the appellant before the Sub-Registrar. It was alleged that unfortunately Sh.J.K.Aggarwal died on 29th November, 1993 and after his death the share of Sh.J.K.Aggarwal was inherited by his two legal heirs i.e. his wife and daughter who are the respondents herein. It is alleged that although Sh.J.K.Aggarwal was ready and willing to perfect the title of the appellant during his life time yet the transaction could not be completed. After the demise of Sh.J.K.Aggarwal, it is stated that the appellant approached the respondents number of times to perfect her title, however, all in vain. A notice was sent on 14th February, 1999 calling upon respondents to accept the balance sale consideration and execute the sale deed in her favour in terms of the agreement to sell dated 7th June, 1993. It is alleged that although on receipt of this notice, appellant was assured that needful would be done but this was not done accordingly another notice dated 16th August, 1999 was issued to the respondents. The respondents sent a reply dated 24th September, 1999 denying that their predecessor in interest having signed any agreement to sell. On the contrary, it was alleged that Sh.J.K.Aggarwal around the time in 1993 when the agreement to sell is purported to have been signed, was confined in hospital and his elder brother one Sh.K.K.Aggarwal, father of the appellant, obtained signatures on some papers which are surreptitiously alleged to have been used to draw an agreement to sell on the basis of which the present suit has been filed. RSA No.99/2003 Page 4 of 21 3. Notice was issued to the respondents/defendants, however, the respondents despite service did not appear and consequently they were proceeded ex parte. The appellant in support of her case has filed two affidavits by way of evidence. The appellant‟s affidavit purported to prove the agreement to sell Ex.PW2/1 and other documents Ex. PW1/1 to PW1/3 executed by Sh.J.K.Aggarwal. In addition to this, Sundar son of Sh. Sudhir has also filed affidavit by way of evidence in support of her case. 4. Learned Civil Judge after hearing arguments dismissed the suit of the appellant on the ground that the same is barred by limitation. For the purpose of limitation, learned Civil Judge referred to Article 54 of the Limitation Act, 1963, which lays down a period of three years within which the suit for specific performance has to be filed. It was observed by the learned Civil Judge even if the period of limitation is reckoned with effect from 14th February, 1999, it was observed that though the suit may be within the period of limitation however, it was still inordinately delayed. On account of this delay, it was observed by the Civil Judge that the grant of relief under the Specific Relief Act is discretionary and the same cannot be claimed as a matter of course by the appellant. On the basis of this reasoning, the suit of the appellant for specific performance was dismissed. 5. Feeling aggrieved by the judgment dated 27th January, 2003, passed by the Ld. Civil Judge, the appellant preferred a Regular First RSA No.99/2003 Page 5 of 21 Appeal, which came to be heard by Sh. S.M. Chopra, ADJ, Delhi. The learned Additional District Judge upheld the dismissal of the suit by the learned Civil Judge as it did not find any infirmity in the judgment of the Ld. Civil Judge. The First Appellate Court also observed that the bonafides of the appellant were also suspect and so were the signatures of Shri J.K. Aggarwal on the agreement to sell which were compared with the signature of Sh.J.K. Aggarwal on the purported copy of the partition deed, which is mark X. It may be pertinent here to mention that this copy of the partition deed was filed by the appellant herself in the first appeal. 6. The appellant feeling aggrieved by the judgment dated 26th April, 2003 passed by Sh. S. M. Chopra, learned Additional District Judge, Tis Hazri Court, Delhi upholding the judgment and decree, and dismissing of the suit passed by the learned Civil Judge dated 27th January, 2003 filed the present Regular Second Appeal. In the appeal the learned counsel for the appellant has formulated the following questions which according to her are of substantial questions of law which are arising in the instant appeal. (i) Whether the plaintiff is not entitled to the decree for specific performance, when her averments, made in the plaint remained unrebutted, by the defendants/respondents, as the defendants did not choose to appear and contest the suit and did not file their written statement, nor appeared in the appeal, in spite of service? RSA No.99/2003 Page 6 of 21 (ii) Whether the suit for specific performance can be dismissed, on the grounds of alleged delay and laches, on the part of the plaintiff, otherwise the suit is well within the period of limitation? (iii) Whether the first appellate court was justified in arriving at the conclusion, without any pleadings/allegations on the part of the defendants, that the signatures of Shri J. K. Aggarwal (Vendor) differ from the admitted signatures on the Partition Deed, while the Partition Deed itself confirms the execution of the agreement to sell and the defendants in their reply to the legal notice, admitted her signatures and that of Shri J. K. Aggarwal. (iv) Whether the first appellate court was justified to make out a new case for the defendants that inordinate delay on the part of the plaintiff in coming to the court, is sufficient to decline the relief of specific performance. (v) Whether the Trial Court erred in law inferring, without any evidence on record and without any opposition to the suit, from the defendants that there is delay in approaching the Court, even though the suit was well within limitation, particularly when the suit was between near relations and findings of delay, in approaching the Court, is based on mere ipse-dixit and is a result of surmises. 7. It was contended by the learned counsel Ms. Suruchi Aggarwal for the appellant that the factum of the agreement to sell in respect of the share of the respondents purporting to have been executed by their predecessor-in-interest on 7th June, 1993 was not in dispute. It was also urged that Late Sh. J. K. Aggarwal during his life time or even the respondents herein who are the successor in interest of Sh. J.K.Aggarwal would not deny to perfect her title. Since title was not perfected, therefore, the appellant was constrained to first send a notice on 14th February, 1999 to which again no reply was given them. The second RSA No.99/2003 Page 7 of 21 notice was sent on 16th August, 1999 asking them to perform their part of the contract perfecting the title of the appellant after consideration of Rs. 15,000/- and since this was not done she filed a suit on 17th January, 2002 which is well within three years from the date of refusal of the respondents to perform the specific performance part of their contract. The learned counsel for the appellant contended that in terms of the agreement, there is no specific time laid down for the performance of the contract and accordingly, the suit was maintainable as the same was filed within three years from the date on which the appellant came to know about the refusal by the respondents to perform their part of the contract. This refusal is to be taken from the date of a reply of the respondents which is dated 24th September, 1999 and hence the suit of the appellant is within time and has been wrongly dismissed by the courts below. The learned counsel for the appellant in support of her contention relied upon PARVATHARAJ GUPTA VS. K. C. JAYADEVA REDDY (2006) 2 SCC 28 and GUNWANTBHAI MULCHAND SHAH & ORS. VS. ANTON ELIS FAREL & ORS. (2006) 3 SCC 634. 8. The learned counsel for the appellant also contended that she has filed an application bearing C.M. No. 373/2003 under order 41 Rule 27 of the CPC for seeking permission to adduce additional evidence to prove the partition deed mark „X‟ which had been executed among Late Sh. J. K. Aggarwal and his brothers by virtue of which the suit property was partitioned. It has been averred by the learned counsel for the appellant RSA No.99/2003 Page 8 of 21 in the application that although the other legal heirs of Late Sh. Hari Chand had perfected the title of the appellant with regard to their respective shares, it was only the Late Sh. J. K. Aggarwal or the respondents herein who had failed to keep their promise of perfecting the title of the appellant and therefore, it was necessary to prove the partition deed between the parties. This partition deed has been taken cognizance of by the learned Appellate Court. The learned counsel contended that the proof of this document is very essential for the just decision of the case. The appellant has placed reliance in support of her application under Order 41 Rule 27 of the CPC on Lachhman Singh(Deceased) through Legal Representatives and Others Vs. Hazara Singh(Deceased) through Legal Representatives and Others (2008) 5 SCC 444, North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das 2008 (4) JT 587 and Sarada (Smt.) and Others Vs. Manikkoth Kombra Rajendran (1996) 8 SCC 345 as well as Phool Pata and another Vs. Vishwanath Singh and Others (2005) 6 SCC 40 to urge that additional evidence can be adduced even at the stage of the second appeal. 9. The learned counsel for the respondent has contested the submissions made by the appellant on both these grounds. So far as the merits of the second appeal are concerned, it was contended by the learned counsel for the respondent that the second appeal is maintainable only if a substantial question of law is involved in the RSA No.99/2003 Page 9 of 21 appeal. As against this there is a concurrent finding of fact that the suit of the appellant is barred by limitation although the reasoning which has been given by the courts below is varying but the outcome of the matter remains same. The suit having been filed after more than three years from the date of the death of Sh. J. K. Aggarwal, it is barred by time. It was also contended that even if it is assumed that there was no time fixed for the specific performance of the agreement dated 7th June 1993 still it had to be performed within a reasonable time. As against this the appellant has chosen to file the present suit after expiry of almost nine years from the date of purported agreement to sell in question. The learned counsel for the respondent also placed reliance on case titled as State of Gujarat & Anr. Vs. Mahendrakumar Parshottambhai (2006) 9 SCC 772. 10. So far as the application of the appellant under order 41 Rule 27 of the CPC for seeking permission to adduce additional evidence to prove the partition deed is concerned, the learned counsel for the respondents took this Court through the contents of the said application and pointed out that the said application does not fall in any of the sub-clauses (a), (aa) and (b) of the Order 41 Rule 27 of the CPC nor does the proof of the said partition deed advanced the substantial justice as is sought to be urged by the appellant. It was contended that the document which is sought to be proved by the appellant was well within their knowledge as the factum about the partition deed is mentioned in the suit itself. RSA No.99/2003 Page 10 of 21 Further a copy of the same was filed by way of a photocopy before the first appellate court by the appellant herself and if at all such an application was entertainable it ought to have been filed before the first appellate court. Having failed to do so it is not open the appellant to maintain the present application order 41 rule 27 of the CPC so as to fill up the lacuna in their case by filing the present application at the stage of the second appeal. 11. I have thoughtfully considered the submissions of the respective sites and perused the judgments cited by the learned counsel for the appellant. 12. First, I deal with the application under Order 41 Rule 27 of the CPC filed by the appellant. One of the objections which was raised by the learned counsel for the respondent that the present application under Order 41 Rule 27 of the CPC has been filed at the stage of the Second Regular Appeal, and therefore, ought not to be entertained. The learned counsel for the appellant has cited a judgment titled as Phool Pata and another Vs. Vishwanath Singh and Others (2005) 6 SCC 40 which was a case in which additional evidence was permitted to be taken at the stage of the Second Regular Appeal. In my view that is not the issue in this case. In a given case if the fact situation so warrants and the requirement of Order 41 Rule 27 CPC are met, the Court may permit additional evidence even in second appeal. RSA No.99/2003 Page 11 of 21 13. A perusal of under Order 41 Rule 27 of the CPC would clearly show that the application for additional evidence can be filed at the appellate stage provided the requirements mentioned in sub-clause 27 of the order are satisfied. “27. Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b)The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 14. A perusal of the aforesaid rule would clearly show that unless and until any of the aforesaid three conditions is satisfied by the by the appellant the additional evidence cannot be admitted at the appellate stage. In the instant case the appellant in the suit itself has mentioned that after the death of Late Sh. Hari Chand Aggarwal the suit property was partitioned in five shares among the brothers which included one Sh. RSA No.99/2003 Page 12 of 21 J. K. Aggarwal and his brothers and sister as a consequence of which the appellant was entitled to an area of 41.8 sq. mtrs. by way of plot No. 5. Therefore, the factum of the partition having been done by meets and bounds was within the knowledge of the appellant and it was open to the appellant, if it so desired to place reliance on the partition deed, to prove the same. The appellant does not seem to have placed reliance on the said partition deed nor was the said deed filed before the Trial Court. After the dismissal of the suit during the pendency of the appeal the appellant herself had filed a photocopy of the said partition deed before the appellate court. It could not be said that the document in question was not within her knowledge or that it could not be produced despite due diligence. The case of the appellant does not fall in clause (bb). The case of the appellant also does not fall in clauses (a) or even in clause (b) also as would be clear from the plain reading of the said sub-clauses. The Court has not refused to admit the partition deed nor does the court want to look to the partition deed in order to decide the case. The proof of partition deed was not required to be produced for the pronouncement of the judgment by the court. On the filing of the photocopy of the partition deed the learned appellate court had compared the signatures of Late Sh. J. K. Aggarwal on the purported agreement to sell dated 7th June, 1993 with the signatures purporting to be appearing on the photocopy of the partition deed filed by the appellant himself and observed that the signatures do not tally and this raises doubt about the signatures on the agreement to sell itself purported to have been executed RSA No.99/2003 Page 13 of 21 by late Sh. J. K. Aggarwal. But it is not on this ground alone that the appeal has been dismissed. The learned ADJ has also agreed with the finding of the learned Civil Judge that the suit of the appellant is barred by limitation in view of Article 54 of Limitation Act, 1963 and it is in light it has been observed that there is inordinate delay in filing the suit. 15. After having suffered dismissal of the first appeal it is not open to the appellant now to file the appeal as well as the present application under Order 41 Rule 21 of the CPC seeking permission to adduce additional evidence to prove the partition deed by urging that the proof of the partition deed is essential for the just decision of the case. On the contrary, I am of the considered opinion that by filing an application at such a belated stage of second appeal after having suffered an adverse concurrent finding of the fact, the appellant has tried to fill up a lacuna left in the case of the appellant. Even otherwise I do not feel that proof of partition deed in any manner whatsoever advances the substantial justice in the case. 16. The case of the appellant in the suit is that there was an agreement dated 7th June, 1993 executed by Late Sh. J. K. Aggarwal and for a total consideration of Rs. 20,000/- out of which a sum of Rs. 5,000/- was paid to Sh. J. K. Aggarwal at the time of the execution of the agreement. It is alleged that Sh. J. K. Aggarwal is purported to have never denied to perfect the title of the appellant yet the appellant did not get the title perfected. Admittedly, Late Sh. J. K. Aggarwal died on 29th November, RSA No.99/2003 Page 14 of 21 1993 and immediately on account of his death, the appellant did not file the suit for specific performance and has averred in the plaint that neither Late Sh. J. K. Aggarwal nor his successor in interest, namely, the respondents denied the agreement yet they did not perfect the title of the respondent, and therefore, she was constrained to give notices on 14th February, 1999 and on 16th August, 1999 to which reply dated 24th September, 1999 was received, and therefore, a suit was filed within a period of three years from the said date. If this is the fact situation, I fail to understand as to how the partition deed becomes relevant for the proof of the agreement to sell or the performance of the said agreement to specific performance. As against this in the application seeking additional evidence a new case has been set up by stating that she has also purchased the remaining 80% of the property in question from other co-shares and they have perfected her title while as it was in fact of this 20% only that the respondent was trying to wriggle out. It is in my opinion is totally an irrelevant consideration for allowing the application for additional evidence. 17. Accordingly, I am of the view that not only the application under order 41 Rule 27 of the CPC filed by the appellant is totally misconceived as it does not satisfy the requirement of Order 41 Rule 27 of the CPC but this is only a ploy to keep the matter pending so that it is used as a lever for settlement. So far as the authorities which have been cited by the learned counsel for the appellant with regard to adducing of additional RSA No.99/2003 Page 15 of 21 evidence are concerned, I am of the view that there is no dispute about the proposition of law laid down thereunder but they are not applicable to the facts of the present case. . 18. Accordingly, the application bearing No.373/2003 of the appellant under Order 41 Rule 27 of the CPC is dismissed. 19. Coming back to the merits of the case there is no dispute about the fact that Article 54 of the Limitation Act, 1963 specifies a period of