Surjit Singh & Ors vs Gurwant Kaur & Ors

It was averred in the plaint that the defendant in the Civil suit had received Rs.50,000/- on 7.2.2003 and a further sum of Rs. 50,000/- on 25.2.2003 as against the determined price of 3,22,500/- per killa as per the agreement. As stipulated in the agreement the balance amount was to be paid on 3.6.2013 at the time of execution and registration of sale deed before the sub Registrar, Patti. It was also recited in the agreement that the suit land was already mortgaged with the State Bank of Patiala and the defendants should clear the loan before execution of the sale deed in favour of plaintiff failing which the deposited amount would be forfeited. The plaintiff, as averred in the plaint, went to the office of the sub- Registrar but the defendants did not turn up. As there was breach of contract by the defendants, for they failed to execute and register the sale deed in favour of the plaintiff, he initiated the civil action for specific performance of contract or in the alternative for recovery of Rs.2,00,000/- as compensation.

The defendants entered contest and filed the written statement contending, inter alia, that the suit was not maintainable; that the plaintiff was not ready with the balance amount; that the stand put forth by the plaintiff that he had come to Tehsil complex on 3.6.2003 along with the balance sale consideration and the attesting witnesses was farther from the truth, for the original defendants remained present in the office of Sub Registrar, Patti from 9.00 a.m. to 5.00 p.m. but the plaintiff did not turn up as he was not ready with the balance consideration; and that the defendants moved an application before the concerned Sub-Registrar for marking their presence and gave an affidavit which was duly signed by the Sub-Registrar. The further stand of the defendants was that the plaintiff and her relatives tried to take forcible possession of the property in dispute as a consequence of which FIR No. 97 dated 9.6.2003 for offences punishable under Sections 307, 326, 323, 148 and 149 of the Indian Penal Code and Section 25 of the Arms Act was registered.

The learned trial Judge framed as many as six issues, recorded the evidence and, eventually, dismissed the suit filed by the plaintiff. It is apt to mention here that during the pendency of the suit the plaintiff had filed an application under Section 151 of the Code of Civil Procedure (CPC) for filing of additional documents with the prayer that the said documents should be accepted as additional evidence. It was stated in the application that in her evidence she had already deposed that she had got Rs.9,00,000/- from her husband’s brother, Gian Singh, and he was having Rs.1,00,000/- in her account bearing No. 1313. It was also averred that she was under the impression that her father was prosecuting the case and had filed the statement of accounts bearing No. 1-29 of Gian Singh and of plaintiff’s bearing No. SB/17274 but inadvertently her father could not produce the said statement of accounts and pass books, and she had no knowledge about the same. In the said backdrop a prayer was made for acceptance of the documents.

In this context, we may refer with profit to the authority in Satyadhan Ghosal and others v. Smt. Deorajin Debi and another[8]. It was a case where the landlords had obtained a decree for ejectment against the tenants. After the decree was made, the Calcutta Thika Tenancy Act, 1949 came into force. The decree had not yet been put for execution. The tenants preferred an application under Section 28 of the said Act for rescission of the decree passed against them. The said application was resisted by the landlords who were the decree-holders. The learned Munsif rejected the application holding that the tenants were Thika tenants under the Thika Tenancy Act. Against the said order the tenants moved the High Court of Calcutta under Section 115 of CPC. By the time the revision application was taken up for hearing, the Calcutta Thika Tenancy Act was amended in 1953. The amended Act omitted Section 28 of the original Act. The High Court considered the effect of the amendment made in the Act and opined that in view of the amended definition of the term “Thika tenant” and the evidence brought on record it can be held that the tenants were Thika tenants. Being of this view, the High Court allowed the revision and set aside the order of the learned Munsif whereby he had dismissed the application of the tenants under Section 28 of the Act. After setting aside the order, the High Court remanded the matter to the court of learned Munsif for disposal in accordance with law. After remit the learned Munsif rescinded the decree. The said order was assailed under Section 115 of CPC which was rejected by the High Court. In revision, a contention was advanced that Section 28 of the Act was not applicable. The Learned Judge who heard the matter opined that the question as between the parties was res judicata. Against the said order an appeal was preferred before this Court on the strength of special leave. In that context, the Court ruled thus: -

In view of the aforesaid analysis, the appeal is allowed and the orders passed by the lower appellate court and that of the High Court are set aside. There shall be no order as to costs.

August 27, 2014.