Himachal Pradesh High Court
Manoj Kumar & Others vs Ms. China & Others on 17 October, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 248 of 2005.
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Reserved on : 03.10.2017 Decided on : 17th October, 2017.
Manoj Kumar & others .....Appellants/Defendants.
Versus Ms. China & others Coram:
r to .....Respondents/Plaintiffs.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellants: Mr. Aman Sood, Advocate.
For the Respondents: Mr. N.K. Thakur, Senior Advocate with Mr. Divya Raj Singh, Advocate.
Sureshwar Thakur, Judge.
The plaintiffs instituted a suit against the defendants, claiming therein a decree for declaration besides a decree for specific performance of contract, as 1 Whether reporters of the local papers may be allowed to see the judgment?
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well as, a decree for permanent prohibitory injunction was claimed. The suit of the plaintiffs stood dismissed by the learned trial Court. In an appeal carried therefrom by the plaintiffs before the learned First Appellate Court, the latter Court allowed the appeal, whereupon, it partly decreed the suit of the plaintiff, for Rs.48,800/- along with proportionate costs and future r recovery of interest at the rate of 6% per annum, from the date of institution of the suit till full and final realization of the decretal amount. In sequel thereto, the defendants/appellants herein are driven to institute the instant appeal herebefore.
2. Briefly stated the facts of the case are that the plaintiffs filed a suit for declaration and specific performance of contract dated 12.1.1983 against the defendants. The case of the plaintiffs is that the suit property comprised in Khasra No.9167/4057 measuring 58-4 square yards, Khata-Khatoni No. 467/626 is recorded ::: Downloaded on - 10/11/2017 12:01:13 :::HCHP ...3...
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and shown in the ownership of Shri Madho Ram, predecessor-in-interest of the defendants. Defendant No.1, who is minor is residing under the care and custody of defendant, his mother and her interest is not adverse to the interest of the minor. Hence, defendant No.3 is appointed as guardian of minor. That their predecessor-
in-interest late Sh. Gulam Mohammad was tenant prior to agreement to sell dated 12.1.1983. On 12.1.1983, the predecessor-in-interest of the plaintiffs purchased the disputed property for a consideration of Rs.60,000/- and agreement to sell in this behalf was executed by late Shri Mdho Ram, the predecessor-in-interest of the defendants.
It was agreed between the parties to contract that whole amount of loan raised by executant Madho Ram shall be paid by Shri Gulam Mohammad, predecessor-in-interest of the plaintiffs, who paid a sum of Rs.7300/- to the government in installments upto 7.10.1996 and that the plaintiffs are ready to pay the balance amount of sale ::: Downloaded on - 10/11/2017 12:01:13 :::HCHP ...4...
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price and balance loan amount to late Shri Madho. Late Shri Madho also received part consideration of Rs.41,500/- from the plaintiffs and their predecessor-in-
interest pursuant to this agreement dated 12.1.1983. It has been averred that sale deed could not be executed due to certain embargo upon the suit property. Shri Gulam Mohammad expired in the year 1994-95 and by virtue of agreement to sell, the plaintiffs have become owners of the disputed property as the defendants through their predecessor-in-interest late Shri Madho Ram have received the part consideration of Rs.48,800/-
from the plaintiff and their predecessor-in-interest and they are in possession of the suit property from 1981. It has been averred that they requested the defendants to get the sale deed registered pursuant to the agreement to sell, the plaintiffs did not care at all, rather they moved an application under the Rent Control Act before the Rent Controller seeking eviction of the plaintiffs from the ::: Downloaded on - 10/11/2017 12:01:13 :::HCHP ...5...
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disputed property. It has been averred that the plaintiffs are ready to perform their part of contract by making payment of the remaining sale consideration. Hence this Suit for declaration, specific performance and in the alternative for recovery of Rs.48,800/- has been filed by
3. to the plaintiffs against the defendants.
The defendants contested the suit and filed written statement, wherein they have taken preliminary objections qua limitation, estoppel and locus standi. On merits, they refuted the claim of the plaintiffs. It has been averred that after the death of Shri Madho Ram, their predecessor-in-interest, they have become owners of the suit property and mutation of inheritance has also been attested in their favour. Shri Gulam Mohammad, predecessor-in-interest of the plaintiffs was tenant of the disputed property which controversy has been finally settled by the learned Appellate Authority vide judgment dated 18.9.1998 passed in Civil Appeal No. 13 of 1997. It ::: Downloaded on - 10/11/2017 12:01:13 :::HCHP ...6...
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has been averred that no agreement was executed by late Shri Madho Ram in favour of late Shri Gulam Mohammad and the so called agreement is forged and fictitious document which has been manipulated by the plaintiff. The receipts relied upon by the plaintiffs are also forged as late Shri Madho Ram never received any amount from late Shri Gulam Mohammad.
r It has been averred that late Shri Gulam Mohammad was tenant of the disputed property and after his death, tenancy has come to an end and defendants No.1 to 3 have become owners of the disputed property. The earlier suit instituted by the plaintiffs for specific performance and declaration was dismissed as withdrawn and no application was moved by the plaintiffs for restoration of the suit and no permission was sought by the plaintiffs from the court to file the second suit and as such, the extant suit is not maintainable. It has been averred that late Shri Gulam Mohammad also never paid installments ::: Downloaded on - 10/11/2017 12:01:13 :::HCHP ...7...
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of the loan amount on behalf of late Shri Madho Ram.
The plaintiffs are in possession of the suit property as tenants.
4. The plaintiffs/respondents herein filed replication to the written statement of the defendants/appellants herein, wherein, they denied the contents of the written statement and re-affirmed and re-
asserted the averments, made in the plaint.
5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
1. Whether the defendant had agreed to sell the property in question in favour of the plaintiffs vide agreement dated 12.1.1983, as alleged?OPP
2. Whether the plaintiff is entitled to a decree for specific performance of agreement dated 12.1.1983 as alleged?OPP.
3. Whether the plaintiffs in the alternative are entitled to a decree for recovery of Rs.48,800/- with interest as alleged?OPP ::: Downloaded on - 10/11/2017 12:01:13 :::HCHP ...8...
4. Whether the plaintiffs are entitled to a decree for permanent prohibitory .
injunction?OPP.
5. Whether the suit is within limitation?OPD
6. Whether the suit is barred under Order 2, Rule 2 CPC?OPD
7. Whether the plaintiffs are estopped from filing the suit by their act and conduct?
OPD.
8. Whether the plaintiffs have no cause of r action?OPD.
9. Whether the plaintiffs are in occupation of property in question as tenant?OPD.
10. Relief.
6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/respondents herein. In an appeal, preferred therefrom by the plaintiffs/respondents herein before the learned First Appellate Court, the latter Court allowed the appeal and reversed the findings recorded by the learned trial Court.
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7. Now the defendants/appellants herein, have instituted the instant Regular Second Appeal before this Court, wherein they assail the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission, on 09.09.2005, this Court, admitted the appeal instituted by the defendants/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:-
1. Whether in law on proper construction and appraisal of Order 23 and its sub rules 1,3 and 4 of Code of Civil Procedure and of Exhibit DW1/F to Ex.DW1/G (plaint and amended plaint in the previous suit?, Ex.DW1/D (order dismissing the earlier suit as withdrawn) and the pleadings in the present case, plaintiffs/respondents were precluded from instituting the present suit?
2. Whether in view of the provisions of Section 61 to Section 68 read with Sections 74 and 77 of the Indian Evidence Act, 1872, agreements Exhibit PW2/A and Ex.PW3/A were not legally and validly proved thereby vitiating the findings of the learned appellate court below to hold to the contrary?::: Downloaded on - 10/11/2017 12:01:13 :::HCHP
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3. Whether for misconstruction and misinterpretation of exhibits PW2/A, PW3/A, .
PX and statements of PW1, PW5 and PW7, the findings of the learned Appellate Court below to hold the suit having been filed within limitation are vitiated?
4. Whether in the face of decree/judgment, Ex. DW1/A restraining permanently Sh. Madho Ram, the predecessor-in-interest of the defendants/appellants to dispose of or alienate the suit property, the agreements Exhibits Ex.PW1/A and PW3/A were illegal, void and unforceable thereby dis-entitling the plaintiffs/respondents to base their claim on these documents?
Substantial question of Law No.1:
8. The learned counsel appearing for the appellants contends, of, the instant suit instituted by the plaintiff before the learned trial Court, attracting, the bar of statutory estoppel contained in Order 23, Rule 1 of the CPC, provisions whereof stand extracted thereinafter:-
"1. Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suit the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules to 14 of Order XXXII extend, neither the suit nor any part of the ::: Downloaded on - 10/11/2017 12:01:13 :::HCHP ...11...
claim shall be abandoned Without the leave of the court.
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(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the court is satisfied,--
a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.
(4) Where the plaintiff,--
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit ::: Downloaded on - 10/11/2017 12:01:13 :::HCHP ...12...
or part of a claim under sub-rule (1), or to withdraw, .
under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs."
especially when, as borne in Ex.DW1/D, the learned trial Court concerned, upon, the previous suit, visibly reflected, in Ex.DW1/G to be inter partes, all the parties at lis herein vis-a-vis hereat also it being with respect to a subject common to the previous suit and to the extant suit, had not, explicitly afforded permission to the plaintiffs, to, reinstitute the extant suit, thereupon, the statutory bar of estoppel, is reinforcingly attracted vis-a-
vis the extant suit. However, though the aforesaid submission, does on its facade, appear to carry a lot of shine, yet its sheen is faded by the fact of the learned counsel appearing for the appellants making a stricto sensu reading of the pronouncement recorded in the previous suit, borne in Ex.DW1/D, reading whereof emanates from his being oblivious to the statement ::: Downloaded on - 10/11/2017 12:01:13 :::HCHP ...13...
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comprised in Ex.DW1/E, statement whereof is of the learned counsel for the plaintiffs, wherein, he had made a very clear communication, of, liberty being granted to the plaintiffs to withdraw the suit also had therein, made, a vivid communication, of, his client being at liberty to file a fresh suit before the appropriate forum.
Ex.DW1/D, therein, making recitals, recitals whereof r Now with stand ad verbatim extracted hereinafter:-
"Keeping in view the separate statement made by the learned counsel for the plaintiffs, the instant suit is dismissed as withdrawn. Parties to bear their own costs.
File after due completion be consigned to the R.R."
Conspicuously, the learned trial Court concerned, as stood, seized with the previous suit, borne in EX.DW1/J, making the order borne in Ex.DW1/D, on anvil, of the statement of the learned counsel appearing for the plaintiff, as is visible on occurrence of hereafter words ::: Downloaded on - 10/11/2017 12:01:13 :::HCHP ...14...
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therein "keeping in view the separate statement made by the counsel for the plaintiffs", hence ordering for dismissal of the suit, as withdrawn, thereupon, the mere fact, of, Ex.DW1/D, not, purveying any explicit permission to the plaintiff, to re-institute a fresh suit, is not sufficient to make any firm inference(s), (a) of, the statutory bar of estoppel egrafted under the provisions of Order 23, Rule 1 of the CPC, standing attracted vis-a-
vis the plaintiffs nor hence, of, the extant suit being barred. The reasons for so concluding are very simple
(b) a clear reading of the recitals borne in Ex.DW1/D, recitals whereof stand extracted hereinabove, making, a categorical echoing of the dismissal of the previous suit, as withdrawn, being singularly anvilled upon the statement of the counsel for the plaintiffs, statement whereof is borne in Ex. DW1/E, wherein firm echoings exist, of, the counsel for the plaintiffs reserving liberty vis-a-vis the plaintiffs, for, filing a fresh suit in the ::: Downloaded on - 10/11/2017 12:01:13 :::HCHP ...15...
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appropriate forum. (c) Thereupon, the order of the learned trial Court concerned borne in Ex.DW1/D, when apparently is made in consonance with the statement of the counsel for the plaintiffs, statement whereof exists in Ex.DW1/E, hence, renders open an inevitable corollary, of, the statement borne in Ex.DW1/E, with occurrence therein of the aforesaid firm apt echoings, hence being borne in mind by the trial Court concerned, while its recording Ex.DW1/D and (d) further sequel therefrom is, of, despite no explicit apposite permission standing granted by the learned trial Court concerned, as stood, seized with the previous suit inter se analogous parties therein vis-a-vis hereat besides qua same controversy(ies) prevailing thereat vis-a-vis hereat, thereupon, it, not, being construable to be barring the plaintiffs, to, reinstitute the instant suit nor the bar of estoppel contemplated in the apt provisions of Order 23, Rule 1 of the CPC being attractable qua the extant suit.
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Consequently, substantial question of law is answered in favour of the respondents and against the appellants.
Substantial question of law No.2 & 39. EX.PW2/A and Ex.PW3/A, are, the photo copies of the relevant documents, relied upon by the learned Appellate Court.
documents,
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Being photocopies of the relevant
imputation of solemnity thereto, was,
impermissible unless prior thereto, the litigant(s)
concerned, had, within the ambit of Section 65 of the Indian Evident Act, sought the apposite leave of the trial Court concerned, naturally for tendering the aforesaid documents as secondary evidence(s) vis-a-vis original(s) thereof. However, the aforesaid documents, despite, prior thereto the apposite leave in respect of theirs being tendered into evidence being either sought or granted, by the learned trial Court, are yet not rendered either unreadable nor inadmissible in evidence, the reason(s) being (a) the witnesses concerned, who tendered the ::: Downloaded on - 10/11/2017 12:01:13 :::HCHP ...17...
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aforesaid documents in evidence, in their examinations-
in-chief, making, clear unequivocally testification(s) qua their valid execution by the executors concerned also upon a reading of their deposition(s) borne in their examinations-in-chief, it is apparent, of, occurrence of to the witnesses r to endorsement of exhibit mark(s) thereon, being a sequel, concerned, producing in contemporaneity thereof, their original(s) in Court. (b) At the time of exhibition marks being endorsed upon the aforesaid documents, the learned counsel for the defendants, omitting to make, any protest with respect, to validities of their exhibition and (c) the witnesses concerned, who tendered the aforesaid documents into evidence, during, the course of their respective cross-
examinations by the counsel for the defendants, not, thereat being put by the latter, any efficacious suggestions, for belying, their depositions, borne in their respective examinations-in-chief, specifically qua their ::: Downloaded on - 10/11/2017 12:01:13 :::HCHP ...18...
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valid execution by the executors concerned nor thereafter any endeavour being made by the counsel for the defendant, for, ensuring adduction of efficacious proof qua their valid execution by their executants, comprised in his moving an application, for the signatures of the executants concerned, being sent, for comparison with their apt admitted signatures, to the expert concerned.
10. EX.PW3/A was executed in the year 1992.
Since this Court for the reasons stated hereinabove has imputed conclusive solemnity qua its valid execution by its executants, thereupon, the findings recorded by the learned First Appellate Court qua the cause of action continuing to survive vis-a-vis the plaintiffs, given the relevant contract remaining unsatiated upto the institution of the plaint, hence, the suit falling within limitation, does not warrant any interference.
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are answered in favour of the respondents and against the plaintiffs.
Substantial questions of law No.4.
11. Ex.DW1/A, exhibit whereof embodies a judgment pronounced by the learned Senior Sub Judge, Chamba, wherein, the predecessor-in-interest of the defendants, one Madho Ram, arrayed as a defendant therein, stood, permanently restrained from disposing or alienating, the suit property, without prior thereto taking permission of the guardian of the minors or of any competent authority, whereas, it is espoused of with Ex.DW3/A standing executed by the aforesaid Madho Ram, without, his in consonance with the verdict borne in Ex.DW1/A taking the permission of the guardian of the minors or of any competent authority, thereupon, imputation of any credence to Ex.DW3/A, is rendered susceptible to skepticism. However, for the aforesaid submission, to hold vigour, it was imperative for the ::: Downloaded on - 10/11/2017 12:01:13 :::HCHP ...20...
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learned counsel for the appellants, to adduce, firm clinching evidence in portrayal of one Madho Ram prior to his executing Ex. PW3/A and Ex.PW2/A, not, taking the apposite prior permission either of the guardian of the minors or of any competent authority(ies). For lack of adduction of the aforesaid apposite cogent evidence, it, cannot be concluded, that, one Madho Ram in executing Ex.PW2/A and Ex.PW3/A, had hence infracted the mandate enshrined ini Ex.DW1/A. Consequently, substantial question of law No.4 is answered in favour of the respondents and against the appellants.
12. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration.
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13. In view of above discussion, the present Regular Second Appeal is dismissed. In sequel, the judgement and decree rendered by the learned first Appellate Court in Civil Appeal No.35/2004/2003 on 17.02.2005 is maintained and affirmed. All pending applications also stand disposed of. No order as to costs.
(Sureshwar Thakur) 17 th October, 2017. Judge.
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