Madras High Court
V. Udayakumar vs C. Dhuraisamy on 3 March, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Second Appeal No.1007 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03-03-2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Second Appeal No.1007 of 2013
and
M.P.No.1 of 2013
---
V. Udayakumar .. Appellant
Versus
1. C. Dhuraisamy
2. P.S. Prakash .. Respondents
Second Appeal filed under Section 100 of Code of Civil Procedure,
1908, to set aside the Judgment and Decree dated 15.04.2013 made in A.S. No.
81 of 2012 on the file of the learned II Additional District Judge, Erode
reversing the Judgment and Decree dated 24.02.2012 made in O.S. No. 215 of
2009 on the file of the learned II Additional Sub Judge, Erode.
For Appellant : Ms. R. Abirami
for Mrs. V. Srimathi
For Respondents : Mr. A. Thiyagarajan for R-1
R-2- Notice Not Ready
JUDGMENT
This Second Appeal has been filed to set aside the Judgment and Decree dated 15.04.2013 made in A.S.No.81 of 2012 on the file of the learned II Additional District Judge, Erode reversing the Judgment and Decree dated 24.02.2012 passed in O.S. No. 215 of 2009 on the file of the learned II Additional Sub Judge, Erode.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 05:36:05 pm ) 1/29 Second Appeal No.1007 of 2013
2. For the sake of convenience, the parties to this Appeal are referred to as per their status before the trial Court, the learned II Additional Sub Judge, Erode as “Plaintiff” and “Defendants” throughout the discussion hereafterwards.
3. The first Defendant in O.S. No. 215 of 2019 on the file of the learned II Additional Sub Judge, Erode is the Appellant in this Second Appeal. The suit in O.S. No. 215 of 2019 was filed by the first Respondent, as Plaintiff, for the relief of specific performance of the agreement dated 24.10.2007.
4. As per the plaint averments, the first Defendant/Appellant was the owner of the suit scheduled property. On 24.10.2007, an agreement of sale was entered into between the Plaintiff and first Defendant. As per the agreement of sale dated 24.10.2007, the sale consideration was fixed at Rs.4,00,000/- out of which a sum of Rs.3,50,000/- was paid by the Plaintiff as advance. According to the Plaintiff, within 18 months from the date of execution of the agreement of sale, the sale deed has to be executed by the first Defendant by receiving the balance sale consideration. However, the Plaintiff states that time was not the essence of the contract. It is also stated that even though the Plaintiff expressed his readiness and willingness to get the contract concluded by paying the balance https://www.mhc.tn.gov.in/judis sale ( Uploaded on: consideration, 13/03/2025 05:36:05 pm ) for the reasons best known 2/29 Second Appeal No.1007 of 2013 to the first Defendant, procrastinated the execution of the sale deed. During December 2008, when the Plaintiff demanded the first Defendant to execute the sale deed by receiving the balance sale consideration, he was informed that he had already sold the property to the second Defendant. When the first Defendant had entered into an agreement of sale, the first Defendant ought to have executed the sale deed only in favour of the Plaintiff. On the other hand, during the subsistence of the agreement of sale between the Plaintiff and first Defendant, the first Defendant had unceremoniously executed the sale deed in favour of the second Defendant and it will not bind the Plaintiff. Therefore, the suit was filed by the Plaintiff for specific performance with a consequential relief of permanent injunction restraining the Defendants from alienating or encumbering the suit property to third parties.
5. On notice, the first Defendant filed a written statement denying the entire plaint averments. It is the contention of the first Defendant that he had never entered into any sale agreement dated 24.10.2007 or received any sale consideration from the Plaintiff. It is his contention that his signature has been forged and sale agreement fabricated by the Plaintiff to file the present suit. It is further stated that the Plaintiff is a stranger to the first Defendant. The suit had been filed only to harass the first Defendant and to extract money from him. When there was no (sale https://www.mhc.tn.gov.in/judis agreement Uploaded entered on: 13/03/2025 into 05:36:05 pm ) on 24.10.2007 or the first 3/29 Second Appeal No.1007 of 2013 Defendant did not sign the so-called agreement, the relief sought for in the plaint cannot be sustained and he prayed for dismissal of the suit.
6. The second Defendant had separately filed a written statement contending that there was no agreement between the Plaintiff and the first Defendant on 24.10.2007 as alleged by the Plaintiff. On 28.12.2007, the first Defendant had executed a valid sale deed in favour of the second Defendant. Even if there was any such agreement, the second Defendant, without knowing the same, had purchased the property for a valid sale consideration from the first Defendant. Thus, it was sought to be contended that the second Defendant is a bona fide purchaser of the suit property for valid consideration and accordingly, he prayed for dismissal of the suit.
7. Before the trial Court, the Plaintiff examined himself as P.W-1 and another witness by name Krishnan was examined as P.W-2 and Ex.P-1 to Ex.P-4 were marked. On behalf of the Defendants, the first Defendant examined himself as D.W-1, one Panchatcharam, Scientific Officer and Document Expert, Forensic Sciences Department, Mylapore, Chennai – 600 004 was examined as D.W-2. The reports of the hand writing expert were marked as Ex.C-1 and Ex.C-2. The second Defendant was examined as D.W-3 and documents were marked https://www.mhc.tn.gov.in/judis as Ex.D-1 ( Uploaded to Ex.D-6 on: 13/03/2025 05:36:05 pmhave ) been marked.
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8. The trial Court, on considering the oral and documentary evidence, particularly the cross-examination of Plaintiff, as P.W-1, pointed out that before instituting the suit, the Plaintiff had not sent any legal notice to the Defendants, but straight-away filed the suit. Further, the Plaintiff was aware of the sale deed executed by the first Defendant in favour of the second Defendant under Ex.B-1 dated 28.12.2007. However, he had not chosen to challenge the same. The trial Court also relied on Ex.C-1 and Ex.C-2 and pointed out that the finger print experts have opined that the signature of the first Defendant contained in the agreement dated 24.10.2007 is not his signature and it materially differs. It was further pointed out that even though the Plaintiff contended that he had received the copies of documents such as property tax receipt and house tax receipts from the first Defendant at the time of entering into the agreement of sale dated 24.10.2007, they were not produced before the trial Court for consideration. The trial Court therefore held that the second Defendant is a bona fide purchaser of the suit property from the first Defendant and it is proper. Accordingly, the trial Court refused to grant the relief sought for in the suit and dismissed it.
9. Aggrieved by the decree and judgment passed in the suit, the Plaintiff had filed an Appeal.
https://www.mhc.tn.gov.in/judis Theon:first
( Uploaded Appellate
13/03/2025 Court
05:36:05 pm ) reversed the decree and
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judgment passed by the trial Court on the ground that as per Ex.B-1, the first Defendant had not handed over the physical possession of the suit property to the second Defendant. Further, the Appellate Court pointed out that the sale consideration with the second Defendant was the same Rs.4 lakhs for which the agreement of sale was entered into between the Plaintiff and the first Defendant. By pointing out the above, the Appellate Court observed that the sale consideration was not enhanced. The appellate Court also observed that the Defendants have only chosen to send Ex.B-1, for comparison to finger print expert and not the admitted signature in Ex.B-2 in which the admitted signature of the first Defendant appears. Accordingly, the appellate Court set aside the judgment and decree passed by the trial Court and allowed the Appeal of the Plaintiff. Therefore, challenging the Judgment and Decree dated 15.04.2013 made in A.S. No. 81 of 2012 on the file of the learned II Additional District Judge, Erode, the present second Appeal is filed.
10. The learned Counsel for the first Defendant/Appellant submitted that the suit for specific performance was filed alleging that the first Defendant signed an agreement of sale with the Plaintiff and received Rs.3,50,000/- as advance out of Rs.4,00,000/- fixed as sale consideration. In the written statement, it was stated by the first Defendant/Appellant that the Plaintiff was a stranger to him, he had not https://www.mhc.tn.gov.in/judis entered ( Uploaded into any on: 13/03/2025 such 05:36:05 pm ) agreement or received the 6/29 Second Appeal No.1007 of 2013 sale consideration of Rs.3,50,000/-. According to the learned Counsel for the first Defendant, before instituting the suit, the Plaintiff had not chosen to issue any legal notice. The Plaintiff also admitted it while being examined as P.W-1 before the trial Court. The deposition of Plaintiff, as P.W-1 is as follows:-
“10/ 1k; gpujpthjp 2k; gpujpthjpf;F 28/12/2007y; fpiuak; bra;J bfhLj;jij 2008 ork;gu; khjk; bjupe;Jbfhz;l gpwF. ehd; ,J Fwpj;J
1. 2 gpujpthjpfSf;F Vw;Wjy; Mw;Wif gupfhuk; ntz;o mwptpg;g[ mDg;gtpy;iy vd;W brhy;tJ rupay;y/ ehd; gyKiw nfl;lnghJ 28/12/2007 fpuaj;ij uj;J bra;J jUfpnwd; vd;W 1k; gpujpthjp fhyk;
jhH;j;jp te;jhu;/ ehd; cld;gof;if gj;jpuj;Jld; K:y Mtz';fisa[k;. gl;lh nghd;w Mtz';fis jhf;fy; bra;atpy;iy vd;why; jtW/ 1k; gpujpthjp K:y Mtzk; nghf;Ftuj;J fHf brhirl;oapy; flDf;fhf xg;gilj;J cs;sjhfr; brhy;yp xg;ge;jk; bra;jhu;/ jhth gupfhu';fis 2k; gpujpthjpf;F vjpuhf nfhu vdf;F cupikapy;iy vd;why; jtW/ 11/ ehd; bfl;l cs;nehf;fj;Jld; 2k; gpujpthjpapd; brhj;Jf;fis mgfupf;ft[k;. kd cisr;rYf;F cz;lhf;ft[k;. rl;lj;jpw;F Kuzhd tifapy; fpiua cld;gof;if vd;w Mtzj;ij cUthf;fpj; jhth jhf;fy; bra;Js;nsd; vd;W brhd;dhy; rupay;y/ tHf;F K:yk; ,y;iy vd;Wk;. Kjy; epiy tHf;F rkepiy tha;g;g[ ,y;yhj ehd; nfhUk; gupfhuk; epiyf;fj;jf;fJ vd;why; rupay;y/”
11. Thus, it is evident that the Plaintiff admits that he had not issued any pre-suit notice demanding the first Defendant to execute the sale deed. Even without issuing such notice, the Plaintiff who claims to have entered into an agreement of sale with the first Defendant had instituted the suit for specific performance of contract for sale of property.
12. https://www.mhc.tn.gov.in/judis The learned ( Counsel for the first Defendant/Appellant further Uploaded on: 13/03/2025 05:36:05 pm ) 7/29 Second Appeal No.1007 of 2013 submits that similarly to prove his readiness and willingness, the Plaintiff had not filed any proof that he is having the balance sale consideration with him. The claim of the Plaintiff is found to be suspicious and ingenuine. The Plaintiff is a real estate broker. He filed similar Suit for specific performance in various Courts within the Erode District. He admitted in his cross- examination that there are 8 other cases in which he is the Plaintiff. Also, he had examined a Witness as P.W-2, who in his cross-examination admitted that he is also a real estate broker. Further, in his cross-examination, P.W-2 admitted that he did not know the location of the house of the first Defendant, whether there is a Mosque, Church or Temple opposite to the house of the first Defendant. To the pointed question as to whether the first Defendant used to sign with his left hand or right hand, he claims that he was not aware of it. The suggestion of the first Defendant that he had not at all been a witness to the sale agreement deed and that he appeared before the Court on the instructions of the Plaintiff was denied by him. P.W-1-Plaintiff, in his cross-examination admitted that he had filed a similar Suit for specific performance before the Court at Erode and 12 Suits are pending before the Courts at Kodumudi. He also admitted that within 18 months time stipulated in the sale agreement deed, he had not deposited the balance amount of the sale consideration either in Court or sent any lawyer's notice demanding the first Defendant to accept Rs.50,000/- by way of cheque https://www.mhc.tn.gov.in/judis andon:execute ( Uploaded the sale 13/03/2025 05:36:05 pm )deed. He also admitted that 8/29 Second Appeal No.1007 of 2013 on the date of filing of the Suit, he had not deposited Rs.50,000/- before the Court. Therefore, the learned II Additional Sub Judge on proper appreciation of evidence arrived at a conclusion that the Plaintiff is not entitled to the relief of specific performance of contract for sale as he had given contradictory evidence regarding his readiness and willingness even though he had alleged that he had demanded for execution of sale deed immediately after expiry of 18 months period and has paid huge amount of Rs.3,50,000/-. For the meagre balance amount of Rs.50,000/-, it is surprising that 18 months had been mentioned in the sale agreement deed which is found to be unnatural. Therefore, the learned II Additional Sub Judge had observed that the evidence of P.W-1 and P.W-2 were not reliable enough to grant a decree in favour of the Plaintiff and thereby dismissed the Suit.
13. The learned Counsel for the Appellant invited the attention of this Court to the forensic expert opinion regarding the signature of the first Defendant in the suit agreement of sale. Since the first Defendant did not admit his signature under Ex.A-1, the same was sent to the Forensic Expert. The Forensic Expert had given his opinion as follows:-
“The person who wrote the red enclosed signatures stamped and marked A1 to A9 did not write the red enclosed signatures similarly stamped and marked Q1 to Q4.” https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 05:36:05 pm ) 9/29 Second Appeal No.1007 of 2013
14. The learned trial Judge in his judgment in Paragraph No.14 relied on the Expert opinion under Ex.C-1 and Ex.C-2 whereby the disputed signature was sent to the Forensic Expert and the Forensic Expert gave a finding that the signature found in the sale agreement in Ex.A-1 was not signed by the person who signed the sale deed in Ex.B-1. Based on the expert opinion, the learned II Additional Sub Judge arrived at a finding that the claim of the first Defendant in the written statement was proved by sending the document under Ex.A-1 and Ex.B-1 to the Expert opinion. The argument of the learned Counsel for the Plaintiff to reject the Expert opinion under Ex.C-1 and Ex.C-2 as the Defendant had sent the document under Ex.A-1 to the Expert opinion and obtained opinion without sending other admitted documents was specifically rejected. On the contrary, the Second Additional District Judge in A.S.No.81 of 2012 rendered an erroneous judgment. As per the written statement filed by the first Defendant, the Plaintiff is not known to him or he has not seen him. It is specifically stated that the Plaintiff is a stranger and he denied his signature in the sale agreement deed dated 24.10.2007. The learned Sub Judge in the course of discussions of evidence in Paragraph Nos.9 to 16 discussed the evidence and arrived at a right conclusion that the Plaintiff had not proved the case. When the Suit property was subjected to mortgage with the Bank, how the Plaintiff could enter into the sale agreement with the first Defendant is to be explained https://www.mhc.tn.gov.in/judis by the ( Uploaded Plaintiff.
on: 13/03/2025 Since 05:36:05 pm ) the Plaintiff had not come 10/29 Second Appeal No.1007 of 2013 up with a satisfactory version, the learned II Additional Sub Judge had dismissed the Suit by Judgment dated 24.02.2012. However, the Appellate Court, on an erroneous view and misconception interfered with the well considered judgment of the trial Court. Therefore, the learned Counsel for the Appellant prayed for allowing this Second Appeal by setting aside the Judgment of the Appellate Court and to restore the Judgment of the trial Court.
15. Per contra, the learned Counsel for the first Respondent/Plaintiff submitted that the second Defendant is none other than the son in law of the first Defendant. Only with an ulterior motive to defeat the sale agreement, the first Defendant had sold the property to his son in law. Both are residing in the very same property. Further, the first Defendant denied his signature in the agreement of sale in Ex.A-1. The first Defendant also denied his signature in the vakalat and the written statement filed by him. The appellate Judge, observed that the first Defendant has not come forward with the correct facts and the agreement of sale has been breached wilfully. As regards the comparison of signature of the first Defendant by the expert opinion, the Appellate Judge rightly observed that the first Defendant had not chosen to send his admitted signature in other documents for comparison and therefore, the opinion of the expert is insignificant for consideration in this case. The learned Counsel further submitted https://www.mhc.tn.gov.in/judis that when ( Uploaded on: 13/03/2025 thepm Plaintiff 05:36:05 ) has proved that he 11/29 Second Appeal No.1007 of 2013 had entered into an agreement of sale with the first Defendant, the Appellate Court is right in setting aside the judgment of the trial Court. He therefore prayed for dismissal of this Appeal.
16. The Second Appeal has been admitted and the following Substantial questions of law are framed for consideration:-
i) Whether the lower appellate Court is right in reversing the well considered judgment of the trial Court in the absence of perversity in the approach of the trial Court.
ii) In a suit for specific performance, whether a Plaintiff is entitled to a decree when he had suppressed material facts before the Court?
iii) when the Plaintiff had failed to establish readiness and willingness and had not even issued a legal notice, is lower appellate Court right in conceding the case of the Plaintiff?
iv) when the report of the expert established that the signature in Ex.A-1 is not that of the 1st Defendant, is lower appellate Court right in rejecting it on grounds not even set forth by the Plaintiff?
v) whether the lower appellate Court had not misplaced the burden of proof on the Defendant when the obligation is on the Plaintiff to prove this case, including the genuineness of the agreement under Ex.A-1?
vi) whether the lower appellate Court ought not to have seen the signature in Ex.A-1 is at variance in every page of the document and the recitals are per se artificial and under those circumstances, whether the lower appellate Court is justified in granting an equitable remedy of specific performance?
17. Heard the learned Counsel for the Appellant and the learned Counsel for the Respondent.
18. https://www.mhc.tn.gov.in/judis Perused the pleadings in the Plaint, ( Uploaded on: 13/03/2025 written 05:36:05 pm ) statement, grounds of 12/29 Second Appeal No.1007 of 2013
Appeal in A.S.No.81 of 2012 and the grounds of the present Second Appeal. Perused the evidence of Plaintiff as P.W-1 to P.W-2, the documents marked on the side of the Plaintiff as Ex.A-1 to Ex.A-4, the evidence of the Defendants as D.W-1 to D.W-3 and the documents marked under Ex.B-1 to Ex.B-6.
19. On consideration of the rival submission and on perusal of the Judgment of the learned II Additional Sub Judge in O.S.No.215 of 2009 dated 24.02.2012 and the discussion of evidence by the learned II Additional District Judge in A.S.No.81 of 2012 dated 15.04.2013, it is found that the discussion of the evidence by the learned II Additional District Judge is per se in contravention of the established principles of law and not found acceptable as per the Provisions of Indian Evidence Act.
20. The trial Court found so many loopholes in the case projected by the Plaintiff. The Plaintiff said to have paid a major portion of Rs.3,50,000/- as advance leaving a meagre amount of Rs.50,000/- as balance. For payment of the remaining Rs.50,000/- no normal prudent man would seek for 18 months time for execution of sale deed. Such a conduct of the Plaintiff is unnatural. A person who pays major portion of the sale consideration as advance, will only expect the land owner to part with his land swiftly by paying the balance sale consideration to him. Thus, https://www.mhc.tn.gov.in/judis this conduct ( Uploaded of05:36:05 on: 13/03/2025 the Plaintiff pm ) is abnormal and it was 13/29 Second Appeal No.1007 of 2013 taken note of by the trial Court. The Plaintiff also has not come up with any explanation as to why he has to take 18 months to pay the balance amount If the Plaintiff was willing to perform his part of contract, he ought to have issued lawyer's notice demanding the first Defendant to execute the sale deed within the time specified in the sale agreement deed dated 24.10.2007 and then filed the suit. Further, in the plaint or in any part of the pleading, there is nothing to show as to whether the Plaintiff paid the advance amount by way of cash or cheque or in any other manner. If the Plaintiff had issued a pre-suit notice before instituting the suit, the first Defendant would have come up with a version as to the veracity or genuineness of the agreement of sale. Or, the Plaintiff could have enclosed a cheque or demand draft for the balance sale consideration to the first Defendant. Or, the Plaintiff could have demanded the first Defendant to provide the Bank account for depositing the balance consideration of Rs.50,000/-. Therefore, it is held that the non-issuance of pre- suit notice and not following the above said established procedures to be followed in a suit for specific performance of contract is fatal to the case projected by the Plaintiff.
21. Another interesting aspect of the case is that on the alleged date of entering into sale agreement, the property in question was under mortgage with the Bank. When the property https://www.mhc.tn.gov.in/judis ( Uploaded is encumbered, on: 13/03/2025 no) normal prudent purchaser 05:36:05 pm 14/29 Second Appeal No.1007 of 2013 would come forward to purchase the property. Or, if the property is under mortgage, there must be a reference about it in the agreement of sale. In this case, there is nothing to show that the Plaintiff was aware of the fact that the suit property was under mortgage with the Bank at the time when the alleged agreement of sale was entered into with first Defendant. This exposes the conduct of the Plaintiff in creating an agreement of sale and strengthen the defence of the first Defendant that he did not know who the Plaintiff is and he was a stranger to him.
22. The Plaintiff in his cross-examination admits that he was a real estate broker. He also admitted that for having paid the sum of Rs.3,50,000/- he has not obtained any acknowledgement from the first Defendant. This is quite unnatural. A person who pays a substantial sum of Rs.3,50,000/- must have demanded an acknowledgement. In the present case, without even getting any acknowledgement, the claim of the Plaintiff that he has paid Rs.3,50,000/- to the first Defendant is very hard to accept.
23. One another legal flaw committed by the Plaintiff in this case is that he has instituted the suit in which a written statement was filed by the first Defendant saying that the Plaintiff is a stranger and he has not entered into any such agreement with him.
https://www.mhc.tn.gov.in/judis Theon: 13/03/2025
( Uploaded first Defendant
05:36:05 pm ) denied having signed the
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agreement of sale. If it is so, as a Plaintiff, the burden is on the Plaintiff to send the agreement of sale for comparison of the signature of the first Defendant. However, in the present case, the first Defendant himself had taken such an initiative and sought for comparison of his signature by the expert. The expert was also examined before the trial Court as D.W-2. Thus, the Plaintiff failed to discharge the burden on his shoulder. On the other hand, the first Defendant, to clear the air of controversy, had taken out an application to compare his signature and the reports under Ex.C-1 and Ex.C-2 have been produced through D.W-2. The expert opinion is to the effect that the signature of the first Defendant in the admitted document materially differs in the suit agreement of sale. Therefore, it is clear that the first Defendant had not signed the agreement of sale and the Plaintiff failed to prove it in a manner known to law. The trial Court, on the basis of the expert opinion, dismissed the suit filed by the Plaintiff.
24. Yet another flaw committed by the Plaintiff is that he admitted that he has knowledge about the first Defendant alienating the land covered in the agreement of sale to the second Defendant. However, the Plaintiff had not sought for a declaratory relief to declare the sale deed executed by the first Defendant in favour of the second Defendant as null and void. Though it is sought to be projected that( Uploaded https://www.mhc.tn.gov.in/judis the first Defendant on: 13/03/2025 is pm 05:36:05 the) father in law of the second 16/29 Second Appeal No.1007 of 2013 Defendant, the fact remains that an encumbrance had been made in the land covered in the agreement of sale. If the Plaintiff is really aggrieved by such encumbrance, he ought to have sought for a declaratory relief as well.
25. Given the facts and circumstance of the case, this Court is of the view that the Plaintiff ought to have deposited balance sale consideration in the Court or sent legal notice to the first Defendant calling upon him to execute the sale deed. Even in the Plaint, he claims that to defeat the sale agreement, the first Defendant had executed the sale deed in favour of the son-in-law/second Defendant. On the date of filing of the Suit, the sale was executed in favour of the second Defendant and the second Defendant becomes the lawful owner of the land. Therefore, the Plaintiff ought to have sought to declare the sale deed in favour of the second Defendant as null and void. The Plaintiff had not claimed such relief. The Plaintiff had only sought to enforce the sale agreement, the execution of which has not been proved in a manner known to law. Therefore, the learned II Additional Sub Judge had rightly on the basis of Expert opinion arrived at a conclusion that Ex.A-1 is not genuine and bona fide sale agreement deed.
26. The Plaintiff is not a layman and he has filed nearly 12 cases in the Courts at Kodumudi( Uploaded https://www.mhc.tn.gov.in/judis whichon:are Suits05:36:05 13/03/2025 based pm ) on pro-note, money suits, 17/29 Second Appeal No.1007 of 2013 cheque cases under Section 138 of the Negotiable Instruments Act and also Suits for specific performance. Under those circumstances, the Plaintiff would have known that before instituting the suit, a pre-suit notice is necessary but he has not fulfilled such a responsibility of issuing a lawyer's notice before filing the suit. Therefore, the Suit was rightly dismissed by the learned II Additional Sub Judge whereas the learned II Additional District Judge had arrived at an erroneous conclusion by relying upon the cross-examination of D.W-1 denying his admitted signature in the vakalath and written statement. The Appellate Court failed to take note of the fact that it is the Plaintiff who has to discharge his burden by sending the admitted signature of the first Defendant but for reasons best known, he has not discharged such a burden. The Civil Court is expected to decree or grant relief to the litigants based on the principles that the Plaintiff had to stand or fall on his own strength and not by picking holes in the evidence of the Defendant. If that principle is applied, the discussion of evidence by the learned II Additional District Judge, Erode is perverse by picking holes in the evidence of D.W-1.
27. The Expert opinion under Ex.C-1 and Ex.C-2 adds strength to the defence of the first Defendant in denying his signature in Ex.A-1 and he succeeded in such attempt. On the side of Defendants, D.W-2, Scientific Officer of the Forensic Department https://www.mhc.tn.gov.in/judis also deposed ( Uploaded on: 13/03/2025 05:36:05 pm ) that the agreement of sale 18/29 Second Appeal No.1007 of 2013 does not contain the signature of the first Defendant.
28. To a pointed question as to whether the Plaintiff had Rs.3,50,000/- on the date of sale agreement or the wherewithal to mobilise such amount, he replied that he does not have house property and he is residing in a rental house. However, he claims that he will always have at least Rs.3,00,000/- in his account. Having said so, the Plaintiff had not produced any Bank passbook to show the amount in his account. Further, in the pleadings, the Plaintiff claims that he had paid Rs.3,50,000/- on 24.10.2007 whereas in the oral evidence he claims that he had not paid Rs.3,50,000/- so far, but he is ready and willing to pay the amount. The entire case of the Plaintiff for specific performance was built on the premise that the Plaintiff paid Rs.3,50,000/- and balance payable is only Rs.50,000/-. However, during the cross-examination, he had turned the table and said that he is having ready money available to pay and so far he has not paid it to the first Defendant. Therefore, the foundation for laying the suit itself is very weak. The plea of the Plaintiff that he has already paid is entirely different from his deposition that he has ready money available and he will pay the amount to the first Defendant. Therefore, when the Plaintiff had not paid the amount to the first Defendant, then, there is no cause of action at all to institute the suit and the suit ought to have been rejected at the threshold. Therefore, https://www.mhc.tn.gov.in/judis the well-reasoned ( Uploaded on: 13/03/2025 05:36:05 pm ) Judgment of the learned 19/29 Second Appeal No.1007 of 2013 trial Judge/II Additional Sub Judge, Erode, cannot be considered as perverse. The first Appellate Court while reversing the well considered Judgment of the learned trial Judge has committed a grave error and it is liable to be interfered with by this Court. Accordingly, the substantial questions of law No. 1 and 2 are answered against the Plaintiff and in favour of the first Defendant.
29. In a suit for specific performance, the Plaintiff is not entitled to a decree when he had suppressed the material facts. In the pleadings, he had stated that he paid Rs.3,50,000/- and Rs.50,000/- is balance amount whereas in the evidence he has casually stated that he is yet to make such payment but is ready to pay it. Therefore, the defence of the first Defendant that the Plaintiff is a stranger assumes significance in this case. Therefore, there is suppression of material fact by the Plaintiff.
30. The Plaintiff failed to establish his readiness and willingness and had not issued a legal notice. The Plaintiff also did not produce the statement of Bank account or any other evidence to show that he is resourceful enough and had the wherewithal to pay the sale amount. The trial Court refused to accept such a plea, but the lower Appellate Court erroneously, without any basis, accepted the case of the Plaintiff on mere surmises and technicalities without appreciating the( Uploaded https://www.mhc.tn.gov.in/judis evidence on record.
on: 13/03/2025 05:36:05 pmIn ) such circumstances, the 20/29 Second Appeal No.1007 of 2013 substantial question of law -3 is also answered in favour of the first Defendant and against the Plaintiff.
31. Substantial Question of Law No. (iv): When the report of the expert established that the signature in Ex.A-1 is not that of the first Defendant, is the lower Appellate Court right in rejecting it on the grounds not even set forth by the Plaintiff?
32. The finding of the learned II Additional District Judge, rejecting the evidence under Ex.C-1 and Ex.C-2 in favour of the Plaintiff is found unreasonable and it cannot be a ground to grant decree to the Plaintiff which amounts to granting a decree based on the picking holes in the evidence of the Defendant. The finding of the learned II Additional District Judge, Erode in A.S. No. 81 of 2012 dated 15.04.2013, particularly the discussion of evidence in paragraph No.8 is found unreasonable. The Plaintiff himself admitted in cross-examination that he is ready to pay Rs.3,00,000/- (Rupees Three Lakhs only) but refused to show proof that he has Rs.3,00,000/- (Rupees Three Lakhs) with him on the date of examination as P.W-1. Therefore, the Court has to draw adverse inference as against the Plaintiff. Added to that, the Plaintiff had not issued Lawyer's notice prior to filing of the suit demanding the first Defendant to come (and https://www.mhc.tn.gov.in/judis register Uploaded the 05:36:05 on: 13/03/2025 sale deed.
pm ) Also, as per the plaint 21/29 Second Appeal No.1007 of 2013 averments, he is alleged to have paid Rs.3,50,000/- (Rupees Three Lakhs and Fifty Thousand only) on the date of execution of Ex.A-1 sale agreement deed. Whereas in the evidence, he claims that he is still ready to pay Rs.3,00,000/- (Rupees Three Lakhs only) to the first Defendant. That shows he had not paid the amount as was stated in the plaint. Those circumstances had to be considered by the Court but that was not considered by the Appellate Court while granting the decree in favour of the Plaintiff. Further, P.W-2 who claims to have been the attesting witness admits that he was not aware of the first Defendant's house whether it is nearer to Church or Mosque or Temple. Also he admits that he had not observed the signing of Ex.A-1 by the first Defendant. Whether the first Defendant is a left handed man or right handed man while affixing his signature was also not known to him. Under those circumstances, naturally, the Court will not believe the evidence of P.W-2 who claimed to be a attesting witness. Above all, the Plaintiff as well as P.W-2 admits that they are real-estate brokers, particularly, the Plaintiff admits that there are 12 suits instituted by him against various persons in and around Erode and Kodumudi. In the evidence of the Plaintiff, he admits that he is residing in a rented building and owns 20 cents of land. But he did not file a scrap of document to substantiate his claim that he has enough resources. Therefore, the Court has to necessarily draw adverse inference against the Plaintiff. In the absence of evidence to show https://www.mhc.tn.gov.in/judis hison:readiness ( Uploaded and pmwillingness, 13/03/2025 05:36:05 ) mere uttering of 22/29 Second Appeal No.1007 of 2013 words that, “the Plaintiff is ready and willing”, will not help his case. The substantial question of law IV is answered in favour of the first Defendant and against the Plaintiff.
33. Substantial Question of Law No. (v): Whether the lower appellate Court had not misplaced the burden of proof on the Defendant when the obligation is on the Plaintiff to prove his case, including the genuineness of the agreement under Ex.A-1?
34. In the light of the above discussion to Substantial Questions of law 1 to 4 this Court is of the view that the first Defendant denied his signature in Ex.A1 and filed an application to compare his admitted signature to the experts for opinion. The first Defendant succeeded in such attempt and marked Ex.C-1 and Ex.C-2 through P.W-2. It is needless to mention that such an action ought to have been resorted to by the Plaintiff and discharged his burden. But it was not done by the Plaintiff, who instituted the suit. However, the first Appellate Court had erroneously placed the burden of proof on the Defendants. Invariably in all cases, the Plaintiff in a Civil Suit has to prove his/her case through cogent, oral and documentary evidence. It is well laid down principle by the Hon'ble Supreme Court as well as the High Court that the Plaintiff has to stand or fall on the strength https://www.mhc.tn.gov.in/judis ofon:his ( Uploaded or her05:36:05 13/03/2025 own pm case ) and not by picking holes 23/29 Second Appeal No.1007 of 2013 in the evidence of the Defendants. Therefore, by granting a decree by rejecting the evidence of D.W-1 and the expert opinion under Ex.C1 and C-2, the learned II Additional District Judge has committed an error in reversing the well considered judgment and decree of the learned trial Judge. Therefore, the substantial question of law (v) is answered in favour of the Defendants and against the Plaintiff.
35. Substantial Question of Law No. (vi): Whether the lower appellate Court ought not to have seen the signature in Ex.A-1 is at variance in every page of the document and the recitals are per se artificial and under those circumstances, whether the lower appellate Court is justified in granting an equitable remedy of specific performance?
36. In the light of the discussion to substantial questions of law (i) to
(v) above, this Court holds that when the first Defendant had claimed that Plaintiff is a stranger and disputed Ex.A-1, it is for the Plaintiff to prove the same. On naked eye, the signature found in Ex.A-1 on every page if found at variance it will not eclipse the expert evidence. When expert evidence is in place, there is no requirement to compare the signatures with naked eye. The trial Judge on proper appreciation of evidence arrived at a finding that Ex.A-1 contains the signature of (first https://www.mhc.tn.gov.in/judis Defendant Uploaded on: 13/03/2025which is ) at variance on every page.
05:36:05 pm 24/29 Second Appeal No.1007 of 2013 The finding by the hand writing expert/forensic expert under Ex.C1 and Ex.C-2 stating that the signature under Ex.A-1 to Ex.A-9 is by different person and not that of the person who signed under Ex.Q-1 to Ex.Q-4, had to be given due weightage as the expert in Forensic Department is an expert regarding hand writing. Therefore, Ex.C-1 and Ex.C-2 cannot be rejected in the light of the reported ruling cited by the learned Counsel for the Plaintiff before the learned first Appellate Court/learned II Additional District Judge, Erode, which claims that in comparing the signatures the admitted signatures of the persons who disputes the signatures, had to be obtained which are prior to the date of the disputed document. The expert opinion is to be given due weightage by the Court. Here the learned II Additional Sub Judge, Erode had refused to grant the decree not on the disputed signature alone but by considering the entire case projected by the Plaintiff. The other circumstances are the property was encumbered with the Bank at the time when the agreement of sale was allegedly entered into. If so, what was the necessity for the first Defendant to enter into sale agreement with the Plaintiff was examined by the trial Court. Without obtaining encumbrance certificate what was the necessity to Plaintiff to file the suit. When he claims he had obtained encumbrance certificate it is upon him to mark it as a document before the trial Court, but he had not marked it. He claimed in the plaint averments that he had obtained Encumbrance Certificate where https://www.mhc.tn.gov.in/judis ( Uploadedfrom he came on: 13/03/2025 topmknow 05:36:05 ) that the first Defendant 25/29 Second Appeal No.1007 of 2013 had executed sale deed in favour of the second Defendant on 28.12.2007. If that be so, it is for the Plaintiff to mark the parent deed in the name of first Defendant which he ought to have given in custody to the Plaintiff . The Plaintiff, having alleged to have paid Rs.3,50,000/- has not substantiated it with any other evidence. Therefore, the totality of the circumstances if analysed by the Court, naturally the claim of the Plaintiff will not be treated as proved. Therefore, the learned trial Judge rightly refused to grant relief to the Plaintiff. The learned II Additional District Judge, ignored those circumstances and rejected the evidence of Ex.C-1 and Ex.C-2 expert opinion wholly on an erroneous consideration. The substantial question of law (iv) is therefore answered in favour of the Defendants 1 and 2 and against the Plaintiff.
37. In the result, this Second Appeal is allowed with costs throughout. The judgment and decree granted by the first Appellate Court, the learned II Additional District Judge, Erode in A.S.No.81 of 2012, dated 15.04.2013 is set aside. The judgment and decree of the learned II Additional Sub Judge, in O.S.No.215 of 2009, dated 24.02.2012 is confirmed and restored with cost throughout. Consequently, connected miscellaneous petitions are closed.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 05:36:05 pm ) 26/29 Second Appeal No.1007 of 2013 03-03-2025 Index:Yes/No Internet: Yes/No Speaking Order/Non-speaking Order dh/srm To
1. The II Additional District Judge, Erode.
2. The II Additional Sub Judge, Erode.
3. The Section Officer, V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 05:36:05 pm ) 27/29 Second Appeal No.1007 of 2013 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 05:36:05 pm ) 28/29 Second Appeal No.1007 of 2013 SATHI KUMAR SUKUMARA KURUP, J.
dh/srm Pre-delivery Judgment made in Second Appeal No.1007 of 2013 03-03-2025 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/03/2025 05:36:05 pm ) 29/29