Madhya Pradesh High Court
Ser Singh And Ors. vs Kripal Singh (Deceased) Through L.Rs. ... on 6 January, 2006
Equivalent citations: AIR 2006 MADHYA PRADESH 199, 2007 AIHC NOC 69
Author: U.C. Maheshwari
Bench: U.C. Maheshwari
JUDGMENT U.C. Maheshwari, J.
1. Appellants/plaintiffs have preferred this appeal under Section 100 of the CPC being aggrieved by the judgment and decree dated 9-8-1990 passed by Additional District Judge, Khurai in Regular Appeal No. 19A/84 (102A/89) reversing the judgment and decree dated 17-2-1984 cpassed by the Third Civil Judge Class-2, Khurai in Civil Original Suit No. 42-A/1977 whereby the suit for specific performance was decreed in favour of appellants.
2. According to the factual matrix of the case, late Gorelal, the predecessor of the appellants, has filed a suit for specific performance against Kripal Singh, the predecessor of respondent Nos. 1A to 1F and respondent No. 2. Such suit was based on compromise decree dated 20-4-1974 passed in Civil Suit No. 12-A/1970. According to this compromise, Kripal Singh and respondent No. 2 were bound to execute a sale-deed in favour of Gorelal regarding agriculture land bearing Survey No. 96/1 area 0.75 decimal for consideration of Rs. 3,200/-. After paying Rs. 2,926/- deducting the earnest money and for the land bearing Survey No. 79/1 area 1.35 decimal for a consideration of Rs. 600/- such contract should have been performed on or before 1-6-1974. It is also alleged in the plaint that deceased Gorelal and his son Bhagwandas along with amount of consideration went to the office of the Registrar on 31-5-1974 to get the execution and registration of the sale-deeds, in this regard necessary stamps were also purchased by them but only respondent No. 2 came there and asked to Gorelal that Kripal Singh had gone for some religious work and the sale-deed would be executed on 1 -6-1974. On account of this Gorelal left the stamps papers with petition writer and went back to the village. As per request of respondent No. 2, the said Gorelal along with his son and attesting witnesses had come to the Registrar Office on 1-6-74 at 11 o'clock. After waiting for some time when respondents did not come, then they went to the Bank and deposited the aforesaid amount, for the payment consideration to the respondents. Thereafter Gorelal has informed to the respondents through telegraphic notices regarding his readiness and willingness to perform the contract of his part. Then Kripal Singh and respondent No. 2 came there who have been informed by Gorelal about depositing the money with the Bank. Subsequently, on their demand the amount was managed from other sources to perform his part of the contract. But the respondents, instead of executing the sale-deed, left the office of the Registrar, saying that now they will see how the sale-deed is executed. On non-performing the contract by respondents on their part, the predecessor of appellants had filed the suit as mentioned above.
3. In the written statement of respondent Nos. 1 and 2, the averments made by the appellants/plaintiffs, have been denied. According to it, the terms and conditions of the compromise decree, dated 20-4-1974, was violated by the predecessor of the appellants as he was not ready and willing to perform his part of the contract; while respondent No. 2 and Kripal Singh predecessor of respondent Nos. 1(A) to 1(F) were always ready and willing to perform their part of the contract regarding execution of the sale-deed up to 1-6-1974 they also mentioned other circumstances in respect of it.
4. In view of the pleadings of the parties, issues were framed by the trial Court. The evidence was recorded. On appreciation of the same the suit was decreed by the trial Court. On appeal, the aforesaid decree was set aside by allowing the appeal; hence, the appellants have preferred this appeal. The same was admitted on the following substantial question of law:
Whether the findings arrived at by the lower appellate Court are perverse ?
5. The learned Senior Advocate Shri L. S. Baghel assisted by Shri D. S. Baghel, Advocate have vehemently argued that plain-tiff-Gorelal was always ready and willing to perform his part of the contract as settled in between the parties. In pursuance of it, the deceased Gorelal, his son and attesting witnesses along with amount of consideration went to the office of Sub-Registrar on 31-5-1974 at 11.00 o'clock but Kripal SinjPh and respondent No. 2 did not present about 12.00 O'clock respondent No. 2 came there and asked to Gorelal for executing the sale-deed on dated 1-6-1974, as Kripal Singh the principal defendant No. 1 has gone outside for some religious work. On his assurance Gorelal had agreed for it. Prior to this assurance stamps for execution of the sale-deed had already been purchased the same were left with the petition writer for the next day. On next day, i.e., 1-6-1974 when Gorelal and aforesaid other persons including son Bhagwandas came to the Registrar Office and stayed there for sufficient time but respondent No. 2 and said Kripal Singh did not come up to 12.00 o'clock in noon thus the amount was deposited in the Bank. Thereafter they came there then Gorelal had arranged the amount of consideration from some other sources to perform his part of the contract but due to one reason or the other the respondents have not performed their part of the contract and broken the same. In this regard some telegraphic notices were also given to the respondents. According to him, all these circumstances have been proved by admissible and reliable evidence and the same as considered by the trial Court in passing the decree and there was no circumstance to reverse the same, the appellate Court ought to have affirmed the decree of trial Court but on reappreciation of the evidence, it has been set aside in wrong premises and prayed for restoring the decree of the trial Court by setting aside the decree of the appellate Court.
6. While, on the other hand, Shri R. K. Samaiya, learned Counsel for respondent Nos. 1(A) to 1(F) and respondent No. 2, has submitted that as per provisions of Sections 101 to 104 of the Evidence Act, the concerning party is duty bound to prove the fact which he pleads in the plaint or written statement. In the present case, as per compromise agreement the said Gorelal was bound to prove his readiness and willingness to perform the contract of his part regarding payment of the consideration for execution of the sale-deed. This fact could have been proved by Gorelal himself by entering in the witness-box but he did not enter, although on his behalf Shri S. K. Dubey, Bank Officer in whose Bank the amount was deposited, his son Bhagwandas, and as alleged the attesting witnesses; Babulal and Chandra Prakash Tiwari have been examined but Gorelal-plaintiff himself was neither examined nor any sufficient explanation regarding his non-examination was put forth on the record. According to him, Gorelal was alive up to deliver of the judgment by the trial Court and he had died during pendency of the appeal. Non-examination of Gorelal was a sufficient circumstance to draw an inference against him regarding non-performance of the contract of his part. Therefore, the trial Court has committed grave error in decreeing the suit of the appellant in the lack of statement of Gorelal while the approach of the appellate Court was in accordance with the settled principles of law and justified the decree of the appellate Court. He also placed his reliance on some decided cases.
7. Having heard the learned Counsels, on perusing the record, it appears that principal plaintiff-Gorelal the predecessor of appellants has not entered in the witness-box and he has not deposed his version regarding his readiness and willingness to perform his part of the contract. In the absence of his statement, there was sufficient circumstance to draw adverse inference against him that he was not ready and willing to perform his part and on the same line the case was appreciated by the appellate Court in reversing the decree of the trial Court.
8. Non-examination of plaintiff or the party concerned who knows the material fact of the contract is sufficient circumstance to draw adverse inference against him. This legal position is settled by the various decisions of the Courts.
9. In the matter of Martand Pandharinath Chaudhuri v. Radhabai Krishnarao Deshmukh reported in AIR 1931 Bom 97, it was held as under:
It is the bounden duty of a party personally knowing the facts and circumstances to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case: AIR 1927 PC 230, Rel. on.
10. On earlier occasion this Court has also answered this question in the matter of Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat , in which it is held as under:
4. When a material fact is within the knowledge of a party and he does not go into the witness-box without any plausible reason, an adverse inference must be drawn against him. A presumption must be drawn against a party who having knowledge of the fact in dispute does not go into the witness-box particularly when a prima facie case has been made out against him.
11. This question has also been answered by the Apex Court in the matter of Vidhyadhar v. Manikikrao in which it is held as under:
16. Where a party to the suit does not appear into the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurobaksha Singh v. Gurdial Singh AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR 1931 Bom 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nand-kishore Rawat , also followed the Privy Council decision in Sardar Gurbakhsh Singh's case AIR 1927 PC 230 (supra). The Allahabad High Court in Arjun Singh v. Virender Nath held that if a party abstains from entering the witness-box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness-box.
12. In view of the aforesaid discussion, I answer the aforesaid substantial question of law in negative and against the appellants. The findings given by the Appellate Court are not perverse or contrary to the record in any manner. Hence by affirming the impugned judgment and decree passed by the appellate Court this appeal is hereby dismissed. There shall be no orders as to costs. Decree be drawn up accordingly.