Himachal Pradesh High Court
Rajesh Kumar Sood .....Appellate/ vs Parvej Nowrojee And Others on 4 August, 2016
Bench: Mansoor Ahmad Mir, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA OSA No. 2 of 2007 Reserved on: 27th July, 2016.
Pronounced on: 04.08.2016 .
Rajesh Kumar Sood .....Appellate/plaintiff.
Versus Parvej Nowrojee and others .......Respondents/defendants.
Coram:
of The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice The Hon'ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting? Yes.
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For the appellant: Mr.Ramakant
Advocate,
Sharma,
with
Senior
Ms.Devyani
Sharma, Advocate.
For the respondents: Mr.Bhupinder Gupta, Senior Advocate,
with Mr.Janesh Gupta, Advocate.
____________________________________________________________________________ Mansoor Ahmad Mir, Chief Justice This appeal is directed against the judgment and decree, dated 19th December, 2006, passed by a learned Single Judge of this Court in Civil Suit No.32 of 2001, titled Rajesh Kumar Sood vs. Jamshed Nowrojee and others, whereby the suit of the appellant/plaintiff came to be dismissed, (for short, the impugned judgment).
2. Appellant/plaintiff invoked the original jurisdiction of this Court by the medium of civil suit, whereby the plaintiff sought for the following reliefs on the grounds taken in the plaint:
::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 2"a) By passing a decree for possession by way of specific performance of agreement dated 17.7.2000 in favour of the plaintiff and against the defendants with respect to the properties comprised in Khata No.123, khatauni number .
269, khasra numbers 463 to 472 and 474, total khasras 11, measuring 0-16-92 Hects. of Up Mohal Mcleodganj, mauza Dharamshala, District Kangra, as per jamabandi for the year 1992-93 as well as the property comprised in kahsra numbers 475, 476, 477 and 251 total khasras 4 measuring 0- of 23-71 Hects. of Khata number 180 min, khatauni number 355 of Up Mohal Mcleodganj, District Kangra, H.P. as per jamabandi for the year 1992-93 with a further direction to rt the defendants to execute and get the necessary sale deed registered after purchasing the stamp papers for the purpose of getting the sale deed executed and registered in favour of the plaintiff;
b) In case the defendants failed to do the needful, then the needful may be got done under the orders of this Hon'ble Court by an officer duly appointed to execute and get the sale deed registered and the defendants be also directed to perform all acts to facilitate and effectuate the transfer of the property by them in favour of the plaintiff including obtaining of necessary income tax clearance certificate as required under Chapter 20 and Section 230-A in Form No.34-A of the Income Tax Act;
c) In the alternative, it is submitted that if for any reason whatsoever, a decree for specific performance of the agreement is not passed in favour of the plaintiff and against the defendants, then a decree for a sum of rupees ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 3 40 lakhs or such further amount as this Hon'ble Court may determine may also be passed on account of refund of earnest money and damages alongwith interest at the rate of 24% per annum from the date of payment till its .
realization;"
3. The suit was resisted by the defendants by filing written statement and following issues came to be settled:
"1. Whether late Shri N.N. Nowrojee validly executed the of agreement of sale dated 17.7.2000 on his own behalf and on behalf of defendants No. 1 and 4 as alleged? OPP.
2. Whether the plaintiff paid an amount of Rs.10 lakhs to rt late Shri N.N. Nowrojee as part payment of sale consideration as alleged? OPP
3. Whether the plaintiff has always been ready and willing to perform his part of the agreement as alleged? OPP
4. Whether the plaintiff is entitled to a decree for specific performance of the alleged agreement dated 17.7.2000? OPP
5. In case issue No. 4 is decided in the negative, whether the plaintiff is entitled to the alternative relief for the recovery of Rs.40,00,000/- alongwith interest as claimed? OPP
6. Whether the suit in the present form is not maintainable as alleged? OPD
7. Whether the plaintiff is estopped from filing the present suit on account of his own acts, deeds and conduct as alleged? OPD
8. Relief."::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 4
4. Parties led their evidence and after scanning the pleadings and the evidence, the learned Single Judge came to the conclusion that the plaintiff had failed to prove the execution .
of agreement to sell Ext.PW-4/A. Accordingly, issue No.1 came to be decided against the plaintiff/appellant and in favour of the defendants. Issues No.2, 4 and 5 were also decided against the plaintiff, while issues No.3, 6 and 7 were decided in favour of the of plaintiff and against the defendants.
5. The defendants have not questioned the impugned rt judgment on any ground. Feeling aggrieved, the plaintiff has filed the instant appeal against the impugned judgment.
6. We have heard the learned counsel for the parties and have gone through the record.
7. The genesis of the dispute between the parties is the agreement to sell, Ext.PW-4/A, dated 17th July, 2000, (hereinafter referred to as the agreement), purportedly and allegedly executed between N.N. Nowrojee, predecessor-in-interest of the defendants, and Rajesh Kumar Sood, plaintiff. The learned Single Judge dismissed the suit while holding that the plaintiff has failed to prove the execution of the agreement.
8. Therefore, the issues emerge for consideration in the instant appeal are -
::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 5i) Whether the agreement Ext.PW-4/A was executed in between the parties?
ii) Whether the agreement Ext.PW-4/A is valid and enforceable?
.
iii) Whether the learned Single Judge has rightly appreciated the agreement Ext.PW-4/A, facts, pleadings and the evidence led by the parties?
iv) Whether the plaintiff is entitled to the relief of specific performance of agreement?
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9. Section 96 of the Code of Civil Procedure (for short, CPC) mandates as to who is competent to file an appeal and rt also contains the mechanism how an appeal is to be filed.
Section 107 of the CPC provides that the Appellate Court has the same powers as the court of original jurisdiction, with some fetters contained in Order 41 of the CPC. It is apt to reproduce Section 107 of the CPC hereunder:
"107. Powers of appellate court (1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power--
(a) to determine a case finally,
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 6
(2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on courts of original jurisdiction in respect of suits instituted .
therein.
10. Thus, from the perusal of the above provision of law, it is clear that the first appeal is continuation of the suit and is to be decided on merits after discussing pleadings, facts and the of evidence led by the parties. While hearing the first appeal, the Appellate Court is within its powers and competence to uphold rt the judgment, set aside or reverse it, or remand the case. The Appellate Court has to discuss the case from all angles, like the court of original jurisdiction.
11. The Apex Court in Ishwar Dutt vs. Land Acquisition Collector and another, 2005 AIR SCW 3578, held that the High Court has wide power in terms of Section 107 of the CPC.
However, it has also been observed that the High Court, while exercising power in terms of Section 107 of the CPC, cannot travel beyond pleadings. It is apt to reproduce paragraph 34 of the said judgment hereunder:
"34. The High Court, in our opinion, although has a wide power in terms of Section 107 of the Code of Civil Procedure but it could not have gone outside the pleadings and make out a new case."::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 7
12. The Apex Court in Shiv Kumar Sharma vs. Santosh Kumari, 2007 AIR SCW 6384, while interpreting the scope of the jurisdiction of the High Court in appellate proceedings under .
Section 96 of the CPC, held that the High Court must act within the four corners of statute. It is apt to reproduce paragraph 18 of the said judgment as under:
"18. Scope and ambit of jurisdiction of the High Court in of determining an issue in an appeal filed in terms of Section 96 of the Code of Civil Procedure (which would be in continuation of the original suit) and exercising the power rt of judicial review under Articles 226 and 227 of the Constitution of India would be different. While in the former, the court, subject to the procedural flexibility has laid down under the statute is bound to act within the four corners thereof, in adjudicating a lis in exercise of its power of judicial review, the High Court exercises a wider jurisdiction. No doubt, the court in an appropriate case, even in a civil suit may mould a relief but its jurisdiction in this behalf would be confined to Order VII, Rule 7 of the Code of Civil Procedure. [See Bay Berry Apartments Pvt. Ltd. and Anr. v.
Shobha and Ors. 2006 (10) SCALE 596 and U.P. State Brassware Corpn. Ltd. and Anr. v. Udai Narain Pandey (2006) 1 SCC 479]"
13. The Apex Court in its latest decision in Union of India vs. K.V. Lakshman and others, AIR 2016 SC 3139 held that the ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 8 jurisdiction of the Appellate Court, while hearing an appeal under Section 96 of the CPC, is very wide like a trial Court and the Appellate Court in coming to the conclusion, is duty bound to .
appreciate the entire evidence. It is apt to reproduce paragraphs 22 to 32 of the said decision hereunder:
"22. It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the of first appellate Court while hearing the first appeal is very wide like that of the Trial Court and it is open to the appellant to attack all findings of fact or/and of law in first rt appeal. It is the duty of the first appellate Court to appreciate the entire evidence and may come to a conclusion different from that of the Trial Court.
23. Similarly, the powers of the first appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. It is apposite to take note of the law on this issue.
24. As far back in 1969, the learned Judge - V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of the CPC in Kurian Chacko vs. Varkey Ouseph, 1969 AIR(Ker) 316, reminded the first appellate Court of its duty to decide the first appeal. In his distinctive style of writing with subtle power of expression, the learned judge held as under:
"1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 9 was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned .
Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.
2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has of fallen far short of what is expected of him as an appellate Court. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this rt observation .."
(Emphasis supplied)
25. This Court also in various cases reiterated the aforesaid principle and laid down the powers of the appellate Court under Section 96 of the Code while deciding the first appeal.
26. We consider it apposite to refer to some of the decisions.
27. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs., (2001) 3 SCC 179, this Court held (at pages 188-189) as under:
". ..the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 10 with the contentions put forth, and pressed by the parties for decision of the appellate court while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the .
court hearing a further appeal that the first appellate court had discharged the duty expected of it ........."
28. The above view was followed by a three-Judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors., (2001) 4 SCC 756 : (AIR 2001 SC 2171), wherein it was of reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
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29. In H.K.N. Swami v. Irshad Basith, 2005 10 SCC 243, this Court (at p. 244) stated as under: (SCC para 3) "3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."
30. Again in Jagannath v. Arulappa & Anr., 2005 12 SCC 303, while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court (at pp. 303-04) observed as follows: (SCC para 2) "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion ..."
31. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 : (2010 AIR SCW 6184), this Court taking ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 11 note of all the earlier judgments of this court reiterated the aforementioned principle with these words:
"3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals .
with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
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4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing rt both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 : (AIR 2001 SC 965, Pp.968 and 969 Para 15) at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 : (AIR 2001 SC 2171, Pp. 2171 and 2172, Para 5) at p. 758, para 5.)
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 12 manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court .
and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
32. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174 : (AIR 2011 SC 2906)."
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14. The question is whether the learned Single Judge, being the court of original jurisdiction, has determined the suit rt rightly in terms of the impugned judgment. The answer is in the affirmative for the reasons to be assigned hereinafter.
15. As we have observed supra, the controversy in the instant lis revolves around the agreement and in order to set the controversy at rest, at the first place, it has to be seen - whether the agreement was ever executed between the parties and whether it is a valid one.
16. Before answering the controversy, we may observe that reasoning is the heart, soul and an essential foundation of a judicial verdict. It is the bed rock of judicial disposal. In order to determine a civil suit, scanning of pleadings, evidence, other material, marshalling facts and reasons are sine qua non. Thus, to ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 13 answer the above questions, we have to enter upon the facts, pleadings and the evidence led by the parties.
17. At the very outset, we may refer to Section 20 of the .
Specific Relief Act, 1963, (for short, the Act), which reads as under:
"20. Discretion as to decreeing specific performance.--
(1). The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the of court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:--
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(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.-- The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 14 acts or suffered losses in consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party."
.
18. From a bare perusal of the above Section of the Act, it is crystal clear that the jurisdiction vested in the Courts under the Act is discretionary and the relief of specific performance is to be granted while keeping in view the equity and other ingredients of which are sine qua non for granting the said relief.
19. The agreement in question was annexed by the plaintiff with the plaint, and during the admission and denial of rt the documents, the defendants have denied the execution of the agreement.
20. In order to prove the execution of the agreement, the plaintiff stepped into the witness box as PW-4 and also examined the alleged marginal witnesses i.e. PW-5 Prit Nath and PW-6 Chander Mohan Kashmiri.
21. The agreement Ext.PW-4/A runs into two pages executed on two non judicial papers of the denomination of Rs.5/- each. At first page of the agreement, particulars of the parties, description of the properties and the consideration amount i.e. Rs.40.00 lacs has been mentioned. Thereafter, on the second page, it contains conditions No.1 to 5. After condition ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 15 No.5 on the second page, the agreement seems to have been concluded with the following lines:
"Both the above parties set their hands on this agreement .
deed on this 17th day of July, 2000 at Dharamshala in the presence of the marginal witnesses."
22. The agreement appears to have been allegedly signed by the parties in presence of marginal witnesses, namely, of Chander Mohan Kashmiri and Prit Nath on the second page.
However, before the signatures of marginal witnesses and the parties to the agreement, there is a note on the second page rt itself to the following effect:
"Note: - This agreement shall be read with condition Nos.6, 7, 8 & 9 and a note on overleaf."
23. After recording conditions No.6 and 7, the parties have allegedly signed the agreement. Here it is pertinent to note that the marginal witnesses have not appended their signatures after conditions No.6 and 7. The agreement did not conclude here and conditions No.8 and 9 were added and at the end, there are alleged signatures of the parties as also of the marginal witnesses. On the overleaf of page 2, there is a note which appears to have been allegedly signed by the first party and second party and also by the marginal witnesses.
::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 1624. The Court, while dealing with a suit for specific performance of agreement, has to ascertain the intention of the parties and also to see the construction of the agreement and .
the agreement has to be read and discussed as a whole, in order to reach at a just conclusion.
25. The Calcutta High Court in Gobinda Chandra Chakravarti vs. Nanda Kumar Das and another, A.I.R. 1915 of Calcutta 298, has held that in judging the fairness of a contract, the Court has to look not merely at the terms of the contract itself, rt but at all the surrounding circumstances. It was also observed that in case there is any circumstance about the making of the contract, which renders it not fair and honest, the court can refuse the performance of the said contract. It is apt to reproduce the relevant paragraph of the said decision hereunder:
"It seems to me however that there may be cases which cannot be brought within the four corners of any of the provisions of the Contract Act as to the invalidity or voidability of agreements, but are nevertheless cases in which a Court of equity may properly refuse to exercise its jurisdiction under the Specific Relief Act. S. 22 of the latter enactment itself shows that this is so and both principle and authority appear to point to the same conclusion. There are
- see Fry on Specific Performance, Edn. 5, p. 195 - "many ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 17 instances in which, though there is nothing that actually amounts to fraud there is nevertheless a want of equality and fairness in the contract which are essential in order that the Court may exercise its extraordinary jurisdiction in .
specific performance." In judging of the fairness of a contract, (see-ibid) p. 200) "The Court will look not merely at the terms of the contract itself, but at all the surrounding circumstances;" and "it is enough, generally speaking, to induce the Court to refuse performance, that there are any of circumstances about the making of the contract which render it not fair and honest to call for its execution.""
26. The Lahore High Court in Skinner, R.H. vs. Veronica rt Skinner, A.I.R. 1930 Lahore 1004, has held that "the construction of a document is a mixed question of law and fact. Pleadings cannot avail for the purpose. The construction of a document is to be determined by grammar and logic, the primary organs of interpretation, aided by accompanying circumstances which throw light on the meaning and intention of the parties concerned.
27. The Apex Court in Oil and Natural Gas Corporation Ltd. vs. SAW Pipes Ltd., AIR 2003 SC 2629, has held that in construing a contract, the Court must look at the words used in the contract in order to gather the intention of the parties. It is ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 18 profitable to reproduce paragraph 40 of the said decision hereunder:
"40. It cannot be disputed that for construction of the .
contract, it is settled law that the intention of the parties is to be gathered from the words used in the agreement. If words are unambiguous and are used after full understanding of their meaning by experts, it would be difficult to gather their intention different from the language used in the agreement. If upon a reading of the document of as a whole, it can fairly be deduced from the words actually used therein that the parties had agreed on a particular term, there is nothing in law which prevents them rt from setting up that term. Re: Modi and Co. v. Union of India, (1968) 2 SCR 5[65] Further in construing a contract, the Court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the Court can do about it. Re: Provash Chandra Dalui and another v. Biswanath Banerjee and another, 1989 Supp (1) SCC 487."
28. The Apex Court in C. Cheriathan vs. P. Narayanan Embranthiri, 2009 AIR SCW 996, held that when a document has been questioned, the intention of the parties must be gathered by reading the document in its entirety. It is apt to reproduce paragraph 9 of the said judgment hereunder:
::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 19"9. A document, as is well known, must be read in its entirety. When character of a document is in question, although the heading thereof would not be conclusive, it plays a significant role. Intention of the parties must be .
gathered from the document itself but therefor circumstances attending thereto would also be relevant; particularly when the relationship between the parties is in question. For the said purpose, it is essential that all parts of the deed should be read in their entirety. [See P.S. of Ramakrishna Reddy v. M.K. Bhagyalakshmi and Anr. [(2007) 10 SCC 231]."
29. At the first glance of the agreement Ext.PW-4/A, it rt appears to be doubtful and shrouded in suspicion. As discussed hereinabove, after the agreement was signed by the marginal witnesses and also by the parties on the second page, a note was appended to the effect that conditions No.6 to 9 would be read with conditions No.1 to 5 on page 2. The said note suggests that conditions No.6 to 9 and note on the 2nd page overleaf were required to be incorporated in one go. However, it is not forthcoming from the record and no explanation has been given by the plaintiff as to what was the necessity for recording conditions No.6 and 7 at the first instance and thereafter put signatures after these conditions. It is also important to note that after conditions No.6 and 7, the marginal witnesses have not ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 20 appended their signatures. Recording of conditions No.8 and 9 afterwards means that all these conditions were afterthought and appear to have been recorded after due deliberations.
.
30. In case the said conditions and notes were to be added in the agreement Ext.PW-4/A, the parties ought to have recorded that some conditions were left and the same, being imperative, were required to be incorporated, which has not of been done. Therefore, the first glance of the agreement itself makes it crystal clear that the entire exercise is doubtful and even rt execution of the agreement appears to be a managed show.
31. The learned Single Judge has discussed the statements of the plaintiff and the marginal witnesses in paragraphs 9 to 12 of the impugned judgment and has rightly came to the conclusion that the statements are contradictory.
The learned Single Judge has also discussed in paragraphs 9 and 10 of the impugned judgment how the agreement appears to be doubtful and shrouded in suspicion. It is apt to reproduce paragraphs 9 and 10 of the said judgment hereunder:
"9. No doubt PW-4 Rajesh Kumar (plaintiff) and the two purported attesting witnesses of the document, namely PW-5 Prit Nath and PW-6 Chander Mohan Kashmiri, have testified that the document was typed on the basis of a draft, which late Shri N.N. Nowrojee produced from his ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 21 pocket and that after it was typed by the plaintiff in the office of PW-6 Chander Mohan Kashmiri, late Shri Nowrojee and the plaintiff executed the document as prospective vendor and vendee, respectively, and thereafter the .
document was attested by PW-5 Prit Nath and PW-6 Chander Mohan Kashmiri, but there are some inconsistencies in the testimony of these three witnesses and several other facts & circumstances, which render the execution of the document highly suspicious.
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10. The plaintiff claims to have paid Rupees ten lacs in cash to late Shri N.N. Nowrojee at the time of the execution of the document. He has tried to show that he had ready rt cash of more than Rupees ten lacs with him on the relevant date as reflected in his account books. He produced the account books while in the witness box as PW-4 and tendered the Photostat copies of the relevant entries. The same are Ext. PW-4/B, copy of entries in cash book and Ext.
PW-4/C, copy of entries in the ledger. The plaintiff did not explain why the copies of the entries in the aforesaid two account books had not been submitted along-with the plaint. He did not submit these copies even before the framing of the issues. The issues were framed on 10.12.2001. These copies, along-with some other documents, were submitted on 22.12.2001 through a list. No explanation what-so-ever has been offered for not producing these copies with the plaint or at-least before the framing of the issues, even though the account books were in his custody, when the suit was filed. Thus, there are chances of these ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 22 entries in the account books of the plaintiff, being not genuine."
32. Two non-judicial papers used for executing the .
agreement in question, each of Rs.5/- denomination, were purchased at Palampur on 13th July, 2000, as has come up in the statement of the plaintiff himself who appeared in the witness box as PW-4. The agreement was alleged to have been executed at of Dharamshala on 17th July, 2000. There is no explanation why the non-judicial papers were purchased at Palampur and not at Dharamshala.
rt There is also no explanation to the fact that in case the non-judicial papers were purchased on 13th July, 2000 for the execution of the agreement, then why the agreement could not be reduced into writing for four days.
33. The learned Single Judge has dilated upon the fact of purchase of the non judicial papers at Palampur in paragraph 11 of the impugned judgment and observed thus:
"11. Non-judicial papers, numbering two and worth Rs.5/- each, upon which the agreement Ext. PW-4/A is type written, were purchased by the plaintiff himself and that too not at Dharamshala, where the agreement was executed and where late Shri Nowrojee resided and the property is situate, but at Palampur, as testified by the plaintiff himself while appearing as PW-4. The explanation given by the plaintiff in his testimony as PW-4 is that late Shri ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 23 Nowrojee himself had told him to buy the papers from some other station as non-judicial and judicial papers were not available at Dharamshala during those days. The explanation on the face of it appears to be an after-
.
thought. The defendants in preliminary objection No. 6 of their written statement specifically stated that the stamp papers on which the agreement is type written, do not appear to have been purchased at Dharamshala and that it also appears that the two papers had not been bought of together. The plaintiff while replying to this averment in the replication, stated that the stamp papers were purchased by him at Palampur simultaneously. He, however, offered rt no explanation for purchasing the stamp papers at Palampur instead of at Dharamshala, where late Shri Nowrojee resided and where the property is situated and the agreement was executed. Therefore, the explanation, which he has offered for the first time in his testimony, cannot be believed unless corroborated. And corroboration is not there."
34. Another important aspect is that law mandates that a document is to be recorded by a person who is competent to record it. The plaintiff while appearing as PW-4 has deposed that he had prepared and drafted the agreement. Question arises as to whether he was competent to do so. The answer is in the negative for the reason that he was neither eligible nor competent to draft such a document. Either it is the scribe or an ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 24 Advocate, who is competent and eligible to draft document like agreement Ext.PW-4/A.
35. The plaintiff has admitted that he had reduced the .
terms and conditions of the document into writing, thus, the possibility of interposing conditions No.6 to 9 (overleaf page 1) and a note (overleaf page 2), being afterthought, also cannot be ruled out.
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36. Another aspect of the case is that the plaintiff, for the reasons best known to him, has not examined the stamp vendor rt from whom two non-judicial papers were purchased on 13th July, 2000. The stamp vendor would have been the best witness to depose as to who had purchased the said papers. Thus, adverse inference has to be drawn against the plaintiff.
37. The plaintiff has tried to offer explanation that he had purchased the non judicial papers from Palampur on the request of N.N. Nowrojee. One non judicial paper was purchased in the name of N.N. Nowrojee, predecessor-in-interest of the defendants, and the other was purchased in his own name by the plaintiff. It is admitted case of the plaintiff that at the time of purchase of the non judicial papers at Palampur, N.N. Nowrojee was not with him. Then, there is no explanation how signatures of N.N. Nowrojee appear below the endorsement qua sale of these ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 25 papers. It is also not forthcoming how the plaintiff purchased the non judicial papers in the name of N.N. Nowrojee and had signed on behalf of N.N. Nowrojee while purchasing the non judicial .
papers from Palampur, is suggestive of the fact that the plaintiff has managed the execution of the alleged agreement to sell Ext.PW-4/A.
38. The agreement Ext.PW-4/A had seen light of the day of after the death of N.N. Nowrojee. The defendants have specifically pleaded and proved that they were not aware of the rt execution of the agreement Ext.PW-4/A until they received a legal notice from the plaintiff. The defendants have also pleaded and proved that in case late N.N. Nowrojee had executed the agreement and received Rs.10.00 lacs, he would have told them about the same. The plaintiff has not offered any explanation as to from where he got the amount of Rs.10.00 lacs, which was allegedly paid to late N.N. Nowrojee as earnest money, in order to show that transaction, if any, took place between the plaintiff and the predecessor-in-interest of the defendants.
39. Another angle is that when any agreement is executed and payment is made, receipt is also executed. No such receipt is placed on the record or appended with the agreement by the plaintiff. The learned Single Judge has ::: Downloaded on - 15/04/2017 20:57:45 :::HCHP 26 discussed all these aspects in paragraphs 15 to 20 of the impugned judgment and the conclusions drawn by the learned Single Judge are legally sound and correct and borne out from .
the records.
40. It is recorded in the alleged agreement that N.N. Nowrojee was co-owner of the property comprising in Khata No.123, Khatauni No.269, Khasra Nos.463 to 472 and 474, of (detailed in paragraph "A" of the agreement). In case late N.N. Nowrojee was co-owner of the land, then it is not clear whether rt the plaintiff was put in joint possession or had taken exclusive possession of some portion of the said properties.
41. The description of the property at paragraph "B" of the agreement has been given as under:
"B. Whereas the 1st party, alongwtih other co-onwers/co- sharers, is also in possession of the adjoining Khasra Nos.475, 476 & 477 & 251 (total 4) total measuring 0-23-71 Hectares of Khata No.180 Min. Khatoni No.355 of the same Up-Mohal McLeodganj as per the Jamabandi for the year 1992-93 and with the passage of time have now become owners of the same under laws."
Emphasis applied.
42. In paragraph "B" of the agreement, it has been recorded that N.N. Nowrojee was in possession of property comprised in Khasra Nos.475, 476, 477 and 251, alongwith other ::: Downloaded on - 15/04/2017 20:57:46 :::HCHP 27 co-sharers. However, as per the jamabandi placed on record for the year 1992-93, the nature of the land comprised in Khasra Nos.251, 475, 476 and 477 is shown to be Shamlat, under the .
column "Name of owner with description" it has been written as "Shamlat up-mahal" and under the remarks column a note has been given to the effect that "Govt. is the owner of Khurdo-
Darkhtan comprised in khasra No.251 of the instant khatauni."
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43. The words employed in describing the property in paragraph "B" of the agreement, as reproduced above, are rt suggestive of the fact that the parties had knowledge that late N.N. Nowrojee did not have perfect title till the execution of the so called agreement Ext.PW-4/A. The copy of jamabandi for the year 1992-93 does disclose that late N.N. Nowrojee was not recorded as owner of the property mentioned at point "B" in the agreement, referred to above. When N.N. Nowrojee was not recorded as owner, how he was competent to effect the agreement to sell as owner of the land of which he was not owner. Viewed thus, the agreement being invalid is not enforceable.
44. Another fact which has also to be noticed is that in terms of Section 17 of the Registration Act, 1908 read with the mandate of the Transfer of Property Act, it was mandatory to get ::: Downloaded on - 15/04/2017 20:57:46 :::HCHP 28 the agreement registered in view of the fact that it was recorded in the agreement that late N.N. Nowrojee, with the passage of time, had acquired title over the property, which has not been .
done rendering the agreement to be invalid and unenforceable.
45. It is also not out of place to mention here that if the plaintiff was put in possession of vacant land, when he was dispossessed is not pleaded and proved by the plaintiff. The of plaintiff has pleaded that he was put in possession of the vacant land, but while seeking relief, has sought possession of the entire rt land (subject matter of the agreement), is suggestive of fact that he blows hot and cold. While scanning the evidence and the pleadings, one comes to inescapable conclusion that the plaintiff had never taken possession of the property and on this count alone, the suit was to be dismissed. Therefore, the learned Single Judge has rightly recorded the findings.
46. It is beaten law of the land that an agreement to sell has to be interpreted having regard to the circumstances attending thereto and in case the agreement to sell is uncertain, it cannot be given effect to.
47. The Apex Court in Tejram v. Patirambhau, AIR 1997 Supreme Court 2702, in paragraph 4, has been held that when ::: Downloaded on - 15/04/2017 20:57:46 :::HCHP 29 the conduct of the parties appears to be doubtful, relief for specific performance of agreement cannot be granted.
48. The Apex Court in Vimlesh Kumari Kulshrestha vs. .
Sambhajirao and another, (2008) 5 SCC 58, held that an agreement is to be read as a whole, if it is uncertain it becomes unenforceable. It is apt to reproduce paragraph 21 of the said decision hereunder:
of "21. It is in the aforementioned context, the meaning of the words used in the agreement must be determined. It refers to the property where the appellant was living and not any rt other property. If the appellant was living in a part of the property, only the same was the subject matter of sale and not the entire premises."
49. In the instant case, as discussed hereinabove, it has been recorded in the alleged agreement that late N.N. Nowrojee was the co-owner in the property. What was his share, what were the boundaries and of what portion the possession was given to the plaintiff is not proved.
50. It is also apt to reproduce paragraphs 24 and 25 of Vimlesh Kumari Kulshrestha's case (supra), hereunder:
"24. Reference to the said legal maxim is, in our opinion, is not apposite in the facts and circumstances of this case. By reference to the boundaries of the premises alone, the description of the properties agreed to be sold did not ::: Downloaded on - 15/04/2017 20:57:46 :::HCHP 30 become certain. For the purpose of finding out the correct description of the property, the entire agreement was required to be read as a whole. So read, the agreement becomes uncertain.
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25. An agreement of sale must be construed having regard to the circumstances attending thereto. The relationship between the parties was that of the landlord and tenant.
Appellant was only a tenant in respect of a part of the premises. It may be that the boundaries of the house have of been described but a plan was to be a part thereof. We have indicated hereinbefore that the parties intended to annex a plan with the agreement only because the rt description of the properties was inadequate. It is with a view to make the description of the subject matter of sale definite, the plan was to be attached. The plan was not even prepared. It has not been found that the sketch of map annexed to the plaint conformed to the plan which was to be made a part of the agreement for sale. The agreement for sale, therefore, being uncertain could not be given effect to."
51. It is well settled law that a party who seeks to avail the relief of specific performance, being an equitable relief, must knock the door of the Court with clean hands and in case the party does not come to the Court with clean hands, is not entitled to the equitable relief.
52. Our this view is fortified by the decision of the Apex Court in Lourdu Mari David and others vs. Louis Chinnaya ::: Downloaded on - 15/04/2017 20:57:46 :::HCHP 31 Arogiaswamy and others, AIR 1996 SC 2814. It is apt to reproduce relevant portion of paragraphs 1 and 2 of the said decision hereunder:
.
"1...........In the impugned judgment, the Division Bench rejected the claim on the additional ground that the plaintiff did not come to the Court with clean hands. Therefore, he is disentitled to relief of the specific performance. Under Section 20 of the of Specific Relief Act, 1963. (for short, 'the Act') the decree for specific performance is in the discretion of the Court but the discretion should not be refused rt arbitrarily. The discretion should be exercised on sound principles of law capable of correction by an appellate Court.
2. It is settled law that the party who seeks to avail of the equitable jurisdiction of a Court and specific performance being equitable relief, must come to the Court with clean hands. In other words the party who makes false allegations does not came with clean hands and is not entitled to the equitable relief.
The division Bench has pointed out in the judgment three grounds which disentitle the plaintiff to the equitable relief as he came with a positive case of incorrect and false facts as set out in paragraphs 4 to 6 thus ..............."
53. It is also settled proposition of law that grant of specific contract is not automatic and is one of the discretion of ::: Downloaded on - 15/04/2017 20:57:46 :::HCHP 32 the court and while making consideration, court has to consider whether it is fare, just and equitable and is governed by the principle of justice, equity and good conscious.
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54. The Apex Court in Gobind Ram vs. Gian Chand, AIR 2000 SC 3106, held that decree for specific performance of contract is not automatic and is one of the discretion of the Court. It was also observed that the Court is guided by the of principle of justice, equity and good conscience.
55. The Apex Court in Parakunnan Veetill Joseph's Son rt Mathew vs. Nedumbara Kuruvila's Son and others, AIR 1987 SC 2328, held that court is bound to ascertain the motive behind the litigation and has to take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. It is apt to reproduce paragraph 14 of the said judgment hereunder:
"14. Section 20 of the Specific Relief Act. 1903 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. The High Court ::: Downloaded on - 15/04/2017 20:57:46 :::HCHP 33 has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the .
agreement for sale Ex.A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance."
56. The Apex Court has taken similar view in Bal Krishna & of Anr. vs. Bhagwan Das (Dead) by L.Rs.& Ors., 2008 AIR SCW 2467. It is apt to reproduce the relevant portion of paragraph 8 of the rt said judgment hereunder:
"8................ It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some ::: Downloaded on - 15/04/2017 20:57:46 :::HCHP 34 hardship on the defendant, which he did not foresee. In other words, the court's discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void."
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57. The Apex Court in K. Prakash vs. B.R. Sampath Kumar, 2014 AIR SCW 5795, held that granting of decree for specific performance is a discretionary relief and not arbitrary. Discretion is to be made with due care and caution not on extraneous or of sympathetic considerations. Further held that the Appellate Court should not interfere with the discretion applied by the court rt of original jurisdiction, unless it is shown that the discretion has been exercised wrongly or arbitrarily. It is apt to reproduce paragraphs 15 and 17 of the said judgment hereunder:
"15. Indisputably, remedy for specific performance is an equitable remedy. The Court while granting relief for specific performance exercise discretionary jurisdiction.
Section 20 of the Act specifically provides that the court's jurisdiction to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with the sound and reasonable judicial principles.
Xxxxxxxxxx xxxxxxxxx xxxxxxxxxxx
17. The principles which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists a condition precedent to the grant of decree for specific performance that the ::: Downloaded on - 15/04/2017 20:57:46 :::HCHP 35 plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one .
way or other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion of against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Section 20 of the Specific Relief Act, rt that a party is not entitled to get a decree for specific performance merely because it is lawful to do so.
Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree is established then the Court has to exercise its discretion in favour of granting relief for specific performance."
58. The Apex Court in Zarina Siddiqui vs. A. Ramalingam alias R. Amarnathan, (2015) 1 SCC 705, has held that the remedy for specific performance is an equitable remedy. The court while granting decree of specific performance exercises its discretionary jurisdiction. It has also been held that application of equitable discretion depends upon the conduct of the parties and that the discretion must be exercised in accordance with sound and reasonable judicial principles.
::: Downloaded on - 15/04/2017 20:57:46 :::HCHP 3659. From the above decisions of the Apex Court, it is clear that the relief for specific performance of agreement is a discretionary relief and depends upon the facts and .
circumstances of a particular case.
60. It is also settled principle of law that the discretion exercised by the Court is not to be dislodged unless the discretion so exercised appears to have been exercised arbitrarily against of the judicial principles. The Andhra Pradesh High Court in Matadin Agarwal and etc., vs. Syed Abdul Razack and others, AIR 1997 rt A.P. 103, has taken the similar view. It is apt to reproduce the relevant portion of paragraph 23 of the said decision hereunder:
"23. .............Therefore, it is clear that the illustrations given under sub-sections (2) and (3) of Section 22 is which the Court could refuse specific performance are not exhaustive and there may be umpteen number of cases in which Court may deny such relief to the plaintiff. Specific performance is by no means an absolute right, but one which rests entirely in judicial discretion depending on the facts and circumstances of a particular case. When once the discretion has been exercised in a particular way by the trial Court, it is not open to the appellate Court to interfere lightly unless it is shown that the discretion has been exercised arbitrarily or against judicial principles.................."::: Downloaded on - 15/04/2017 20:57:46 :::HCHP 37
61. Applying the tests to the instant case, the agreement appears to be managed one. It also appears that the incorporation of the conditions and the notes, as discussed .
above, are afterthought. The learned Single Judge, while exercising the discretion, has taken due care and caution and has made the foundation of the impugned judgment rightly, is factually and legally correct.
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62. Having said so, we are of the considered view that the learned Single Judge has rightly made the discussion and the rt conclusions. Accordingly, the impugned judgment and decree are upheld and the appeal is dismissed with costs, quantified at Rs.20,000/-. The Registry is directed to prepare the decree sheet.
(Mansoor Ahmad Mir) Chief Justice.
August 04, 2016 (Sandeep Sharma)
(Tilak) Judge
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