Karnataka High Court
Shri.Mahabaleshwarl Gurunath Hegde vs Shri.Gurunath Timmappa Hegde on 24 January, 2022
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.100134 OF 2019
BETWEEN:
SHRI.MAHABALESHWARA GURUNATH HEGDE
AGE: 76 YEARS, OCC: AGRICULTURE
HULEMALAGI-581301, TALUKA: SIRSI,
NOW RESIDING AT KEREKOPPA,
POST: KORLAKATTA-581318
TALUKA: SIRSI, DIST: UTTARA KANNADA
REPRESENTED BY HIS PA HOLDER
SHRI.RAVI MAHABALESHWAR HEGDE
AGE: 50 YEARS, OCC: AGRICULTURE
R/O KEREKOPPA PO: KORLAKATTA-581318
TALUKA: SIRSI, DIST: UTTARA KANNADA
...APPELLANT
(BY SRI. M. R. SHINDE, SRI. AKSHAY KATTI AND SRI. ABHISHEK
PATIL, ADVOCATES)
AND:
SHRI. GURUNATH TIMMAPPA HEGDE
AGE: 65 YEARS, OCC: AGRICULTURE
R/O: KEREKOPPA POST: KORLAKATTA-581318
TALUKA: SIRSI, DIST: UTTARA KANNADA.
...RESPONDENT
(BY SRI. A. P. HEGDE JANMANE, SRI. VIJAY M MALALI,
ADVOCATES)
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THIS RSA IS FILED UNDER SECTION 100 R/W O XLII RULE 1
CPC, 1908 PRAYING TO SET ASIDE THE JUDGMENT & DECREE
DATED 29.11.2018 PASSED BY THE 1ST ADDITIONAL DISTRICT &
SESSIONS JUDGE UK KARWAR SITTING AT SIRSI IN RA 26/2011
AND ETC.,
JUDGMENT
The captioned second appeal is filed by the defendant who has questioned the concurrent judgment and decree of the Courts below granting discretionary relief of specific performance in favour of respondent-plaintiff.
2. The parties are referred to as per their rank before the trial Court.
3. The facts leading to the case are as under:
The plaintiff-respondent filed a suit for specific performance of contract by specifically contending that the appellant-defendant executed an agreement to sell on 24.08.1998 for sale consideration of Rs.8,00,000/- and received a sum of Rs.6,00,000/- on the date of execution of agreement of sale. As per the said agreement, the defendant was required to execute the sale deed after 1.12.2001 and 3 hand over possession. The defendant having received a sum of Rs.6,00,000/- as an earnest money also issued a receipt on 26.8.1998 as per Ex.P5. The plaintiff further contended that there was a condition that the plaintiff shall pay a further sum of Rs.1,00,000/- to the defendant in the month of April 2000.
In terms of the said condition, the plaintiff paid a sum of Rs.1,50,000/- on 10.1.2000 and the appellant accordingly executed a receipt for having received Rs.1,50,000/- vide Ex.P6. The plaintiff further contended that balance sale consideration of Rs.50,000/- was required to be paid at the time of registration of the sale deed.
The plaintiff has further contended that defendant in terms of the conditions enumerated in the suit agreement vide Ex.P4 failed to perform his part of the contract and therefore, plaintiff was compelled to issue a legal notice on 10.1.2002 calling upon the defendant to perform his part of the contract. The defendant on 21.9.2002 gave a false and evasive reply and this compelled the plaintiff to file the present suit. 4
On receipt of summons, the defendant filed written statement and stoutly denied the entire averments made in the plaint. There is a total denial of the suit agreement as per Ex.P4 and also the consequent receipts. The defendant has specifically alleged that plaintiff with the assistance of his son and relatives has concocted and created the documents and as such sought for dismissal of the suit.
The plaintiff in support of his contention examined himself as P.W.1 and examined the attesting witnesses to the suit agreement as P.W.2 and relied on the documentary evidence as per Exs.P1 to 18. The defendant in support of his contention examined himself as D.W.1 and examined two independent witnesses as DWs.2 and 3. The defendant however did not adduce any documentary evidence.
The trial Court having assessed oral and documentary evidence answered issue Nos.1 to 3 in the affirmative by holding that plaintiff has succeeded in proving the suit agreement as per Ex.P4. The trial Court also held that plaintiff 5 has succeeded in proving that he has paid Rs.7,50,000/- towards the sale consideration as an advance and has proved that he was ready and willing to perform his part of the contract. The trial Court while answering issue Nos.1 to 3 in the affirmative has negatived the contentions raised by the defendant in the written statement and also during trial. The trial Court having meticulously examined the signatures of the defendant on various documents has come to the conclusion that plaintiff by leading cogent and clinching evidence coupled with ocular evidence of P.W.2 who is the contesting witness to the suit agreement has succeeded in proving the signature of the defendant on Exs.P4, 5 and 6. The trial Court has also taken judicial note of some slight variations in the signatures of the defendant. The slight variations in the signatures are examined by the trial Court in the context of the defence set up by the defendant wherein he has out rightly denied his signatures on the documents. On having meticulously examined the demeanor of defendant, the trial Court has 6 recorded a categorical finding that defendant has come before the Court just to deny his signatures and in the process of denying, the trial Court found that the defendant has put his signatures on each of the document in different styles. In spite of there being variance, the trial Court has come to the conclusion that the signatures found on Ex.P4 are that of defendant alone. The trial Court has further recorded a finding that Exs.P5 and 6 are in continuation of the agreement and therefore even if there are some variations, the trial Court was of the view that these variations are deliberate at the instance of the defendant and therefore, they are not fatal to the case of the plaintiff. The trial Court has also taken judicial note of the fact that the defendant has gone to the extent of denying his signatures on the vakalath and also in the written statement. On these set of reasonings, the trial Court while answering issue Nos.1 to 3 in the affirmative has held that the plaintiff has proved due execution of suit agreement as per Ex.P4 and payment of Rs.6,00,000/- at the time of execution 7 of the suit agreement and also proved consequent payment on 10.1.2000 as per the receipts executed vide Ex.P6. On these set of reasoning, the trial Court has proceeded to grant the discretionary relief of specific performance in favour of respondent.
On an appeal, the appellate Court having independently assessed the oral and documentary evidence and having perused the signatures on Exs.P5 and 6 has further proceeded to discard the opinion of the handwriting expert regarding the signatures of defendant on Exs.P5 and 6 which are receipts issued by the defendant for having received a sum of Rs.6,00,000/- and Rs.1,50,000/-. The appellate Court was of the view that even if left thumb impression found on Exs.5 and 6 are taken as not that of defendant, the said material fact still would not affect the case of the plaintiff as the signatures found on Exs.P5 and 6 are that of defendant. Therefore, the appellate Court was of the view that plaintiff has succeeded in 8 proving the due execution of suit agreement as per Ex.P4 and payment of amount vide receipts Exs.P5 and 6.
The appellate Court has also concurred with the finding arrived at by the trial Court while assessing the conduct of the defendant. The appellate Court on assessing the evidence on record has also come to the conclusion that the appellant has consciously gone on disputing the signatures with an intention to mislead the Court. Therefore, the appellate Court has also concurred with the finding of the trial Court that since the defendant has denied his own signatures on vakalath and written statement his defence has to be struck off. The appellate Court being final fact finding authority has independently assessed the clinching evidence on record and has concurred with the findings of the trial Court and has accordingly, proceeded to dismiss the appeal.
4. The learned counsel for the defendant would vehemently argue and contend that the claim of the plaintiff that he has paid Rs.6,00,000/- at the time of execution of suit 9 agreement cannot be believed. He would submit that if really plaintiff had paid a sum of Rs.6,00,000/- pursuant to the execution of the suit agreement vide Ex.P4, then there was no need to issue separate receipt as per Ex.P5 on 26.8.1998. He would further submit that of Rs.6,00,000/- was paid pursuant to execution of suit agreement on 24.8.1998, the receipt as per Ex.P5 ought to have been prepared on the same day and therefore, the receipt dated 26.8.1998 cannot be believed. He would submit that both the Courts have virtually misread Exs.P5 and 6 and consequently erred in recording finding that defendant has received a sum of Rs.7,50,000/- pursuant to execution of suit agreement vide Ex.P4.
The learned counsel appearing for defendant would vociferously attack the suit agreement vide Ex.P4. He would persuade this Court to examine the original copy of the suit agreement which is marked asEx.P4 and by taking this Court through the same, would strenuously argue and contend that there are material alterations in regard to the date of 10 execution of the suit agreement and this material alternation would clinch the issue. He would submit that if these material alterations are taken into consideration, then it can be seen that at two places, the date of execution of the suit agreement is overwritten and in place of 24.8.2000, it is altered as 24.8.1998. Relying on these material alterations he would submit to this Court that the defence set up by the defendant that he has not at all executed the suit agreement as alleged stand probabalized and therefore, the concurrent findings of the Courts below on Issue Nos.1 to 3 suffer from serious perversity and therefore, warrant interference at the hands of this Court. The learned counsel for the defendant would also take this Court to para 5 of the plaint and contend that the averments made at Para 5 would clearly falsify the case of the plaintiff. Even plaintiff has admitted at Para 5 of the plaint that there are slight variations in the signature of the defendant and therefore, in the absence of valid explanation during trial the entire case of the plaintiff stands falsified and 11 these significant details are not at all properly appreciated by the Courts below.
5. Per contra, the learned counsel for the plaintiff would submit that the defendant has totally denied the very execution of the suit agreement. When there is total denial, the defendant is estopped from contending that there are material alterations in the suit agreement as per Ex.P4. To counter the allegations in regard to material alterations, the learned counsel for plaintiff would take this Court to the suit agreement as per Ex.P4 and would submit that the date is clearly mentioned in the first line, first page of the suit agreement wherein it is clearly stated that the document is executed on 24.8.1998. Therefore, the allegation that there are material alterations in the second and third page would lose its relevance. If at all there was material alterations, the correct date of execution of the suit agreement ought to have been altered in the first page at first line of the suit agreement. However, the date is correctly mentioned at the 12 first page. The learned counsel for the plaintiff would submit that Ex.P7, which is the document dated 4.9.1998 would clinch the entire controversy between the parties. The defendant in his evidence has admitted his signature on the document as per Ex.P4. Though the signatures on Ex. P7 is denied, however, the counsel for the defendant while cross-examining the plaintiff has clearly suggested that his client's signatures on Ex.P7 were forcibly taken. Relying on this part of the suggestion in the cross-examination of the plaintiff, he would submit that defendant during trial has admitted the signature on Ex.P7.
Now coming to the signatures, the learned counsel for the plaintiff would submit that the intention of the defendant from the inception was tainted with malafides. He has deliberately changed his signatures. Though signatures on the vakalath and written statement are same, however, while signing the examination-in-chief, he has deliberately changed his signatures. Though signature on the vakalath and written 13 statement are same, however, while signing the examination- in-chief he has deliberately affixed bit long signatures. The allegation of the defendant that on every document, his signatures are found just beside "x" mark and therefore, inference has to be drawn that defendant had never signed when these documents were executed is countered by the plaintiff by taking this Court to admitted signatures of defendant on Exs.C2 and C3. Even in these documents, he would submit that the defendant has affixed signatures just behind 'x' mark and therefore would submit that 'x' mark found in the document where the defendant has affixed his signatures is not unnatural. On these set of defence, the learned counsel for the plaintiff submits that both the Courts have concurrently held that plaintiff has succeeded in proving due execution of the suit agreement and also payment of Rs.7,50,000/- and he has also proved his readiness and willingness. The finding of facts recorded by the Courts below is based on legal evidence adduced by plaintiff and therefore, 14 there is no scope for re-appreciation of question of facts under Section 100 of CPC and therefore, he requests this Court to dismiss the appeal by imposing exemplary cost.
6. Heard the learned counsel for the appellant- defendant and respondent-plaintiff.
7. The plaintiff's contention is that defendant offered to sell the suit property and accordingly, the plaintiff readily agreed and as such defendant has executed the suit agreement in favour of plaintiff on 24.8.1998 for sale consideration of Rs.8,00,000/- as per the agreement at Ex.P4 and under the said agreement, the defendant has received a sum of Rs.6,00,000/-. The defendant has executed separate receipts on 26.8.1998 vide Exs.P5 admitting payment of advance amount of Rs.6,00,000/-. The plaintiff has further contended that defendant has received a further sum of Rs.1,50,000/- on 10.1.2000 and has accordingly, executed a receipt vide Ex.P6. In the present case on hand, the 15 defendant has stoutly denied the very execution of the suit agreement. Therefore, the plaintiff to establish due execution of the suit agreement and consequent payments has relied on Ex.P7. As per Ex.P7, which is the acknowledgment issued by defendant, he has admitted that on 24.8.1998 he purchased stamp paper worth Rs.200 from one M.T. Hegde and on the said stamp paper, the present suit agreement came to be drafted and he admits that he has signed the said agreement. In the next paragraph, he has also stated that any variance in the signatures should not be viewed otherwise and in fact, those signatures are his signatures. The learned counsel for defendant while cross-examining the plaintiff has made a specific suggestion that the signatures on the document at Ex.P7 were secured by plaintiff forcibly. It is a trite law that when once the signatures on the documents are admitted then the burden is always on the party denying the contents to lead rebuttal evidence and falsify the contents of the documents on which the signatures are admitted. Having made such a 16 suggestion while cross-examining the plaintiff, the defendant has failed to produce any rebuttal evidence to disbelieve Ex.P7. If the document at Ex.P7 is examined by assessing the ocular evidence of P.W.2, this Court would find that P.W.2 who is the attesting witness to the suit agreement has withstood the rigour of cross-examination. Nothing substantial is elicited in his cross-examination to discredit his evidence given in support of plaintiff's case and on the conduct of the defendant wherein the defendant has gone to the extent of denying his signatures on the vakalath and the written statement. If this part of the evidence is taken into consideration while assessing its credibility, then this Court is of the view that his entire defence denying the execution of the suit agreement and consequent receipts vide Exs.P5 and 6 stands demolished. The slight variations in his signatures on various documents would clearly probabalize the case of the plaintiff to the effect that the defendant has consciously changed his signature only to dispute the transaction and consequent payments at the 17 later point of time. This view stands further strengthened, if the signature of the defendant on vakalath and written statement is compared with his signature on the ocular evidence i.e. the examination-in-chief. In his examination-in- chief, the defendant has deliberately affixed long signatures. His own admitted signature on the evidence let in examination-in-chief would in no way tally with the signatures found on the vakalath and written statement. This is a classic case of sheer abuse of process. The defendant is in receipt of substantial portion of the sale consideration i.e. Rs.7,50,000/- out of Rs.8,00,000/-. The plaintiff has produced voluminous documents and has produced receipts vide Exs.P5 and 6 to prove that defendant has received Rs.6,00,000/- under the suit agreement and consequent payment of Rs.1,50,000/- on 10.1.2000 in terms of receipt vide Ex.P6. This part of the claim made by plaintiff is corroborated by P.W.2 who is the attesting witness. His evidence does not indicate that he has any bias towards defendant or that he had any strong reasons 18 to depose against the defendant. Both the Courts have taken serious exception to the conduct of the defendant during trial. In fact, both the Courts have exhaustively dealt with all minute details by comparing the signatures on Ex.P6 and those signatures found at Q2 and Q4. Both the Courts have compared the signatures of the defendant on Ex.C2(A) and S2 and have come to the conclusion that these signatures are identical to the signatures found on Exs.P5 and 7 marked as Q1 and Q3. Both the Courts have concurrently held that defendant has deliberately gone on changing the signatures only to deny the claim of the plaintiff.
8. The suit agreement is of the year 1998. We are in 2022. The defendant has succeeded in keeping the litigation alive for almost 24 years having received substantial portion of the advance amount to the tune of Rs.7,50,000/- out of total sale consideration of Rs.8,00,000/-. Both the Courts have concurrently held that the plaintiff has established due execution of the agreement of sale and also payment of 19 Rs.7,50,000/- and his readiness and willingness to perform his part of the contract. The defendant has gone to the extent of denying his signature on the vakalath and the written statement. During trial, on the evidence let in, in the examination-in-chief, the defendant has affixed his signature which is bit long. This act of the defendant is found to be deliberate by both the Courts below. Therefore, I do not find any irregularity or illegality committed by both the Courts below. No substantial question of law arises in the present case.The appeal is devoid of merit and is liable to be dismissed.However, having regard to the conduct of the defendant, I am of the view that this is a fit case to impose exemplary cost.
9. For the foregoing reasons, I proceed to pass the following:
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ORDER The appeal is devoid of merit and is accordingly, dismissed with costs of Rs.10,000/-.
In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.
Sd/-
JUDGE *Alb/-