Madras High Court
M.M.Yusuf vs R.L.Jadhav(Deceased) on 25 July, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.07.2012 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH S.A.Nos.1910 and 1911 of 2004 M.M.Yusuf ... Appellant vs. 1.R.L.Jadhav(deceased) 2. Tmt. S.Durairajan 3.Manjula 4.Saveatha 5.Dr.Sathiya 6.Suresh ... Respondents (Respondents 3 to 6 are brought on record as legal heirs of the deceased 1st respondent vide order of Court dated 20.07.2007 made in C.M.P.Nos.3075 to 3077 of 2007). Appeal filed under Section 100 of C.P.C. against the judgment and decree of the lower appellate Court made in A.S.No.392 of 1987 dated 06.12.2001 reversing the judgment and decree made in O.S.No.5554 of 1981 dated 17.09.1986 on the file of XIV Assistant City Civil Court, Chennai. S.A.Nos.1911 of 2004 M.M.Yusuf ... Appellant vs. 1.Tmt.S.Durairajan 2.R.L.Jadhav(deceased) 3.Manjula 4.Saveatha 5.Dr.Sathiya 6.Suresh ... Respondents (Respondents 3 to 6 are brought on record as legal heirs of the deceased 2nd respondent vide order of Court dated 20.07.2007 made in C.M.P.Nos.3078 to 3080 of 2007). Appeal filed under Section 100 of C.P.C. against the judgment and decree of the I Additional City Civil Court, Chennai made in A.S.No.404 of 1987 dated 06.12.2001 reversing the judgment and decree made in O.S.No.5554 of 1981 dated 17.09.1986 on the file of XIV Assistant City Civil Court, Chennai. For Appellant : Mr.G.Rajagopalan, Sr.Counsel for Mr.C.P.Pattabiraman For 2nd Respondent : Mr.S.Thangaraj For Respondents 3 to 6 : Mr.S.K.Chandrakumar J U D G M E N T
S.A.No.1910 of 2004: This appeal is directed against the judgment and decree passed by the 1st appellate court in A.S.No.392 of 1987 dated 06.12.2001 in reversing the judgment and decree passed by the trial court made in O.S.No.5554 of 1981 dated 17.09.1986 in decreeing the suit.
2. S.A.No.1911 of 2004: This appeal is directed against the judgment and decree passed by the 1st appellate court in A.S.No.404 of 1987 dated 06.12.2001 in reversing the judgment and decree passed by the trial court made in O.S.No.5554 of 1981 dated 17.09.1986.
3. C.M.P.No.116 of 2012: This petition has been filed by the 1st respondent seeking permission to amend the written statement filed by the 2nd defendant by adding a prayer to pass a decree and judgment against the plaintiff directing him to vacate and hand over vacant possession of the property to the 2nd defendant as a counter claim.
4. The appellant in both the appeals was the plaintiff; the deceased 1st respondent was the 1st defendant, the 2nd respondent was the 2nd defendant; and the respondents 3 to 6 are the legal representatives of the deceased 1st respondent/1st defendant, ordered to be impleaded during the pendency of this 2nd appeal.
5. The case of the plaintiff before the trial court as stated in the plaint would be as follows:-
In May 1978 the 1st defendant came and represented to the plaintiff that the TNHB, Madras has allotted a plot at No.3609, Anna Nagar, Madras-40 more particularly described in the scheduled annexed hereto. The 1st defendant further represented that he had already paid a portion of the amount to the TNHB and there remained a balance still to be paid to the TNHB, Madras. The 1st defendant uppressed to the plaintiff his inability to pay the balance due to the TNHB and that he wanted to sell the schedule mentioned plot to the plaintiff. When the plaintiff questioned the 1st defendant whether he has got the right to sell the plot allotted to him even before he paid the entire amount due to the TNHB, the 1st defendant represented to the plaintiff that if the plaintiff could give the balance amount which remained to be paid to the TNHB he would pay the same the TNHB and sell the schedule mentioned plot to the plaintiff. The plaintiff believed the representation made by the 1st defendant and paid Rs.2216/- to the 1st defendant which according to the 1st defendant to be paid to the TNHB. Infact the 1st defendant took the above amount only from the plaintiff and paid the same to the TNHB. The 1st defendant entered into an "Agreement of Sale" on 14.05.1979 with the plaintiff in respect of the plot No.14.05.1979 with the plaintiff in respect of the plot No.3609 Anna Nagar, Madras -40 morefully described in the schedule annexed hereto for a total consideration of Rs.10,000/-. The 1st defendant also represented to the plaintiff that the sum of Rs.2216/- does not represent the sale consideration of Rs.10000/-. In pursuance of the agreement of sale dated 14.05.1979 between the plaintiff and the 1st defendant, the 1st defendant also put the plaintiff in physical and constructive possession of the schedule mentioned plot and as on date the plaintiff is in possession and occupation of the suit plot more fully described in the schedule hereto. As per clause 4 of the Agreement of Sale, the 1st defendant had received the entire sale consideration and infact more amounting in all Rs.12,216/-. The 1st defendant is now evading to execute and register the sale deed in respect of the schedule mentioned plot in favour of the plaintiff. The 1st defendant had received the entire sale consideration amount from the plaintiff. The 1st defendant in law is bound to execute and register the sale deed in favour of the plaintiff regarding the schedule mentioned plot.
6. The plaintiff therefore prays that this Court may be pleased to pass judgment and decree against the defendants:-
a. For the specific performance of the agreement of sale dated 14.05.1979 directing the defendants to execute and register the sale deed in respect of plot No.3609 Anna Nagar, Madras 40, morefully described in the schedule hereunder.
b. for permanent injunction restraining the defendants or its servants, or agents or his men or any other person or persons claiming through or under in any manner from dealing with the schedule mentioned plot in derogation to the right of the plaintiff.
c. directing the defendants to pay to the costs of the suit.
7. The objections raised by the 1st defendant in the written statement would be thus:-
The defendant never entered into an agreement of sale with the plaintiff on 14.05.1979 or on any other date in respect of plot No.3609, Anna Nagar, Madras-40 for a total consideration of Rs.10,000/- or for any amount. The agreement of sale is a rank and the plaintiff has filed the suit on a forged and the false document, for which he should be directed by this Court under Section 3402 Crl.P.C for prosecution of an offence under section 193 IPC. The defendant put the plaintiff in possession of the suit plot either in pursuance of the so called agreement of sale or otherwise any time. The defendant used to repay whenever he gets money. By way of this monetary transactions, a sum of Rs.12216/- was due by the defendants to the plaintiff, some time around the middle of 1980. On 10.09.1980, the plaintiff approached the defendant and demanded immediate repayment of the amount. When the defendant pleaded his inability to made immediate payment, the plaintiff showed a receipt dated 10.09.1980 for Rs.12216/- written in his letter head paper and asked the defendant to sign it stating that it is a receipt for Rs.12216/-. He threatened that if the defendant fail to sign the receipt, he will immediately remove all the stricles from the shop. The defendant however subsequently came to know that the receipt was taken as if the amount was paid for the suit plot. Subsequently he negotiated for the sale of the suit plot and entered into an agreement of sale with one K.M.Kalyanaraman for a sum of Rs.49000/-. On coming to know of this, the plaintiff trespassed into the suit property on 9.10.1980 and put up a thatched shed on it. On coming to know this trespass, the purchaser, wanted the defendant to remove the hut. Subsequently the defendant sold the suit plot to one S.Durairajan on 23.5.1981 for a larger amount, and as such the defendant is not the owner of the suit property now. The defendant never agreed to sell the suit property to the plaintiff at any time. In fact, the cost of the plot itself comes to more than Rs.17000/-. Moreover, even a reading of the so called agreement will prove that it is a false document. In case if this Court holds the agreement genuine and true still the plaintiff is not entitled for the equitable remedy of specific performance for the following reasons:-
a. The specific performance should not be granted for the reasons stated in Section 20(2) of the Specific Relief Act. The agreement is most unconscionable one and oppressive. The consideration is very low. It gives an unfair advantage to the plaintiff. It would also involve heave hardship on the defendant, whereas its non-performance would involve no such hardship on the plaintiff. Further the agreement is inequitable and onerous in the circumstances of the case.
b. The plaintiff was not ready and willing to perform his obligations under the terms of the agreement, not performed any obligation under the contract. Not even an allegation in the plaint that the plaintiff was ready and willing to perform his part of the agreement has been made. For the above reasons the suit is liable to be dismissed. In the above circumstances, the defendant prays that this Court may be pleased to dismiss the above suit with compensatory costs.
8. The objections raised by the 2nd defendant would be as follows:-
Under a deed of sale dated 23.05.1981, the 1st defendant sold the property purchased by him to this defendant and also put this defendant in possession of the property.The property purchased by this defendant was inspected before purchase and at the time of purchase there was none except a watchman. This defendant paid an advance of Rs.10,000/- and paid the balance of sale consideration of Rs.15,000/- at the time of registration of sale deed. The property was inspected by this defendant, prior to the purchase and the 1st defendant also represented that the property was his own property and there was no encumbrance and he would be free to enter into the sale transaction. This defendant puts the plaintiff to prove the allegations contained in para 5. This defendant purchased the property after consulting her advocate who saw the documents of title and she is a bonafide purchaser for value. The defendant is informed there is no agreement of sale dated 14.5.1979 or any other date between the plaintiff and the first defendant. The 1st defendant when questioned by this defendant on receipt of notice from this Court by this defendant specifically represented that the alleged agreement of sale is a concocted and forged one and he has executed any agreement of sale. On 14.05.1979 the 1st defendant himself had no right to enter into any transaction with regard to the plaint scheduled property with any one since he had no right, title or interest in the property. The sale deed in favour of the 1st defendant was executed only on 18.05.1981. The defendant denies the allegation contained in para 6 and puts the plaintiff to the strict proof to prove the allegations contains in para 6. The alleged agreement of sale is a concocted one and this defendant inspected the property before the purchase and there was nobody in occupation except a watchman, so the allegation that the plaintiff was in physical and constructive possession is false. All the allegations regarding the alleged agreement and possession in pursuance of the agreement are false. This defendant was given possession on the day of purchase and at that time as stated earlier there was only a watchman shed. This defendant is a bonafide purchaser for value, having purchased the property after obtaining legal opinion and the sale in favour of this defendant cannot be impugned in any proceedings. The suit as framed is misconceived and plaintiff has not come with clean hands and specific performance being a discretionary remedy the plaintiff is not entitled for the said relief. The plaintiff is also not entitled to call upon this defendant to execute and register any sale deed in respect of the property purchased by this defendant. The plaintiff is not entitled to the relief of injunction prayed for and the plaintiff is not enjoyment and possession of the property. The suit is misconceived and as stated earlier that there is no cause of action and the description of the schedule itself shows the plaintiff is not aware of any details and the suit is a speculated one. There are absolutely no merits in the claim and the present suit is a speculative one and after purchase of the property this defendant has obtained permission from the Corporation of Madras to put up construction. This defendant therefore submits that the suit is devoid of merits and may be dismissed with exemplary costs.
9. The trial court had framed necessary issues on the aforesaid pleadings and entered trial. After appraising the evidence produced before it, it had come to the conclusion of decreeing the suit for specific performance as prayed for by the plaintiff.
10. Having aggrieved by the judgment and decree passed by the trial court, the defendants separately filed the appeals before the 1st appellate court in A.S.Nos.392 of 1987 and 404 of 1987 respectively. After hearing both parties, the 1st appellate court allowed both the appeals and the judgment and decree passed by the trial court was upset and thus the suit was dismissed with costs throughout on 17.03.1988.
11. The plaintiff having aggrieved against the reversal judgment of the 1st appellate court preferred the second appeal before this Court in S.A.Nos.819 and 820 of 1989 and those appeals were admitted and this Court had formulated the following substantial questions of law:-
"1. Is the lower appellate court right in reversing the decree of the trial court when Ex.A3 has been admitted by the first defendant and Ex.A1 agreement is proved by the appellant pertaining to execution of the same ?
2. Is the lower appellate court right in holding that the second respondent is a bona-fide purchaser in the light of the pleadings of the defendants and evidence on record ?"
12. After hearing the arguments on either side, this Court had come to the conclusion of remanding those appeals to the 1st appellate court with the following directions:-
"i) Both the above second appeals are allowed setting aside the common judgment and decree dated 17.03.1988 respectively made in A.S.Nos.392 and 404 of 1987 by the VI Additional Judge, City Civil Court, Madras:
ii) the entire case is hereby remanded to the first appellate court, which shall refer Ex.A1 to a Handwriting/signature/Thumb Impression Expert, sending for such an Expert to the Court to make investigation to take impressions, to study the documents in the presence of the Court or the Court Officer as decided by the first appellate court and to do its investigation and submit the report in consideration of which to arrive at a valid decision in both the first appeals;
iii) since the subject is a long pending one, the first appellate court is hereby further directed to take of this matter out of turn and on priority basis and observing all such requirements and with due opportunity for both parties to be heard, deliver the judgment in six months from the date of receipt of a copy of this judgment;" apart from certain other directions.
13. The 1st appellate court in obedience to the direction of this Court made in the judgment and decree passed in the second appeals dated 11.08.2000 had caused Exs.A1 and A3 with the admitted documents containing the admitted signatures of the 1st defendant to be compared by a hand writing expert and obtained his report. It had also examined hand writing expert as CW1 and the photographer as CW2 and also admitted Exs.C1 to C3 in evidence. After appraising the evidence adduced before the trial court and the 1st appellate court, it had come to a conclusion of allowing the appeals and thereby the judgment and decree passed by the trial court was once again set aside. Consequently, the suit in O.S.No.5554 of 1981 was dismissed without costs.
14. Having aggrieved by the judgments and decrees passed in A.S.Nos.392 of 1987 and 404 of 1987 dated 06.12.2001, the plaintiff preferred the present second appeals before this Court.
15. On admission of both the appeals, the following substantial questions of law were formulated by the Court for consideration in these appeals.
"1. Whether the lower appellate court was right in holding that the signatures are forgery on the basis of expert evidence who has admittedly not compared the admitted signature with suit documents ?
2. Whether the lower appellate court was right in dismissing the suit solely relying upon the expert evidence alone, which is not a conclusive proof, overlooking the other evidences available in the suit ?
3.Whether the lower appellate court was right in coming to the conclusion that in the light of his admission during cross examination that he has not compared the disputed signatures with that of admitted signatures and the comparison with vakalat and written statement which are subsequent to the suit ?
4. Whether the court below was right in dismissing the suit by relying upon expert evidence alone contrary to the provision of Section 47 of Evidence Act ?"
16. Subsequently, the 1st respondent has filed an application in C.M.P.No.116 of 2012 seeking permission to amend the written statement filed by the 2nd defendant by adding a prayer to pass a decree and judgment against the plaintiff directing him to vacate and hand over vacant possession of the property to the 2nd defendant, as a counter claim.
17. The averments made in the affidavit in support of the above petition would be as follows:-
Even prior to filing of the above said suit by the respondent herein, the petitioner/1st respondent purchased the said property from the original owner R.L.Jadav under a registered sale deed dated 23.05.1981. Hence upon coming to know about the filing of the above suit against the said R.L.Jadav, the petitioner got himself impleaded in the said suit at second defendant. However, the suit was decreed in favour of the respondent herein. Both the petitioner and the said R.L.Jadav have filed separate appeals vide A.S.No.392 of 1987 and 404 of 1987 respectively on the VI Additional City Civil Court, Chennai. The VI Additional City Civil Court, Chennai by a common judgment and decree dated 17.03.1988 allowed both the said appeal suits and reversed the decree and judgment passed in O.S.No.5554 of 1981. Aggrieved by the common judgment dated 17.03.1988 the respondent herein filed two appeals S.A.Nos.819 and 820 of 1989 on the file of this Court. This Court by its common judgment dated 11.08.2000 made in the said two second appeals was pleased to remand the appeals back to the file of the lower appellate court with certain observations for the specific purpose of evaluating the genuineness of the signatures of the original owner in the alleged agreement for sale in favour of the respondent/appellant herein. The common judgment dated 11.08.2000 passed by this Court in S.A.Nos.819 and 820 of 1989 proceedings were initiated before the lower appellate court for appointment of an handwriting expert and ultimately Mr.M.Manonmani Rajan retired Director of Forensic Science Department, Govt. of Tamil Nadu was appointed for verifying the genuineness of Ex.A1. Thereafter, the said expert verified the disputed signatures in Ex.A1 agreement and the admitted signatures of the said R.L.Jadav in the signatures found in Ex.A1(alleged agreement for sale based on which the suit was filed) are forged and that Mr.R.L.Jadav had not signed the signatures found in Ex.A1. Subsequently the handwriting expert was also examined as CW1 and the photographer who took the photographs of the disputed signatures in the presence of both the counsels was also examined as CW2. Thereafter by a common decree and judgment dated 06.12.2001, the lower appellate court allowed both the appeals and set aside the decree and judgment passed in favour of the respondent herein in O.S.No.5554 of 1981. Aggrieved by the said common judgment dated 06.12.2001 the respondent herein has filed the above appeal S.A.No.1911 of 2001 as well as Second Appeal No.1910 of 2011 on the file of this Court. The said R.L.Jadav from who the petitioner purchased the said property has also categorically deposed that he had handed over vacant physical possession of the suit property. It is pertinent to mention that in the disputed agreement for sale dated 14.05.1979 it was not mentioned as if the possession had been parted to the respondent herein. While the fact remains so after getting the petitioer himself impleaded in the above suit and filing of his written statement the respondent herein with the malafide intent of snatching away the suit property had illegally trespassed into the suit property and had occupied a hut that was put up for Security Personnel. Since the respondent herein had filed the above suit and had committed criminal trespass the petitioner was not in a position to initiate criminal prosecution against the respondent herein. Further as the lower appellate court had categorically come to the conclusion that the agreement for sale dated 14.05.1979 is a forged document, the respondent has no right whatsoever to retain possession of the suit schedule property. Only if a specific order is passed directing the respondent to vacate and hand over vacant possession of the suit property to the petitioner, he will be in a position to enjoy the fruits of the decree that would be passed in his favour. At the time of filing of his written statement, there was no necessity for incorporating the prayer for vacating the respondent/appellant from the suit schedule property and he has committed trespass only after filing of the written statement and proceedings in the suit. As the trespass only after filing of the written statement and proceedings in the suit. As the trespass has been committed by the respondent/appellant within the pendency of the above proceedings unless the the petitioner permitted to amend his pleadings for the purpose of incorporating an additional prayer for vacating the respondent/appellant, serious prejudice and irreparable loss will be caused to him. For the said reason it has become necessary for the petitioner to take out an application to amend his pleadings by incorporating the following additional prayer "To pass a decree and judgment against the respondent/plaintiff directing him to vacate and hand over vacant physical possession of the suit property to the 2nd defendant. Adding such prayer will not alter the suit nature and that inclusion of such prayer will only given a final solution to the lis pertaining to the suit property. Unless the amendment sought for is allowed the petitioner/2nd defendant will be put to grave loss and irreparable injury on the other hand the respondent/plaintiff will be in no way prejudiced. Therefore, this Court may be pleased to amend the written statement filed by the 2nd defendant by adding the following prayer as counter claim:-
"To pass a decree and judgment against the respondent/plaintiff directing him to vacate and hand over vacant physical possession of the suit property to the 2nd defendant."
18. The objection raised by the respondent in the counter affidavit would be as follows:-
The amendment of the written statement is not maintainable in law. The 1st respondent filed the suit in the year 1981 seeking a relief for specific performance of an agreement of sale dated 14.05.1979 as well as for a permanent injunction restraining the defendants from interfering with the possession of the plaintiff. After a remand from this Court, again the matter is in the stage of second appeal and it is pending from the year 2004. The written statement was filed by the 1st defendant as early as February 1982 and in paragraph 6 of the written statement it was contended by the 1st defendant that the plaintiff trespassed into the suit property on 09.10.1980 and put up a thatched shed on it and subsequently the purchaser, i.e. the 2nd defendant i.e. the petitioner herein removed the hut and occupied the suit plot. As far as the 2nd defendant, i.e. the petitioner herein is concerned, she has taken a stand in paragraph 6 of her written statement denying the possession of the plaintiff. At this stage nearly more than 30 years after the institution of the suit, at the second appeal stage an application has been filed by the petitioner herein seeking permission to amend the written statement, praying for possession of the suit property. In paragraph 8 of the affidavit it has been stated that the 1st respondent have trespassed the suit property and occupied a hut that was put up for securing personnel, but not detail as to when the 1st respondent trespassed into the suit property and occupied the same has been given. The said allegation is false very much to the knowledge of the deponent. The 1st respondent in his chief and well as the cross examination stated that he is in possession of the suit property. Apart from that PW3 has also confirmed his possession in his oral evidence. DW1 has stated in his cross examination that he is not aware whether DW2 the petitioner has stated is in possession of the suit property as on the date of his evidence, i.e. On 21.07.1986. Likewise DW2, the petitioner herein in her cross examination dated 28.07.1986 has stated that "DW1 was not in possession of the suit property at the time of her purchase nor did the DW1 handed over the lock or key of the suit property to her. On the date of the registration of the suit property there was a thatched shed in the suit property, but she did not enquire as to whom it belonged to. DW1 stated that it belongs to him. After the registration she did not put up any construction nor she has put up construction subsequently in the suit property. She does not remember as to what type of shed it was, whether a thatched shed or not". The allegations made in para 10 of the affidavit that the 1st respondent trespassed into the suit property after filing of written statement is incorrect, false and specifically denied and to coverup the false statement taken up in the written statement the said allegation is made. The 1st respondent reserve his right to file a separate application against the defendants for filing false written statement that they are in possession of the suit property, as well as for filing a false affidavit, that too after a period of 26 years that the 1st respondent have trespassed into the suit property, after filing of the written statement. In view of the above averments, the 1st respondent request the Court that the application for amendment of written statement may be dismissed.
19. On the said allegations and counter allegations I could see the following point has to be framed to be considered along with the substantial questions of law.
1. Whether the application in C.M.P.No.116 of 2012 has to be allowed and the 2nd defendant be permitted to amend the written statement ?
20. Heard Mr.G.Rajagopalan, learned Senior counsel appearing on behalf of Mr.C.P.Pattabiraman, learned counsel for the appellant/plaintiff and Mr.S.Thangasivam, learned counsel appearing for the 2nd plaintiff/2nd defendant and Mr.S.K.Chandrakumar, learned counsel appearing for the respondents 3 to 6 who are the legal representatives of the deceased 1st respondent/1st defendant.
21. The learned counsel for the appellant/plaintiff would submit in his argument that the lower appellate court had wrongly come to a conclusion by entirely relying upon the report of the hand writing expert that the signature of the 1st defendant found in Exs.A1 and A3 do not tally with the signature found in vakalat and written statement. He would also submit that the evidence of hand writing expert was considered as a gospel truth whereas he did not compare the admitted signatures with disputed signatures by using sophisticated equipments to which he has also admitted in his cross-examination. He would also submit that the report of the hand writing expert need not be accepted by the Court if valid reasons are there and it would be only an opinion and it may be a piece of evidence for being considered along with the other evidence for deciding the case. He would further submit that the lower appellate court had relied solely upon the expert's opinion and had decided the points at the issue without appraising the other points to be decided in the appeal. He would also submit that the evidence of PW2 was not considered by the 1st appellate court and if considered it would come to a conclusion of accepting the execution of Ex.A1. He would further submit that the reasoning given by the 1st appellate court that the recitals in Ex.A3 receipt did not contain anything about Ex.A1 agreement cannot be a correct appreciation of evidence in view of the fact that other evidence are available to show that both the documents were executed by the 1st defendant. He would further submit in his argument that the evidence of PW3 regarding possession of land was also not considered. He would also submit that the case of the 2nd defendant has been falsified by the evidence adduced by her and therefore, the 1st appellate court did not consider the said circumstance to reject the claim of the 2nd defendant.
22. The learned Senior counsel would urge in his argument that the 1st appellate court did not go into other findings reached by the trial court and therefore, the judgment of the 1st appellate court is not in accordance with the obligations cast upon the Court under Section 96 CPC.
23. He would also submit that the pleadings put forth by the defendants are mutually destructive and therefore, the case of the defendants should not be relied upon.
24. Relying upon the said judgment he would submit that the 1st defendant was raising a plea that the plaintiff was not ready and willing to perform his part of the contract and at the same time, he was challenging the agreement as a fabricated one which cannot be permitted in law. He would also cite a judgment of Hon'ble Apex Court reported in 1996(II) SCC 690 (Shrimoni Gurdwara Committee v. Jaswant Singh) in support of his argument.
25. He would also cite a judgment of this Court reported in 1998(II) CTC 613 (N.Saraswathi Ammal v. Jayaram Rao and 2 others) for the principle that a person who approach the Court seeking equity must also do equity and the said principle is also applicable equally to a defendant, like that of a plaintiff.
26. He would further submit that the 1st defendant cannot be permitted to introduce a new cause of action or new case abandoning the earlier case. He would cite a judgment of this Court reported in 2003 (3) MLJ 342 (Sivagnanamoorthy v. M.Shanmugam) in support of his argument.
27. The learned senior counsel had also cited yet another judgment reported in 2008(7) SCC 85 (Gautam Sarup v. Leela jetly and others) for the same principle.
28. He would also submit the pleas raised in the written statement are mutually destructive and therefore, it cannot be said that the plaintiff was not entitled to a decree as sought for by him. He would also submit in his argument that the judgment of the 1st appellate court pronounced in an earlier occasion was referring to a situation that the plaintiff did not plead and prove the readiness and willingness and therefore, he was found not entitled to specific relief. He would submit that the over all situation and circumstance pleaded in the plaint as well as spoken in evidence should have been considered for ascertaining the readiness and willingness as envisaged in Section 16(c) of the Act. For that, he would rely upon the judgment of Hon'ble Apex Court reported in AIR 2006(SC) 2172 (Sugani v. Rameshwar Das) in support of his argument. He would also submit that the publication in the Dinathanthi paper as well as the notice issued would establish the readiness and willingness of the plaintiff to perform his part of the contract. He would further submit that the signature in Ex.A3 was admitted by the 1st defendant but it was stated to have been obtained by using force from the 1st defendant and it was considered as an admitted signature by the expert himself. He would also submit that the admission of signature in Ex.A3 would be amounting to the execution of Ex.A3 and it is for the 1st defendant to explain the circumstances under which the signature was put by the 1st defendant as pleaded by him. He would also submit that the said circumstance was not considered by the 1st appellate court and Ex.A3 cannot be considered separately for arriving to any conclusion. He would further submit in his argument that the judgment of the 1st appellate court was not complete in respect of the findings reached by the trial court and therefore, it had be set aside and the 2nd appeals filed by the plaintiff may be allowed and the judgment and decree passed by the trial court may be restored.
29. The learned counsel for the 2nd respondent/2nd defendant would submit in his argument the evidence adduced by PWs 1 and 2 are contradicting seriously each other and also in respect of Ex.A1 the alleged agreement. He would further submit in his argument that the evidence of PW1 that he had spoken in his evidence that he has paid Rs.2000/- on the date of execution of agreement of sale agreed to purchase at Rs.10,000/- but in the plaint, he stated that the sum of Rs.2,216/- was paid and subsequently he has paid Rs.10,000/-. He would also submit that the possession was stated to have been given on the date of agreement of sale whereas he had deposed in his evidence, possession was given to him during October 1979 and the facts mentioned in the plaint para 7 was falsehood and on that aspect itself, the equitable relief of specific relief need not be granted in favour of the plaintiff. He would also submit that the trial court did not consider the said circumstance and therefore it was rightly reversed by the 1st appellate court earlier and also under the subsequent judgment after the remand by the 1st appellate court.
30. He would also submit that the plaintiff did not give any possession of the suit property and after the filing of the suit, he had unlawfully encroached the suit property and occupied the security shed put up in the suit property and now he is in unlawful possession. When the plaintiff is continuing in unlawful possession, the 2nd defendant being the owner of the property entitled to recover possession of the said property from the plaintiff. He would therefore, submit that the 2nd defendant can raise a counter claim over the claim of the plaintiff by seeking recovery of possession from the plaintiff and therefore, he has filed the application in C.M.P.No.116 of 2012 seeking to amend the written statement with the prayer of recovery of possession. He would also submit that the right to seek possession should not be defeated merely because she had not asked for in the suit by way of counter claim. He would also submit that Ex.A1 agreement was not referred in Ex.B15 reply notice sent by the plaintiff's counsel on 07.11.1980. He would further submit that the document Ex.A3 does not refer to the contents of Ex.A1. He would further submit that those discrepancies were considered with the evidence of CW1 to the effect that the Ex.A1 was not signed by the 1st defendant and the signature found therein would be fabricated or not signed by the 1st defendant would go to show that the 1st question of law has to be decided in favour of the 2nd defendant and against the appellant/plaintiff. He would further submit in his argument that the evidence of CW1 coupled with the suspicious circumstances perceived from the contradictions as already argued, to show the 1st defendant's signature ought to have been fabricated for the purpose of the case. He would also submit that the 1st appellate court had clearly discussed in paragraph 10 of its judgment and on that score itself, the 2nd question of law can not also be decided in favour of the appellant. He would also submit in his argument that this Court in its judgment made in S.A.Nos.819 and 820 of 1989 dated 11.08.2000 directed the 1st appellate court to send the signatures found in Exs.A1 and A3 and certain other admitted signatures of the 1st defendant to get findings and therefore there would not be any bar for the 1st appellate court to send the signatures in vakalat and written statement filed in the suit long before the order of this Court, and therefore it cannot be said that the 1st appellate court did not comply with this Court's order. Therefore, he would submit that the 3rd question of law has also to be decided in favour of the defendants. He would further submit that the 4th question of law has also to be decided in favour of the defendants since the 1st appellate court had come to the conclusion of discarding Ex.A1 agreement on the basis of the evidence of CW1 (hand writing expert) coupled with other discrepancies between the evidence of PWs and the contents in Exs.A1 and A3. He would further submit that this Court had specifically directed the 1st appellate court to send those documents to hand writing expert and to obtain his opinion and to deliver judgment in six months after giving due particulars to both parties and therefore, it cannot be argued by the appellant that the 1st appellate court did not go through the other aspects in coming to a conclusion that Ex.A1 sale agreement was a fabricated one. He would also submit in his argument that an expert opinion has to be relied upon unless the contrary is proved. He would cite a judgment of Hon'ble Apex Court reported in 2009(9) SCC 709 (Ramesh Chandra Agarwal v.Regency Hospital Limited and others) in support of his argument. He would further submit in his argument that without any contract regarding agreement of sale there could not be any obligation for the enforcement of specific relief. He has cited a judgment of Hon'ble Apex Court reported in 1990 (3) SCC (1) (Smt. Mayawanti vs Smt. Kaushalya Devi), in support of his argument. Further more, he would submit in his argument that the amendment sought for in the written statement to claim possession of the suit property could be ordered in the light of a judgment of Hon'ble Apex Court reported in 2009 (7) SCC 457 (Dhanpal Balu Lhawale and others v. Adagouda Nemagouda Patil (dead) by prop. LRs). Relying upon the said judgment, the learned counsel for the 2nd defendant would submit that in order to render substantial justice the Hon'ble Apex Court had ordered amendment of the prayer clause to hand over possession to the appellant even in SLP stage, and therefore, he would request the Court to permit the 2nd defendant to amend the written statement so as to raise the counter claim. He would also submit that this Court in an earlier occasion while dealing with the 2nd appeals in S.A.Nos.819 and 820 of 1989, had come to the conclusion that the entire case rests on the opinion on the expert, to which the documents Exs.A1 and A3 have to be sent for opinion and therefore this Court had directed the 1st appellate court to decide both the appeals on such expert's opinion rendered on the vital document Ex.A1 and directed so. He would therefore submit that the findings of the 1st appellate court reached in the 1st appeal on the basis of experts opinion coupled with other evidence to support the nature of the documents Exs.A1 and A3 and therefore, there is no flaw in the judgment of the 1st appellate court in allowing the appeal after setting aside the judgment and decree passed by the trial court. He would therefore request the Court to confirm the findings reached in the judgment and decree passed by the 1st appellate court and to dismiss the second appeals. He would also request that the 2nd defendant may be permitted to amend the written statement filed by her and on that basis the 1st plaintiff may be directed to hand over vacant possession of the suit property to the 2nd defendant.
31. I have given anxious considerations to the arguments advanced on either side.
32. Originally, the plaintiff filed the suit for specific performance of an agreement produced in Ex.A1 stated to have been executed by the 1st defendant. The 2nd defendant was the subsequent buyer of the suit property said in the agreement produced in Ex.A1 and the 2nd defendant is claiming to be a bona-fide purchaser for the value without notice of the said agreement. The agreement was in respect of Plot No.3609 in Anna Nagar, Chennai-40. The prayer in the amended plaint would be as follows:-
a. For the specific performance of the agreement of sale dated 14.05.1979 directing the defendants to execute and register the sale deed in respect of plot No.3609 Anna Nagar, Madras 40, morefully described in the schedule hereunder.
b. for permanent injunction restraining the defendants or its servants, or agents or his men or any other person or persons claiming through or under in any manner from dealing with the schedule mentioned plot in derogation to the right of the plaintiff.
c. directing the defendants to pay to the costs of the suit.
33. According to the plaintiff, the 1st defendant who was the owner of the suit property namely Plot No.3609, Anna Nagar, Chennai-40 had executed an agreement of sale dated 14.05.1979 for a total consideration of Rs.10,000/-. The further case of the plaintiff was that on the representation of the 1st defendant, he has to pay a sum of Rs.2,216/- to the TNHB. He paid the said sum of Rs.2,216/- to the 1st defendant and who in turn, paid the amount to the TNHB towards arrears. The further case of the plaintiff was that out of the said sum of Rs.10,000/-, only a sum of Rs.2000/- was paid on the date of Ex.A1 and the remaining consideration would be paid whenever the vendor require the said money through passing a separate receipt. Furthermore, the stipulation in Ex.A1 was that the possession of the property would be handed over to the plaintiff by the 1st defendant on payment of the entire money. Therefore, I could see that no possession was handed over to the plaintiff by the 1st defendant on the payment of the entire money and therefore, no possession was handed over on the date of Ex.A1. However, in the plaint paragraph No.7, it has been categorically stated that the plaintiff was put in physical possession of the scheduled mentioned property and the plaintiff was in possession. The plaintiff in his evidence has categorically admitted that the averment made in para 7 of the plaint was a falsehood.
34. The further case, as seen in the evidence, was that the 1st defendant had received a sum of Rs.12,216/- from the plaintiff on 10.09.1980 and had executed a receipt in favour of the plaintiff. However, the said passing of receipt as produced in Ex.A3 was not pleaded in the plaint. The cause of action paragraph would show that on 10.09.1980, the defendant had received the entire amount from the plaintiff and on that day, the 1st defendant put the plaintiff in possession of the suit plot. Even in that paragraph, no passing of receipt in Ex.A3 was referred to. On a cursory look of Ex.A3, I could see that the receipt was not stamped which was subsequently paid with stamp duty and penalty before admitting the said document into Court. The said receipt was written in the letter head of the plaintiff. Moreover, it does not speak about the execution of Ex.A1 agreement and in pursuance of which, the said amount was received by the 1st defendant. However, it has been stated that the amount paid on 10.09.1980 in Ex.A3 was towards Anna Nagar land. If really the said document produced in Ex.A3 document was in pursuance of Ex.A1 agreement, it would be only for a sum of Rs.8000/- which should be the balance sale consideration as per Ex.A1. Furthermore, there is no reference as to the handing over of the possession of the suit property in Ex.A3. The plaintiff had stated in paragraph No. 7 that the possession of the suit property was handed over as on the date of Ex.A1 and in cause of action paragraph, the possession was handed over on 10.09.1980 and both are mutually contradictory pleas. Actually, PW1 has admitted in his evidence that the averments in paragraph No. 7 of the plaint are falsehood. The plaintiff himself had spoken about his pleadings as a false one. The non-reference of Ex.A1 in Ex.A3 receipt would raise a doubt regarding the existence of Ex.A1 agreement.
35. Moreover, the evidence of 1st defendant as DW1 would go to show that his signature was obtained by the plaintiff with compulsion in a blank letter head of the plaintiff which was subsequently converted as Ex.A3. When such a defence has been raised by the 1st defendant, it is for the plaintiff to adduce cogent and acceptable evidence regarding existence of Exs.A1 and A3. In the reply notice sent in Ex.B15, there was no reference about the execution of Ex.A1 agreement. All these circumstances, had led to upset the findings of the judgment and decree passed by the trial court by the 1st appellate court in an earlier occasion against which, the 2nd appeals in S.A.Nos.819 and 820 of 1989 were preferred before this Court and this Court had ordered with specific directions. In the said judgment of this Court, it was found that the entire case was depending upon the truth and genuineness of Ex.A1 as it was stoutly denied by the 1st defendant as fabricated. Accordingly, this Court had directed the 1st appellate court to send the disputed document Ex.A1 to the hand writing expert along with Ex.A3, in which, the signature of the 1st defendant was obtained and other admitted signatures for being compared by a hand writing expert and to get his opinion and to pass judgment thereon. This Court has categorically found that the findings regarding the truth and genuineness of Ex.A1 would settle the entire dispute as the conclusions arrived at on the part of 1st appellate court are inconsistent and infirm, on that occasion.
36. On the basis of the said order of this Court made in second appeals in S.A.No.819 and 820 of 1989 dated 11.08.2000, the 1st appellate court had found that Ex.A1 agreement was forged and fabricated one as per the evidence of hand written expert, who was examined as CW1 and through his report Exs.C1 to C3.
37. Whether the said finding of the 1st appellate court can be found as incorrect. For that, I have to see, whether the perception of the 1st appellate court while appraising the evidence of CW1 and CW2 along with Exs.C1 to C3 are perverse or biased or not in accordance with the principles of law.
38. On a careful perusal of the evidence of CW1, he had categorically given the reasons that the disputed signatures in Ex.A1 and the admitted signatures in Ex.A3 and Vakalat and written statement were not signed by the same person and the signatures in Ex.A1 were signed by some other person and not by the 1st defendant.
39. The objections raised was that the signatures in the written statement as well as in vakalat would be of recent origin and they would not depict the correct pictorial appearance or the resemblance of the signatures put in the year 1979. No doubt ,this Court had ordered to compare the signatures found in Ex.A3 to be compared as admitted signature because, the signature of the 1st defendant was admitted but was said to have been obtained by force. Moreover, the signatures obtained in the vakalat and written statement, filed in the years 1981 and 1982 respectively and therefore, there would not be much difference in the admitted signatures which were compared by the expert with the signatures found in Ex.A1. Moreover, the order passed by this Court would reveal that certain admitted signatures of the 1st defendant along with Ex.A3 signatures have to be compared by the hand writing expert to offer their remarks and findings. Therefore, nothing is wrong in the procedure adopted by the hand writing expert in comparing the disputed signatures in Ex.A1 with the admitted signatures found in Ex.A3 and in the vakalat and in the written statement filed by the 1st defendant. There is no other strong reason put forth for rejecting the evidence of the hand writing experts' opinion.
40. No doubt, it is true that the opinion of the hand writing experts is only a circumstance and it is not mandatory for the Court to accept the opinion. The court is always at its discretion to either accept or reject the report of the hand writing expert depending upon the facts and circumstances of each case. This fact was considered by the Court in its earlier judgment on the basis of the contradictory pleas raised by the plaintiff in the plaint itself which had come to a conclusion that the crucial point is only in respect of truth and genuineness of Ex.A1. On comparison of signatures found in Ex.A1 with that of Ex.A3 as detailed in Exs.C1 to C3, I could not differ with the opinion given by the hand writing expert. Therefore, the acceptance of the report of the hand writing expert by the 1st appellate court to reach a conclusion cannot be differed but to countenance those findings. The judgment of this Court as cited by the learned counsel for the appellant/plaintiff reported in 1998(II) CTC 613 (N.Saraswathi Ammal v. Jayaram Rao and 2 others), would lay down the following principle.
"22. Apart from the above discussion the question has to be considered also from the angle as to whether the equitable relief is to be denied to the plaintiff in this case. The principle that who seeks equity must do equity and that the parties should approach the Court with clean hands would apply equally to the plaintiff as well as the defendant. An equitable relief to be granted or to be refused should be based on sound judicial principles as mandated under Section 20 of the Specific relief Act. The genera principle that the defendant is at liberty to put-forth inconsistent pleadings will not come to the rescue of inconsistent pleadings which are totally contrary to the truth and unconscionable and aimed at denying an equitable relief to which the plaintiff would be entitled to. The attitude of the defendants, in this case as enlisted herein is bound to weigh in the judicial conscience in rendering the ultimate verdict.
(a) The first defendant who had undoubtedly an interest in the property and had signed the document for himself and the second defendant, keeps out of the Court and the second defendant would take advantage of the situation to contend that he is not a signatory and therefore, the agreement will not bind him. The claim was found against by the lower appellate Court.
(b) Merely for the purpose of denying the statutory benefit available to the plaintiff under Section 53-A of the Transfer of Property Act, the defendants would go to the extent of falsely contending that the plaintiff had entered into the property only under the guise of a tenant. They would also state that the amount paid by the plaintiff towards discharge of the mortgage as claimed by the plaintiff was not true and that the said payment was only towards the oral agreement of the tenancy. There is absolutely no proof of any tenancy and all these statements are nothing but falsehood in the face of the recitals in Ex. A.1. The defendants would appear to refer to Ex.A.1 only for the purpose of pleading" limitation under the first limb of Article 54, but would expect the Court to shut its eyes with reference to all the other clauses and endorsements.
(c) Even the payments made by the plaintiff and fully acknowledged and endorsed by the first defendant are denied by the defendants.
(d) The intention between the parties to hand over possession of the property on the execution of the agreement is clear from clause 6 of the agreement. The said clause also discloses that the defendants found it not possible to have the tenant vacated from the premises. The uphill task of evicting the tenant in a Metropolitan City was thrown on the shoulders of the purchaser and after the purchaser successfully got possession of the property by paying the tenant Rs.4,500 (One-fourth value of the property), the defendants would not give credit to the said amount towards the sale consideration and at the same time seek to deprive the plaintiff the benefit of Section 53-A of the Transfer of Property Act."
41. In the said judgment, it has been categorically mentioned that the principles of equity is applicable to both parties namely plaintiff and the defendant and the grant of equitable relief depends upon such act of the parties under Section 20 of the Specific Relief Act. However, when we apply this principle to the present case, it has been established that the plaintiff has uttered lie in his evidence regarding the handing over of the possession on the date of sale agreement Ex.A1 and in the cause of action paragraph as on 10.09.1980. The non-mentioning of execution of Ex.A3 in the plaint as well as the contradictory pleadings regarding payment of money paid to the 1st defendant by the plaintiff would show that the plaintiff did not come to Court with clean hands. Moreover, it has been found that Ex.A1 sale agreement was mere a fabricated one as found by the 1st appellate court which was countenanced by this Court. In the back drop of this case, when we approach the pleas of the defendant raised in the written statement, I do not find any false plea so as to deprive the relief sought for by the defendants. The present plea raised for amending the written statement for the relief of recovery of possession may be a different or inconsistent plea to which, the 2nd defendant was already referred in her written statement. Such inconsistent pleas are permissible. So far as the defendants are concerned, except when those pleas would not mutually destructive each other. Therefore, the defendants cannot be found to have come to Court with unclean hands. Even otherwise as per the celebrated maxim "Potior est conditio defendentis" which means that if both parties to the litigation are equally guilty, the condition of defendant is better than that of the plaintiff. In such an occasion where both parties are guilty of coming to Court with unclean hands, the loser would be the plaintiff. Therefore, the said principle laid down by this Court reported in 1998(II) CTC 613 (N.Saraswathi Ammal v. Jayaram Rao and 2 others) is not helpful to the plaintiff.
42. As regards the amendment of written statement, I could see that the 2nd defendant seeks for such an amendment by stating that the plaintiff had interfered with the possession of the 2nd defendant by occupying the security shed unlawfully.
43. Per contra, the plaintiff pleaded that the possession was handed over to the plaintiff on the date of execution of Ex.A3, which was not found to be correct. However, the amendment sought for by the 2nd defendant was objected to by the plaintiff as barred by law of limitation. It is the settled law that any person claiming to be in possession in pursuance of the sale agreement cannot plead adverse possession. No doubt, the plaintiff has pleaded to be in possession of the suit property by virtue of Ex.A1 agreement and Ex.A3 receipt. Therefore, the plaintiff cannot plead the law of limitation as against the plea of recovery of possession by the 2nd defendant. Now, the 2nd defendant wants to include the prayer for recovery of possession as a counter claim at the stage of second appeal. The proposed amendment as put forth in the application does not mention about the valuation of the relief and the Court fee paid thereon.
44. The learned Senior counsel for the appellant/plaintiff has submitted catena of judgments for the principle that the amendment cannot be ordered at the stage of second appeal. In a judgment reported in AIR 2005 HP 21 (Jeetram Kishore and others v. Sunder Singh), it has been held as follows:-
"34. Admittedly, list of witnesses, process fee and road and diet money was deposited on 27.08.2003 on behalf of defendants. Why it could not be done earlier within the time allowed after framing of issues, no explanation was given by learned senior counsel. It is the high time that the Courts themselves become sanguine and alert that the procedural law is followed in its letter and spirit. This will be a step in aid towards expeditious disposal of the cases. This is not the first case where the lapse on the part of the parties as well as the Courts has been observed by this Court in this behalf."
45. A judgment of this Court as reported in 2003 (3) MLJ 342 (Sivagnanamoorthy v. M.Shanmugam) was relied upon for the same principle. The said passage would be thus:-
"14. From the above, it is clear that the Courts cannot ignore the original written statement which is on record in which the defendant himself has come forward with the prayer for partition, and specifically pleaded that the respondent/plaintiff is in possession of the I item of the suit properties. In view of the said admission with respect to the case of the plaintiff, the respondent/plaintiff is entitled to rely on the same, though the appellant/defendant has taken a different stand in the additional written statement. Hence the Courts below are not correct in ignoring the original written statement which is on record, and dealt with the case only on the basis of additional written statement."
46. In a judgment of the Hon'ble Apex Court reported in 2008(7) SCC 85 (Gautam Sarup v. Leela jetly and others), it has been held as follows:-
"28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other."
47. Similarly, it has been also decided in a judgment of the Hon'ble Apex Court reported in 1996(II) SCC 690 (Shrimoni Gurdwara Committee v. Jaswant Singh). It should also be relevant to note as follows:-
" 3. ..... It is settled law that the defendant can raise mutually inconsistent pleadings in the written statement it is for the Court to consider whether the case can be properly considered in deciding the issue. But in this case the plea in the written statement is mutually destructive. In the first written statement, they have denied the title of Isher Singh himself. When such is the situation, how can they set up a title in him and plead gift made by Isher Singh in favour of the petitioner-Committee. Under these circumstances, the High Court has rightly refused to grant the plaint. Moreover, there is no explanation given as to why they came forward with this plea at the belated stage after the parties had adduced the evidence and the matter was to the argued. Under these circumstances, we do not find any error of jurisdiction or material irregularity in the exercise of jurisdiction warranting interference."
48. Yet another judgment of Hon'ble Apex Court reported in 1976 (4) SCC 320 (M/s.Modi Spinning & Weaving Mills Co. Ltd and another v. M/s.Ladha Ram & Co.), has been cited for the same principle which runs as follows:-
"10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants."
49. In the aforesaid judgment cited by the learned counsel for the appellant/plaintiff, I could see that the defendant, even though entitled to raise inconsistent pleas in the written statement, he cannot be permitted to raise mutually destructive pleas either in the form of additional written statement or through amendment of the written statement already filed by him. It has been already seen that the pleas raised by the 2nd defendant seeking for recovery of possession in the written statement was only a prayer based upon the pleadings already raised in the written statement. Therefore, the said prayer cannot be considered as mutually destructive plea of the 2nd defendant. I have already concluded that the plea of the plaintiff that he was put in possession in pursuance of the agreement of sale Ex.A1 (which was not found to be a true document) will not enure any adverse interest or accrue any right of adverse possession as against the defendants. Therefore, the limitation for seeking possession of the property would be available to either 1st defendant or 2nd defendant as the case may be only after concluding the right of getting specific performance in respect of the suit property. Therefore, the claim for recovery of possession can be asked for by the 2nd defendant after the dispute in between the parties regarding the claim of specific relief is finally decided.
50. No doubt, the specific relief is an equitable relief, to be granted on exercising its discretion by the courts under Section 20 of the Specific Relief Act and the provisions have to be complied with for the grant of such a relief. It is an admitted fact that the plaintiff did not plead and prove that he was always ready and willing to perform his part of the contract in the suit. The said requirement is mandate under Section 16(c ) of the Specific Relief Act. When these two principles are applied to the present case, I could see that the plaintiff did not put forth correct particulars and uttered lie in the plaint filed before the Court which would brand him as a person with unclean hands.
51. The judgment reported in 1990 (3) SCC (1) (Smt. Mayawanti vs Smt. Kaushalya Devi), it has been held as follows:-
"11. ........ The rule is that the acceptance must be absolute, and must correspond with the terms of the offer. If the two minds were not ad idem in respect of the property to be sold, there cannot be said to have been a contract for specific performance. If the par- ties themselves were not ad idem as to the subject matter of the contract the court cannot order specific performance."
52. When we apply the principle laid down by Hon'ble Apex Court, I could see that there would not be any consensus in between the parties namely the plaintiff and the 1st defendant and even if we consider that there was an ad idem in between them, the plaintiff was not entitled to the specific relief as sought for by him as he approached the Court with false pleas and unclean hands.
53. Learned counsel for the 2nd defendant has also cited certain judgments in support of the plea for amending the written statement. In the judgment reported in 2009 (7) SCC 457 (Dhanpal Balu Lhawale and others v. Adagouda Nemagouda Patil (dead) by prop. LRs), the following passage has been relied upon which would run as follows:-
"11. We accordingly in the interest of justice allow this appeal, set aside the order of the High Court dated 7.4.1999 in RSA No.73 of 1997 and in the light of the amended prayer clause direct the respondent to hand over possession to the appellant herein by the end of the year 2010, on paying a sum of Rs.5000/- per acre and filing an undertaking in the above terms within 12 weeks from today. In case the undertaking is not filed, the appellant will be entitled to seek police help to recover possession."
54. On a careful perusal of the factual matrix discussed in the said judgment, the Hon'ble Apex Court had permitted the amendment in respect of possession of the suit property at SLP stage under the power conferred upon the Apex Court under Article 136 of Constitution of India. Therefore, such a relief cannot be granted by this Court as sought for by the 2nd defendant. However, this Court is governed by the principles of CPC. The amendment of the prayer sought for by the 2nd defendant was in the form of counter claim. As per Order 8 Rule 6(A) CPC, a counter claim must be raised with the permission of the Court and it can be treated as a separate plaint. When such counter claim has been raised by the defendant, an opportunity must be given to the plaintiff to resist the same by filing a reply statement which would be otherwise deemed as written statement in answer to the counter claim. All these proceedings are necessarily required for the purpose of disposing the counter claim. The evidence regarding the said prayer and the claim over the counter claim has to be let in and it would not be possible at the stage of second appeal for entertaining the counter claim of recovery of possession. The 2nd defendant, in the amendment application filed by her did not value the relief of recovery of possession and omitted to maintain the Court fee payable for the said relief in the event of amendment sought for is permitted. In the back ground of the said defects and the procedural flaws, the 2nd defendant cannot be permitted to amend the written statement as sought for by her at this stage. However, the rejection of amendment of the written statement would not in any way prejudice the 2nd defendant since she can file a separate suit for recovery of possession in the event of the dismissal of the suit filed by the plaintiff which would give a cause of action. As already discussed and found that there would not be any limitation for the recovery of possession stated to have obtained by the plaintiff through the agreement of sale.
55. In the said circumstances, I am of the considered view that when the 2nd defendant can file a separate suit for the recovery of possession he cannot be permitted to amend the written statement by way of counter claim.
56. In the aforesaid circumstances, the request for the amendment of the written statement is not allowable. In the earlier paragraphs, I have discussed and found that the 1st appellate court's findings regarding the evidence of CW1 with the opinion, report and photographs filed in Exs.C1 to C3 were acceptable and the finding that the agreement produced in Ex.A1 was not true and genuine document, cannot be interfered. The questions of law framed on the validity of the report of the hand writing expert are also decided against the appellant since the experts opinion and report are not contrary to the provisions of Section 47 of the Evidence Act.
57. Therefore, I am of the considered view that the judgments and decrees passed by the first appellate court are not assailable and therefore, they are confirmed and the second appeals filed by the plaintiff against the judgment of the first appellate court are liable to be dismissed with costs. Consequently, CMP No.116 of 2012 is dismissed with the observations made therein.
58. In fine, the second appeals preferred by the appellant are dismissed with costs by confirming the judgments and decrees passed by the first appellate court in A.S.No.392 of 1987 and A.S.No.404 of 1987 dated 06.12.2001 in reversing the judgment and decree passed by the trial court made in O.S.No.5554 of 1981 dated 17.09.1986 in decreeing the suit. With the observations made in the earlier paragraphs, the CMP No.116 of 2012 is dismissed.
25.07.2012 Index:Yes/No Internet:Yes/No ssn V.PERIYA KARUPPIAH, J., ssn To
1. The I Additional City Civil Court, Chennai
2. The XIV Assistant City Civil Court, Chennai.
Pre-delivery Judgment in S.A.Nos.1910 and 1911 of 2004 25.07.2012