Andhra HC (Pre-Telangana)
Bolisetti Venkateswara Rao And Ors. vs Nadakuditi Venkateswara Rao on 1 October, 2002
Equivalent citations: 2002(6)ALD256, 2002(6)ALT103
Author: Bilal Nazki
Bench: Bilal Nazki, G. Rohini
JUDGMENT Bilal Nazki, J.
1. These are two L.P.As filed against the common judgment of the learned single Judge in appeals A.S.No.538 of 1992 and Tr.A.S.No. 416 of 1993! The appeals were filed against the common order passed in O.S.No. 42 of 1987 and O.S.No. 46 of 1987 decided by the Subordinate Judge, Tenali. A.S.No.538/92 arose against the judgment in O.S.No. 42/87 whereas the judgment in O.S.No. 46/87 gave rise to Tr.A.S.No. 416/93. We will be referring to the parties as 'plaintiff and 'defendants' as they appear in the suit for specific performance.
2. The plaintiff filed a suit for specific performance of an agreement and wanted the defendants to execute the sale deed whereas the defendants claimed that the plaintiff was their tenant and they filed a suit for recovery of possession and determination of tenancy. The suit for specific performance was decreed and the suit filed by the defendants for recovery of possession was dismissed. Therefore the defendants filed both the appeals before the learned single Judge. The learned single Judge upheld the judgment of the trial Court and therefore these two letters patent appeals have been filed by the defendants.
3. The brief facts giving rise to filing of the suit for specific performance are that, the tenancy by the plaintiff was accepted but during the tenancy it was alleged that there had been an agreement to sell between the plaintiff and the defendants, therefore the plaintiff filed the suit for specific performance of agreement of sale dated 21-1-81 (Ex.A1). According to the plaintiff, by this agreement the defendants had agreed to sell the suit premises for a consideration of Rs. 26,000/-which was to be paid within one month. Rs. 20,000/- had been paid at the time of the agreement and the balance of Rs. 6,000/-was agreed to be paid within one month and in case of default to pay the balance within one month an interest at the rate of 18% per annum was agreed to be paid by the plaintiff. The plaintiff was already in possession as a tenant and continued to remain in possession. The plaintiff claimed that he had been ready and willing to perform his part of the contract but the defendants were avoiding, therefore a notice was given in reply to which the defendants denied the execution of the agreement. The following issues were framed by the trial Court.
1. Whether the plaintiffs are entitled for recovery of possession of the schedule property from the defendant?
2. Whether the plaintiff is entitled for the amount towards rent?
3. To what relief?
The question raised before us is, whether the trial Court and the learned single Judge were right in allowing the suit and decreeing the suit for specific performance in view of the fact that the agreement was not proved. It was further contended by the learned Counsel appearing for the appellants-defendants that, even if it is assumed that the agreement was proved, it had not been proved that the plaintiff was ready and willing to perform his part of the contract. He attacked the agreement on various grounds and he also submitted that there was sufficient evidence to show that the plaintiff was not continuously willing and ready to perform his part of the contract. On the other hand, the learned Counsel appearing for the respondent-plaintiff submits that the agreement has been proved and willingness and readiness of the plaintiff has also been proved.
4. Now, in the light of these contentions it becomes necessary to deal with the arguments as advanced by the respective Counsels for the parties. The genuineness of the document is assailed by the learned Counsel for the appellants-defendants on the following grounds. One, that when the suit was filed by the defendants against the plaintiff for his eviction, the plaintiff filed a written statement in the eviction suit but along with this written statement though he pleaded an agreement of sale but the agreement of sale was not produced along with the written statement. Secondly he contended that the signature on the document had been disputed and denied by the defendants, it was sent to the handwriting expert but this evidence was brushed aside by the learned trial Court and the learned single Judge illegally. Thirdly, he contended that the agreement of sale purported to have been executed by the defendants was written on a white paper which raise serious doubts about its genuineness.
5. Elaborating on these arguments, the learned Counsel submitted that they had filed an application under the Rent Control Act which was dismissed on 27th September, 1980 on the ground that the Court had no jurisdiction therefore the defendants filed a regular suit after issuing a notice to the plaintiff. This notice was issued on 15-12-80. No reply was given to the notice by the plaintiff and the suit was filed in February, 1981 after expiry of the time granted in notice. Written statement in that case was filed on 4-12-1981. He has drawn our attention to paragraph 4 of the written statement in which agreement of sale dated 21-10-1981 was pressed into service, but this agreement was not produced as is required under the provisions of the Civil Procedure Code. He contends that since the agreement was pleaded but the agreement was not produced in the Court, it creates serious doubts about the existence of this agreement even on the date when the written statement was filed i.e., on 4-12-81. He submits that, as a matter of fact this agreement had been got prepared by forgery after 4-12-81. Had the agreement been in existence it would have certainly been placed before the Court as was required under the provisions of Code of Civil Procedure. The learned Counsel for the respondent-plaintiff on the other hand submits that though it is a requirement to produce the document under the amended CPC at the time of filing of the written statement, yet, a party is not debarred from producing the document at a subsequent stage and in any case the defendants had only filed a suit of eviction on the basis of determination of tenancy it was not necessary for him to produce the agreement of sale Ex.A1 at that stage. There are provisions in C.P.C which allow a party to produce the document on which he relies even after filing of the written statement with leave of the Court and the leave of the Court is granted by the Courts on being satisfied as to why the document was not produced at the time of filing of the written statement. The fact that the document was not produced before the Court at the time of filing of the written statement in itself may not be sufficient to conclude that the document was not at all in existence on the date of filing of the written statement but it certainly creates serious doubts about the existence of the document, particularly when there are other grounds agitated by the learned Counsel for the appellants-defendants with regard to genuineness of the document.
6. Be it as it may, let us examine the second ground of attack made by the learned Counsel for the appellants-defendants that this agreement was written on a white paper. This document has been proved by the scribe. Scribe is PW3. He stated that 10 years back he had drafted the sale agreement in favour of the plaintiff executed by defendants 1 to 3. Second defendant had given him instructions for drafting the sale agreement. When he was at Repalle Sub-Registrar's office he was called by 2nd defendant to the house of the plaintiff where the sale agreement was executed. P.W.2 attested the said sale agreement. He exhibited the document as Ex.A1. The site along with the shed was agreed to be sold for Rs. 26,000/-. The parties had also agreed that the balance should be paid within one month and in case of failure the amount would carry an interest of 18% per annum. The sale agreement was read over, defendants 1,2 and 3 had signed on Ex.Al in his presence and in presence of attesting witnesses. In his cross-examination he stated that he was 72 years of age and he was continuing with the profession of writing documents. His native place was Pedabrolu. He drafted the documents relating to offices of Sub-Registrar of Pedabrolu, Repalle, Kallur, Tenali and Guntur. He was in the profession of document writing from 1938. He worked as Teacher from 1935 to 1958. Prior to writing of Ex.A1 Galiga Rao was not known to him. He did not know elder brother who was working as Teacher in Pedabrolu. He had never during his career drafted any document relating to the persons belonging to Sajjavari palem. Polisetti, Papanaiah of Sajjavari palem were not known to him. Sajjavaripalem was 5 or 6 miles away from Repalle. It was within the jurisdiction of Repalle Sub-Registrar. Prior to Ex.A1 he had never drafted any document for the plaintiff or for the defendant. He did not know for what purpose he had visited Repalle on that day. He maintains a register of documents drafted by him. He had no prior acquaintance with 2nd defendant. He met him at Sub-Registrar's office at Repatle and enquired whether he would draft the sale agreement. He answered him in the affirmative. He asked him to come to the suit property for drafting the sale agreement. The witness advised defendant No.2 to obtain a non-judicial stamp worth Rs.3/- but he told him that it was not necessary. Inspite of his advice he did not get non-judicial stamp paper. He could identify the 2nd defendant but he could not identify defendants 1 and 3 as he had not seen them for 10 years. He had no acquaintance with the plaintiff as well.
7. Now, this document writer had an experience of about more than 45 years, but he drafted a document on a plain paper. It is common knowledge that when a document is written, parties prefer a document writer or advocate who is known to either of the parties or both of the parties. If there are parties to whom no document writer or advocate is known, still they prefer to engage a document writer or, advocate through some one to whom some document writer or advocate is known. It looks quite unbelievable that defendant No.2 goes to the Registrar's office picks up a man and gets him to his house for writing a document. On its own also it might not result in believing that the document was sham but when the document writer with 45 years experience drafts a document on a plain paper and the document being not only the agreement to sell but also receipt for an amount of Rs. 20,000/- it becomes highly improbable that such thing would have happened. Therefore, this circumstance should have been taken into consideration in coming to the conclusion whether the document was genuine. One could assume innocence if the document had not been written by an experienced professional.
8. We agree with the learned Counsel for the appellants-defendants that when these two circumstances were there the first circumstance being that the document was not presented in the Court when the written statement was filed in OS No. 42/87 and the second circumstance being that the document was alleged to have been written by a document writer with 45 years experience on a white paper, the evidence of the expert could have not been brushed aside. The expert was of the firm opinion that the signatures were not of the defendants. It is true that any handwriting expert's opinion could not be final but when the opinion was emphatic that the signatures were not of the defendants coupled with the circumstances mentioned above, this evidence assumes importance. However, the learned Counsel for the parties have relied on various judgments on mis question. The learned Counsel Mr. Veerabhadraiah appearing for the respondent submits that it has been the consistent view of the Courts that when there is direct evidence to prove a document. Court need not refer to and rely upon opinion of expert. In this connection he referred to In re Venkat Row, ILR 36 Mad. 159, R. Kameswara Rao v. B. Suryaprakasa Rao, , Bhagwan Kaur v. M.K. Sharma, and State of Delhi (Admn.) v. Pali Ram, . We are not quoting passages from these Judgments because there is no quarrel with the principles enunciated by the learned Counsel for the respondent, however a brief reference has to be given to Pali Ram's case (supra). In para-30 of the judgment the Supreme Court held:
|"It is not the province of the expert to act as Judge or Jury. As rightly pointed out in Titili v. Jones, ILR 56 All. 428 = AIR 1934 All 273, the real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to the conclusion, so that the Court, although not an expert, may form its own judgment by its own observation of those materials. Ordinarily, it is not proper for the Court to ask the expert to give his finding upon any of the issues, whether of law or fact, because strictly speaking, such issues are for the Court or jury to determine. The handwriting expert's function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. The Court should then compare the hand writings with its own eyes for a proper assessment of the value of the total evidence."
9. Now, from the observations made by the Supreme Court another judgment R. Kameswara Rao v. B. Suryaprakasa Rao (supra) need not be mentioned. In this judgment the Division Bench of this Court held that, opinion of the expert is no doubt admissible under Section 45 of the Evidence Act but what value has to be given to an opinion in a given case is altogether a different matter. It further held that expert's opinion in cases of handwriting must always be received with great caution. The judgment further held that there can certainly be cases where handwriting expert's opinion may be of assistance to the Court in coming to the conclusion as to the genuineness of the disputed handwriting but the art of forming opinion by comparison of hand writing is essentially empirical in character and error is always possible, however, where there is direct and trustworthy evidence of persons who had actually seen the signing of the document by the executor it may not be necessary to refer to or rely on the expert's opinion. In view of these two judgments, we are of the view that where there is credible, trustworthy and direct evidence that an executant had executed a document an expert's view need not at all be taken into consideration, but where there are serious doubts about the trustworthiness and credibility of the direct witnesses the evidence of expert assumes importance. The expert was examined in this case. He gave a detailed report as to what was the method and what were the reasons by which he came to his opinion with regard to comparison of signatures, but the expert was not even cross-examined. About the credibility of the scribe, we have already maintained that his evidence could not be accepted. We have given our reasons for not accepting the evidence of the scribe. When the evidence of the scribe and the attesting witnesses becomes doubtful the evidence of the expert becomes important. For these reasons, we do not agree either with the trial Court or with the learned single Judge in holding that the document was genuine.
10. We would have allowed these appeals on this ground alone, but the next question raised is much more important and is likely to effect the cases in future. Therefore, we are adverting ourselves to the second contention raised by the learned Counsel for the appellant-defendant. The contention is that the suit for specific performance was filed by the plaintiff-respondent informa pauperis. It is interesting to note the averments made in the plaint. The suit was filed on the last date of limitation by the plaintiff. In para-8 of the plaint the plaintiff stated; "The suit is filed informa pauperis as the plaintiff is an indigent person having no capacity to pay the Court fee and having no property worth mentioning except the property described in the schedules B attached in the plaint. The plaintiff has no saleable interest in the 1st item of the schedule B as it is a Government grant of poramboke not alienable by the plaintiff. The plaintiffs has not alienated any property within six months before the suit." The learned Counsel for the appellants-defendants submits that the requirement of Section 16(c) of the Specific Relief Act is that the plaintiff must always be continuously ready and willing to perform his part of the contract. Admittedly on the date of filing of the suit the plaintiff was a pauper and as such no evidence was needed to be led by the defendants to show that the plaintiff was not ready and willing to perform his part of the contract. According to the learned Counsel the readiness and willingness includes capacity to pay. Explanation-1 to Rule-1 of Order 33 CPC defines an indigent person as:
(a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or
(b) where no such fees is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject matter of the suit."
So, in view of this definition the learned Counsel for the appellants-defendants submits that since the capacity shows the readiness in terms of Section 16(c) of Specific Relief Act therefore when a suit is filed informa pauperis for a specific performance of sale and admittedly there is an outstanding amount of consideration the suit should be dismissed. On the other hand, the learned Counsel appearing for the respondent-plaintiff submits that if a person temporarily looses his capacity to pay that should not be a ground to hold that the person had no capacity and was not ready to perform his part of the contract. We are not satisfied with this explanation but however the learned Counsel for the respondent has relied upon various judgments of this Court as well as the judgment of the Apex Court. These judgments have also been relied upon by the learned single Judge. He referred to S. Indira v. N. Venkataramanna, 1996 (3) ALD 548 (DB), Nathu Singh v. Jagdish Singh, and Surya Narain Upadhyaya v. Ram Roop Pandey, . All these three judgments relate to deficit payment of Court fee. The suits were filed with deficit Court fee and a plea was taken that since the plaintiff was not even in a position to pay the Court fee therefore he had not the capacity to pay the consideration amount therefore it should be taken that the plaintiff was not ready and willing to perform his part of the contract. The case in Surya Narain Upadhyaya v. Ram Roop Pandey (supra) was a case in which the High Court of Allahabad reversed the judgment and decree of specific performance and dismissed the suit on the ground that the appellant had not paid sufficient Court fee on the date of presenting the file and the deficit was not made good for some time and an inference was drawn that the appellant had no capacity to pay the consideration and therefore not willing to perform his part of the contract. The Supreme Court rejected this contention and held:
"We are wholly unable to subscribe to the views expressed by the High Court. Section 16 of the Specific Relief Act, 1963 mandates the plaintiff to aver in the plaint and establish as a fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. The failure thereof is fatal to maintain the suit and entails with its dismissal. It is seen that the appellant has specifically pleaded in his plaint that he has been ready and willing to perform his part of the contract.
He also further stated that he was ready to deposit the balance consideration of Rs. 9,000/- and get the sale deed executed and registered in his favour in terms of the contract. The High Court also found that the appellant had deposited Rs. 9,000/-within the time allowed by the trial Court and the suit was decreed. That would clearly show that the appellant had the capacity to pay the balance consideration and he was always ready and willing to perform his part of the contract."
The other judgments also dealt with the deficiency of Court fee. In the present case, the learned single Judge relying on these judgments came to the conclusion that it could not be assumed that the plaintiff had no capacity because he had filed a suit informa pauperis. Most respectfully, we do not agree with the views of the learned single Judge. Payment of deficit Court fee can be result of number of reasons. Suppose there is a last date for filing a suit and the plaintiff has sufficient money in a Bank and there is Bank holiday he is not able to arrange the money for paying the Court fee and file the suit with deficit Court fee or while coming to the Court along with the Court fee he looses the money and he has to file the suit as it is the last date of filing the suit. There can be number of reasons for filing the suit with deficit Court fee. It can even be a reason of wrong calculations that a suit is filed with deficit Court fee. Therefore, the Supreme Court, this Court as well as Allahabad High Court were right in holding that filing of a suit with deficit Court fee cannot be in itself a reason to believe that the plaintiff had not capacity to pay the amount of consideration. We accept this principle as there cannot be any quarrel with this principle. But, we are also of the view that even the filing of suit with deficit Court fee some times can be a factor for examining the capacity of the plaintiff. The filing of suit with deficit Court fee per se may not unsuit the plaintiff but if the defendant shows that sufficient Court fee was not paid because of the incapacity of the plaintiff the suit can be dismissed. But, the suit filed informa pauperis is altogether different spice. We have quoted Explanation-1 to Rule 1 of Order 33. The plaintiff wants to get a declaration that he is a pauper and pauper has been defined in Explanation-I to Rule 1 of Order 33. He comes forward with a plea that he had no capacity to pay even the Court fee. In this case, admittedly balance of Rs. 6,000/- was to be paid towards consideration but the plaintiff in his plaint submitted that he cannot pay the Court fee of Rs. 1,600/- because of incapacity to pay. He claimed that he had no property of his own except the suit property. He claimed that he had no income. Therefore, this is a conclusive proof of incapacity to pay of the plaintiff. Therefore, we hold that the suit filed for specific performance of contract of sale informa pauperis can be dismissed on this ground alone provided part of consideration is yet to be paid. The position could be different if whole of the consideration amount had been paid to the defendant but once it is admitted that part of consideration is yet to paid and it is also admitted that the plaintiff is a pauper it cannot be held that the plaintiff was ready and willing to perform his part of the contract.
11. The contention of the learned Counsel for the respondent does not appeal us that the Court fee had been paid during the enquiry proceedings in the application seeking permission to file suit informa pauperis. The subsequent payment of fee by the plaintiff would not in any way show that at the time of filing of the suit till the Court fee was finally paid the plaintiff was having capacity to pay and as such ready to perform his part of the contract.
12. Seeing this case from a different angle, let us assume, on the date when the plaintiff filed the suit defendants approaches him and asks him to execute the sale deed what would have been the answer of the plaintiff. He had no capacity to pay. Therefore, we are of the view that once a suit is filed informa pauperis for a decree of specific performance of an agreement of sale when part of consideration is yet to be paid the suit is not maintainable. The learned Counsel for the appellant has drawn our attention to various judgments of Supreme Court and High Courts where it has been held that readiness and willingness must be continuous. It must be continuous from the date of agreement till the date of decree. He also has drawn our attention to the law relating to capacity to pay vis-a-vis readiness and willingness. In this case we only refer to two judgments of the Supreme Court on which much reliance has been placed by the learned Counsel for the appellant-defendant. One is Jugraj Singh v. Raj Singh, AIR 1995 SC 945 and the other is Gomathmayaam Pillai v. Palaniswami Nadar, . Jugraj Singh's case (supra) relies on the judgment of Gomathinayagam Pillai's case (supra). In para-6 of judgment in Gomathinayagam Pillai's case the Supreme Court referred to a judgment of Privy Council in Ardeshir H. Mama v. Flora Sassoon, AIR 1928 PC 208, with approval.
13. Viewed the facts of the present case from a different angle, the plaintiff has said that he was ready and willing to perform his part of the contract but at the same time he applied for a direction to declare him informa pauperis. Therefore, he has contradicted his assertion of being ready and willing to perform his part of the contract which is the requirement under Section 16(c) of the Specific Relief Act.
14. There were certain other pleas raised by the learned Counsel for the appellants but since we have held that the appeal can be disposed on the grounds mentioned herein above, we allow these appeals, set aside the judgment of the trial Court as well as the learned single Judge. We were told at the Bar that an amount of Rs. 6,000/- was deposited by the plaintiff before the Court below, that amount may be refunded to the plaintiff.
15. Both the Courts did not discuss any evidence with regard to the suit filed by the appellants-defendants terminating the tenancy. Though it was stated at the Bar that the evidence was recorded with regard to this issue also but since the suit for specific performance was allowed, neither the trial Court nor the learned single Judge decided that case on merits. Now that by virtue of this judgment the suit for specific performance gets dismissed, the suit for eviction filed by the appellant has to be decided on merits. Therefore, we direct the learned trial Court to hear the parties and decide the suit in accordance with the merits. Since the matters have been pending in various Courts for a long time the suit shall be decided within a period of six months from the date of receipt of copy of this judgment.