Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 938 (PNJ)

Kamlesh Saini v. Girdhari Lal

2008-04-29

RAKESH KUMAR JAIN

body2008
Judgment 1. Defendant Nos. 1, 4, 5 and 6 have preferred this appeal against the judgment and decree of the First Appellate Court dated 29-3-1985 vide which the plaintiff has been granted decree for the recovery of Rs. 20,000/- with costs throughout against defendant Nos. 1, 2, 4, 5 and 6 with a condition that the decretal amount shall be paid within one year failing which, the property mentioned in agreement Mark A shall be put to sale. 2. Plaintiff Girdhari Lal had filed the present suit on 4-1-1982 seeking a decree for specific performance of the agreement, alleged to have been entered into by Khushi Ram, predecessor-in-interest of the defendants/appellants on 22-11-1963 to sell 1/6th share out of land measuring 107 Kanals 13 Marias situated in village Bharth, which comes to approximately 18 Kanals and a house marked as ABCD fully detailed in the site plan situated in village Bharth as Khushi Ram, predecessor-in-interest of the defendants-appellants had received Rs. 20,000/- from the plaintiff and agreed to return the same in annual instalments of Rs. 1000/-with interest @ 6% p.a. payable w.e.f. the year 1964 with the last instalment amounting to Rs. 3000/- payable at the end of December 1981. It was alleged that in the event of default, the plaintiff was entitled to effect the sale of 18 Kanals of land and residential house in his name and that right could be enforced through Court of law, which shall be binding upon the heirs of Khushi Ram as well. It was further alleged that Khushi Ram had failed to make payment in terms of the said agreement and had, in fact, not paid even a single instalment. It was further alleged that the cause of action had arisen on last day of December 1981 i.e. 31-12-1981, in terms of the agreement when the last instalment was to be paid but the defendants had failed to pay the same. 3. Defendant Nos. 1 and 4 to 6 entered defence by filing written statement in which it was alleged that the suit is not within time and is also not maintainable in the present form. 3. Defendant Nos. 1 and 4 to 6 entered defence by filing written statement in which it was alleged that the suit is not within time and is also not maintainable in the present form. It was alleged that the suit is collusive between the plaintiff and defendant No. 3 who has been wrongly described to be son of Khushi Ram with an ulterior motive to get the property of the other defendants devolved upon them on the death of Khushi Ram as defendant No. 3 has no concern or connection with them being son of Brij Lal. Defendants have denied the agreement alleging it to be false and fabricated. 4. The plaintiff filed replication in which the averments in the written statement were denied and that of the plaint were reiterated. 5. On the basis of the pleadings of the parties, trial Court framed the following issues : 1. Whether Shri Khushi Ram predecessor-in-interest of the defendants entered into an agreement with the plaintiff on 22-11-1983 to sell the land in dispute? OPP. 2. Whether the plaintiff was ready and willing to perform his part of contract? OPP. 3. If issue No. 2 is proved whether the plaintiff is entitled to the recovery of Rs. 20,000/- in alternative? OPP. 4. Whether the suit is collusive (sic-exclusive) with defendant No. 3. If so, its effect? OPD. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD. 7. Whether the suit is time barred? OPD. 8. Relief. 6. Both the parties led oral as well as documentary evidence. The document which was alleged as an agreement, was placed on Rule 17, C. P. C. alleging therein that the document dated 22-11-1963 though fully proved has not been marked as an exhibit only for the reason that it does not bear the proper stamp, therefore, it was prayed that the stamp be assessed/penalty be imposed and the document be marked and be read in evidence as such. It was further alleged that the document purports to be an agreement to sell. That application was contested by the defendants and it was submitted that the application lacks bona fide, it is not in confirmation with the provisions of law and procedure and is also not supported by an affidavit. It was further alleged that the document purports to be an agreement to sell. That application was contested by the defendants and it was submitted that the application lacks bona fide, it is not in confirmation with the provisions of law and procedure and is also not supported by an affidavit. Moreover, it was asserted that the same has been filed after the final arguments had been addressed by the parties. The trial Court vide order dated 12-1-1984, allowed the application by a detailed order and held that the same will be read into evidence as Ex. PA instead of mark A because execution is proved but simultaneously, it was also held that the document is simply and purely an alleged transaction of loan of Rs. 20,000/-and it is merely an alleged receipt of the payment of Rs. 20,000/- of the loan advanced by Khushi Ram. It was also held that from a plain reading of the document, it is not an agreement to sell. On the same day i.e. 12-1-1984 the trial Court dismissed the suit in which while deciding issue No. 7 recorded the following finding : "I have already held that the writing Ex. PA is a pro-note. The pro-note was executed on 22-11-63 and the present suit was filed on 5-1-82. The limitation for recovery of loan on the basis of pro-note is three years according to the Indian Limitation Act, 1963 . The present suit has been filed admittedly after the lapse of about 20 years also. This suit is clearly time barred. The limitation cannot be postponed by an agreement until and unless a valid acknowledgment within the period of limitation is given. Moreover, I have already held that the writing is a forged one and is not a genuine one. No claim on the basis of forged writing can be enforced. This issue is decided in favour of the defendants and against the plaintiff." 7. The plaintiff filed the first appeal which was allowed on 29-3-1985 in which it was held that the writing Mark A or Ex. PA is not a pro-note but an agreement. 8. Sh. S.D. Sharma, Sr. This issue is decided in favour of the defendants and against the plaintiff." 7. The plaintiff filed the first appeal which was allowed on 29-3-1985 in which it was held that the writing Mark A or Ex. PA is not a pro-note but an agreement. 8. Sh. S.D. Sharma, Sr. Advocate has argued that the finding recorded on issue No. 7 whereby the suit has been held to be barred by limitation has not been specifically reversed by the first Appellate Court and also that the detailed finding recorded by the trial Court, while deciding the nature of document Ex. PA as a pro-note, has been reversed by the first Appellate Court without assigning any reason much less cogent, therefore, counsel for the appellant has raised following substantial questions of law : (i) Whether the lower Appellate Court has misread both oral as well as documentary evidence? (ii) Whether the suit of the plaintiff-respondent was barred by limitation and the lower Appellate Court reversed the finding without assigning any cogent reasons? 9. I have heard counsel for the appellant and have perused the record. No one has put in appearance on behalf of the respondents despite service. There is no dispute that by virtue of a separate order dated 12-1-1984, while deciding application filed by the plaintiff under Order 18, Rule 17, C. P. C., the trial Court had held that the document mark A has been proved and should have been exhibited as Ex. PA but it was also held that the said document is only a receipt of the loan of Rs. 20,000/- and is not an agreement at all. It is an admitted fact that the said order dated 12-1-1984 was passed on the same day when the suit was dismissed but interim order was not challenged by the plaintiff before the first Appellate Court. However, in para 11 of its judgment, the first Appellate Court has simply mentioned that writing mark A is not a pronote but an agreement to sell. Since the finding recorded in para 11 with regard to the nature of the document is without any reason, in my view, the same cannot be sustained and the document Ex. However, in para 11 of its judgment, the first Appellate Court has simply mentioned that writing mark A is not a pronote but an agreement to sell. Since the finding recorded in para 11 with regard to the nature of the document is without any reason, in my view, the same cannot be sustained and the document Ex. PA which has already been declared by the trial Court to be a pro-note cannot be made the basis for filing a suit for specific performance in which the first Appellate Court has granted the decree for recovery of money because in case of suit for recovery on the basis of pro-note, the period of limitation is three years whereas the present suit has been filed, admittedly after a lapse of about 20 years which is clearly time barred. Since the first Appellate Court has held that the document Ex. PA is an agreement, therefore, it has also held that suit has been rightly filed on 4-1-1982 as the last instalment was to be paid up to December, 1981 but the first Appellate Court assigned no reason while holding the document Ex. PA to be an agreement. Since the first Appellate Court has reversed finding on issue No. 7 recorded by the trial Court, it was required from it to record a firm finding of fact about the nature of the document on the basis of evidence produced by the parties and should have also set aside the order dated 12-1-1984 passed by the trial Court on the interim application in which status of the document was established to be a pro-note. Therefore, I hold that the question that has been framed by the appellants deserves to be decided in their favour that the suit is time barred and the first Appellate Court has committed an error both on law and facts. There is yet another angle to assess the bona fide of the plaintiff. According to him, the agreement was entered into on 22-11-1963 whereas Khushi Ram has died in the year 1964. He has categorically mentioned in the plaint that no instalment whatsoever was paid to him but nothing has been disclosed as to why the plaintiff remained silent for 18-19 years even after the death of Khushi Ram and did not come forward to file a suit either for recovery or for specific performance. 10. He has categorically mentioned in the plaint that no instalment whatsoever was paid to him but nothing has been disclosed as to why the plaintiff remained silent for 18-19 years even after the death of Khushi Ram and did not come forward to file a suit either for recovery or for specific performance. 10. In view of the above discussion, the present appeal is allowed. Consequently, the judgment and decree of the first Appellate Court is hereby set aside and that of the trial Court is restored with costs through-out.