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2011 DIGILAW 2815 (MAD)

V. K. Rajamanicka Mudaliar v. J. Kumar

2011-06-16

V.PERIYA KARUPPIAH

body2011
JUDGMENT :- 1. This revision has been filed against the judgment and decree passed by the lower Appellate Court in A.S.No.36 of 2005 which was filed by the appellant/plaintiff (respondent herein) against the judgment and decree passed by the Trial Court in O.S.No.482 of 2003. 2. The defendants 1 & 2 / respondents in the appeal are the Revision petitioners herein and the plaintiff / appellant is the respondent herein. 3. For convenience sake, the rank of parties before the Trial Court are being maintained in this judgment. 4 The case putforth by the plaintiff before the Trial Court would be thus:- The plaintiff is doing the profession of broker of real estate, and purchase and sale of houses for third parties for the past 30 years. The first defendant is the father-in-law of the second defendant and the third defendant was the owner of the house bearing Door No.97, 3rd Street, S.No.9, Gandhi Nagar, Sevilimedu, Kancheepuram. Defendants 1 and 3 requested the plaintiff several times, to arrange for purchase of a house for the second defendant. Accordingly, the plaintiff arranged the house of the third defendant for sale for 5,50,000/-. At that time all the defendants agreed to pay 2% of sale price i.e. seller and buyer separately. The sale deed was taken in the name of the second defendant by the first defendant. The first defendant was persisting the plaintiff to arrange a house for his son-in-law i.e. the second defendant. Both the first and the second defendants have agreed to pay 2% of the sale price as brokerage. The sale transaction was executed on 05.12.2001 by the third defendant to the second defendant. In all, the defendants agreed to pay Rs.22,000/- to the plaintiff as brokerage commission. The plaintiff submits that there was a completed contract and hence, he is entitled to a sum of Rs.22,000/- from the defendants. Though the plaintiff has been demanding the defendants to pay Rs.22,000/- they are evading. The plaintiff issued notice twice to the defendants. The correct amount is Rs.22,000/- and not Rs.11,000/-. Though the defendants received notice, there was no reply. The third defendant agreed to pay Rs.5,000/-. But the plaintiff was not willing. Hence the suit is filed. Though the plaintiff has been demanding the defendants to pay Rs.22,000/- they are evading. The plaintiff issued notice twice to the defendants. The correct amount is Rs.22,000/- and not Rs.11,000/-. Though the defendants received notice, there was no reply. The third defendant agreed to pay Rs.5,000/-. But the plaintiff was not willing. Hence the suit is filed. 5.The written statement filed by the first defendant and adopted by the second defendant would be as follows:- It is true that the sale deed was executed by the third defendant in favour of the second defendant on 05.12.2001 but the defendants never agreed to pay 2% of the sale price to the plaintiff, i.e. a total sum of Rs.22,000/- as brokerage commission. The second defendant directly purchased the property from the third defendant and hence, the suit is barred by misjoinder of parties. The first and the third defendants are residing in Gandhi Nagar and the first defendant and his son are also stamp vendors, and hence, there was no need for them to engage a house-broker for purchasing a house in the same area. The plaintiff has failed to succeed in purchasing the property to his relatives and with that enmity he has filed this suit. The first and the second defendants never engaged any broker much less the plaintiff to purchase the property of Gandhi Nagar and hence, the claim is unsustainable. The first and the second defendants receive the notice and enquired the same with the plaintiff, who has stated that on the ill-advise of his relative in failing to purchase the property, he issued the false notice and hence, he tendered apology to the defendants and that he will drop the matter and will not proceed further. This is the reason as to why the defendants have not given any reply to the plaintiff. The suit has been filed by the plaintiff only to harass the defendants. Therefore, the suit deserves to be dismissed. 6. The written statement filed by the third defendant would be as follows:- In the written statement filed by the third defendant, he has stated that he never agreed to pay Rs.5,000/- to the plaintiff and there was no written or oral agreement between him and the plaintiff. Therefore, the suit deserves to be dismissed. 6. The written statement filed by the third defendant would be as follows:- In the written statement filed by the third defendant, he has stated that he never agreed to pay Rs.5,000/- to the plaintiff and there was no written or oral agreement between him and the plaintiff. He has further stated that he is an unnecessary party to the suit and since he is not liable to pay any amount to the plaintiff, the suit may be dismissed. 7. The suit filed by the respondent / plaintiff in O.S.No.482 of 2003 was dismissed by the Trial Court and against which the plaintiff preferred appeal before the lower Appellate Court in A.S.No.36 of 2005 and the said Court had set aside the judgment and decree passed by the Trial Court and allowed the appeal and thereby decreed the suit filed by the plaintiff against defendants 1 & 2. The claim against the third defendant was not pressed by the plaintiff and therefore the claim against the third defendant was not decreed. 8. The Trial Court had framed relevant issues and had examined the plaintiff as PW.1 and yet another witness as PW.2 and had admitted Exs.A1 to A7 on the side of the plaintiff and examined the first defendant as DW.1 and had come to the conclusion of dismissing the suit. The aggrieved plaintiff preferred the appeal before the lower Appellate Court in A.S.No.36 of 2005 against the judgment and decree passed by the Trial Court and the said appeal was allowed by holding that the Trial Court erred in dismissing the claim of the plaintiff against the defendants 1 and 2. 9. The aggrieved defendants 1 & 2 had preferred this Revision against the judgment and decree of the lower Appellate Court. 10. Heard Mr.S.Natanarajan, learned counsel for the Revision Petitioners and Mr.Y.Jyothishchander, learned counsel for the respondent. 11. On hearing of the arguments advanced on both sides and on the perusal of the records of the Trial Court and the judgment and decree passed by the Trial Court and the lower Appellate Court, this Court has framed the following points for disposal of the Revision. 1) Whether judgment and decree passed by the lower Appellate Court is liable to be interfered and set aside ? 2) To what relief the revision petitioners are entitled for? 12. 1) Whether judgment and decree passed by the lower Appellate Court is liable to be interfered and set aside ? 2) To what relief the revision petitioners are entitled for? 12. Point No.1: The suit was laid by the plaintiff against all the three defendants for recovery of a sum of Rs.22,000/- as commission for his brokerage work done for the purchase of a house at Gandhi Nagar for a sum of Rs.5,50,000/- from the third defendant to the second defendant and the first defendant is the father-in-law of the second defendant, who had approached the plaintiff on behalf of second defendant to search for a house for being purchased in the name of the second defendant and accordingly the plaintiff had worked as a broker for both the third defendant and the defendants 1 and 2 and negotiated the deal. The further case of the plaintiff would be that the third defendant had already approached him to get an appropriate buyer for his house and he was willing to pay 2% commission on the sale consideration of the said transaction at its achievement and therefore, the plaintiff had approached the defendants 1 and 2 and they had also agreed to pay 2% commission of the sale price for such transaction had it been fulfilled. The plaintiff would further putforth a case that the defendants 1 to 3 had refused to pay the said commission of Rs.22,000/- payable by the third defendant on one part and the defendants 1 and 2 on the other part and therefore, he had to issue a notice to the defendants 1 to 3 and for that the defendants did not reply nor paid the amount. 13. However, the first defendant had denied the engagement of the plaintiff as broker for the purchase of the house from the third defendant in favour of the second defendant and stated that they have directly contacted the third defendant and struck the deal and there was no broker engaged much less the plaintiff for the purchase of the said house property from the third defendant. It is further contended that the plaintiff, who was very much trying to get the property purchased in favour of his relative, had failed in his attempt due to the completion of sale deed by the second defendant with third defendant and enraged upon such failure, he had issued a notice to the defendants and on receipt of such notice, when the defendants 1 and 2 approached the plaintiff, he told them that he sent the notice only upon the instigation of the relative who could not buy the property from the third defendant and he would not take any action against the defendants 1 and 2. The first defendant would also contend that the defendants 1 and 2 are residing in the same area where the third defendant was residing and the first defendant being a stamp vendor had no necessity to approach any broker for concluding the sale with the third defendant and therefore the plaintiff cannot ask for any brokerage from the defendants 1 and 2. 14. The Trial Court had considered and come to the conclusion that the plaintiff did not establish that he acted as a broker for the defendants 1 and 2 and the third defendant for the purchase of the property from the third defendant. It had also accepted the explanation offered by DW.1 (first defendant) that he had approached the plaintiff immediately after the notice and had come to a conclusion that the explanation offered by the first defendant was correct. It had also relied upon the admission of PW.1 (plaintiff) that the defendants approached him immediately after the issuance of notice. However, the lower Appellate Court had come to a different conclusion that the Trial Court was wrong in dismissing the claim for the brokerage of the plaintiff since the first defendant as DW.1 had admitted in his evidence that the plaintiff had demanded the brokerage two or three times from them and since they did not pay the commission, the plaintiff issued a notice and therefore there was a deal in between the defendants 1 and 2 and the plaintiff for payment of the commission at 2%. The lower Appellate Court had also come to a conclusion to disagree with the judgment of the Trial Court since there was an endorsement made by the plaintiff that he is not pressing the claim against the third defendant as he has paid the commission amount to him and therefore, there should be an agreement in between the plaintiff and the defendants 1 and 2 for payment of commission. 15. Now, I have to see whether the reasons given by the lower Appellate Court are exfacie incorrect or perverse and against the provisions of law. In such circumstances only the Revisional Court can interfere with the judgment and decree of the lower Appellate Court. 16. Learned counsel for the revision petitioner would submit in his argument that the plaintiff who had filed the suit must come forward with a consistent case, but his case is self contradictory and therefore, it can not be sustained in law. He would also draw the attention of the Court that the actual sale was concluded for Rs.7,00,000/-, but his demand was made only on Rs.5,50,000/- and if really there was any agreement for brokerage, it should have been for Rs.7,00,000/- and it should not be for Rs.5,50,000/-merely because it was entered in the sale deed. He would further submit in his argument that the plaintiff's case in the plaint was to the effect that he alone contacted the third defendant and the defendants 1 and 2 for bringing out the sale transaction had in between them on the understanding to pay 2% commission to the plaintiff as agreed by them on the completion of the sale deed and therefore, he sued for such payment of Rs.11,000/- from the defendants 1 and 2 and Rs.11,000/- from third defendant being the 2% commission amount for Rs.5,50,000/-, the sale price amount. But in the evidence of PW.2, he would speak to the effect that PW.2 and yet another person namely one Natarajan along with the plaintiff had done the brokerage for completion of the sale deed in between the third defendant and the defendants 1 and 2 and all the three brokers are entitled to get the money to be paid by the defendants 1 to 3. He would also point out at the evidence of PW.2 to that effect. He would also point out at the evidence of PW.2 to that effect. He would further argue that the plaintiff has to either succeed or fail on his own pleadings and cannot rely upon the weakness of the defendants to get his case proved. He would further submit that the pleadings putforth by the plaintiff is quite contrary to his evidence, let in through PW.2 and he would also submit that the alleged agreement for payment of commission at 2% on the sale price was purely oral and it should have been proved through reliable evidence and when it is not satisfying the mind of the Court, the case of the plaintiff must fail. He would also submit that the lower Appellate Court had come to a conclusion without following any basic principles of law, but had come to the conclusion only upon the alleged admission of DW.2, which is not sustainable. He would further submit that the Trial Court had correctly understood the demeanour of the witnesses and had come to the conclusion that the agreement for payment of brokerage is farce and had dismissed the suit and after accepting the explanation of the first defendant, which has to be upheld. 17. However, it has been replied by the Learned counsel for the respondent / plaintiff that the lower Appellate Court is quite correct in accepting the case of the plaintiff through the admissions of DW.2 and the non reply of the notice issued in Ex.A2 would speak volume and there is no reason to interfere with the factual conclusion reached by the first Appellate Court. He would therefore request the court not to interfere with the conclusion reached by the first Appellate Court. 18. On giving utmost consideration of the arguments of both sides, I could see that the suit was filed by the plaintiff in simplicitor for recovery of brokerage of 2% of the sale price from the buyer and the seller. It is purely an oral agreement said to have been entered into between the plaintiff as broker and the defendants 1 and 2, on one hand and and the third defendant, the seller of the property on the other hand. It is purely an oral agreement said to have been entered into between the plaintiff as broker and the defendants 1 and 2, on one hand and and the third defendant, the seller of the property on the other hand. It is no doubt true that the said property was sold by the third defendant / seller to the second defendant / buyer with the help of the first defendant, the father-in-law of the second defendant. 19. The plaintiff is no doubt in a position to establish his case of oral agreement to pay the brokerage. The lower Appellate Court has relied upon the non reply of the notice by the defendants to the plaintiff sent in Ex.A2. However, the Trial Court had accepted the explanation offered by the first defendant for the non-reply of Ex.A2 as correct. Whether such non reply is not material or is a material thing to be considered in the facts and circumstances of the case. According to the plaintiff, he had acted as broker for the defendants 1 and 2 for buying the property and for the third defendant to sell the property for the brokerage of 2% on the sale price amount. He had categorically admitted that the actual sale price of the property dealt with was Rs.7,00,000/-, but he is claiming the commission on Rs.5,50,000/- which was mentioned in the sale deed. The said registration copy of the sale deed is produced as Ex.A2. Admittedly the plaintiff did not sign as one of the witnesses in the said document. According to the plaintiff, the claim against the third defendant was settled and therefore he did not press his claim against third defendant and accordingly, he endorsed in the plaint during the course of trial. If really, there was any agreement for payment of commission with the third defendant and also with the defendants 1 and 2, the plaintiff could have examined the third defendant himself as one of the witnesses on his side. But he had examined one person namely PW.2, whose evidence would show that he along with one Natarajan and plaintiff had brokered the transaction had in between the defendants 1 and 2 and third defendant and all are equally entitled to the commission. The said evidence of PW.2 is directly against the pleadings of the plaintiff. But he had examined one person namely PW.2, whose evidence would show that he along with one Natarajan and plaintiff had brokered the transaction had in between the defendants 1 and 2 and third defendant and all are equally entitled to the commission. The said evidence of PW.2 is directly against the pleadings of the plaintiff. The plaintiff who is venturing upon an oral agreement that he alone brokered transaction and he alone entitled to commission had adduced evidence through PW.2 that PW.2, one Natarajan and the plaintiff are entitled for commission which is contrary to the pleadings and the evidence of the plaintiff as PW.1. 20. It is a settled law that the plaintiff has to stand on his case and he cannot abandon his case and to rely upon the weakness of the defendant to succeed his case. The said principle has been laid down by the Honourable Apex Court in the judgment reported in 1993 Supp (2) Supreme court Cases 560 ( Sri Chand v. Inder) wherein it has been held as follows: "4.....It is not necessary to investigate as to whether or not the defendants had lawfully acquired any subtenancy right under Bhagwani because even if it is held that the defendants had not acquired such subtenancy right, the weakness of the defendants ' case, cannot strengthen the case of the plaintiff who must succeed by establishing his own case. " 21. The said principle has been followed in the judgment of this Court reported in 1997 (3) LW 888 (Palaniswamy Konar ..vs.. Gopala Konar). The relevant paragraph in the said judgment runs as follows:- "32. In this case, plaintiffs did not adduce any evidence regarding adoption. They were satisfied with the so-called admission and agitated the principles of estoppel to get a decree in their favour. When they have no relevance and will not confer title on the plaintiffs, better evidence ought to have been adduced by them. That they have miserably failed. Courts below have not given importance to Ex.B3 judgment. They brushed aside the same as if the plaintiff is not a party. Question No.1 is, therefore, to be found in favour of the appellant. It is further settled law that in a suit for declaration of title, plaintiff has to win or fall on the basis of his evidence, and he cannot rely upon the weakness of the defendant's case." 22. Question No.1 is, therefore, to be found in favour of the appellant. It is further settled law that in a suit for declaration of title, plaintiff has to win or fall on the basis of his evidence, and he cannot rely upon the weakness of the defendant's case." 22. The same principle is also upheld by the Honourable Apex Court in the judgment reported in (1998) 4 S.C.C. 539 (Punjab Urban Planning & Development Authority v. Shiv Saraswati Iron & Steel Re-rolling Mills). The relevant paragraph would run as follows: "10. ..... The plaintiff/appellant must succeed or fail on his own case and cannot take advantage of weakness in the defendant/ respondent's case to get a decree." 23. In the said circumstances, the evidence of PW.2, instead of proving the case of plaintiff, had demolished the case of the plaintiff. The lower Appellate Court did not look into the evidence of PW.2, but had relied upon the weakness of the defendants and had accepted the plaintiff's case which had not been proved at all. Moreover, the lower Appellate Court had even without knowing the fact that an endorsement was made by the plaintiff giving up the claim of plaintiff against third defendant had decreed the suit against third defendant also in favour of the plaintiff. This aspect would go to show that the lower Appellate Court has not applied its mind before interfering with the judgment and decree passed by the trial Court, but had passed its finding purely on surmises and the weakness of the case of the defendants. Therefore, it is a fit case for interfering with the judgment and decree passed by the lower Appellate Court as it is not based on the basic principles of law governing variance of pleadings and proof. 24. For the foregoing discussion, I am of the opinion that the lower Appellate Court ought to have confirmed the judgment and decree passed by the trial Court but miserably failed to pass such an order and therefore it is germane to interfere with the judgment and decree passed by the lower Appellate Court. Accordingly, the judgment and decree passed by the lower Appellate Court are set aside and the judgment and decree passed by the trial Court are restored. 25. In fine, the Revision Petition is ordered. Accordingly, the judgment and decree passed by the lower Appellate Court are set aside and the judgment and decree passed by the trial Court are restored. 25. In fine, the Revision Petition is ordered. The judgment and decree passed by the lower Appellate Court are set aside and the judgment and decree passed by the trial Court are restored. No costs. Consequently, connected Miscellaneous Petition is closed.