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2012 DIGILAW 271 (MAD)

Parvathiammal v. B. Indira

2012-01-18

G.RAJASURIA

body2012
Judgment :- 1. This appeal is focussed by the defendant as against the judgment and decree dated 28.11.2008 made in O.S.No.305 of 2007 on the file of the Principal District Judge, Tiruvallur. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus: The respondent/plaintiff filed the suit before the trial Court seeking the following reliefs: "(a) To direct the defendant to execute the sale deed in specific performance of the agreement of sale deed dated 14.09.2004 in respect of the suit property in favour of the plaintiff and if the defendant failed to do so this Court may itself be pleased to execute and register the sale deed in favour of the plaintiff for the suit properties; (b) To grant permanent injunction restraining the defendant herein or her men or agents or servants or anybody acting on behalf not to alienate the suit property; and (c) for costs." (extracted as such) 3. The defendant filed the written statement resisting the suit; whereupon issues were framed. 4. During trial, the plaintiff-B.Indira examined herself as P.W.1 along with P.W.2-Balaji and P.W.3-Sampath and marked Exs.A1 to A7. The defendant-Parvathiammal examined herself as D.W.1 and marked Exs.B1 to B6. 5. Ultimately, the trial Court decreed the suit, as against which this appeal has been filed by the defendant on various grounds. 6. The learned counsel for the appellant/defendant would submit that the trial Court should have thoroughly probed into Ex.B5 – the reply notice given by the plaintiff, through her Advocate; on the contrary, the trial Court simply placed reliance on the denial of the plaintiff as though the plaintiff did not instruct the Advocate concerned to give such a notice. The said Advocate was not examined also. If really Ex.B5 turns out to be the notice given by the plaintiff through her lawyer, certainly the plaintiff would not be entitled to specific performance of the agreement to sell. As such, the learned counsel for the appellant/defendant would pray for setting aside the judgment and decree of the trial Court . 7. If really Ex.B5 turns out to be the notice given by the plaintiff through her lawyer, certainly the plaintiff would not be entitled to specific performance of the agreement to sell. As such, the learned counsel for the appellant/defendant would pray for setting aside the judgment and decree of the trial Court . 7. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellant/defendant, the learned counsel for the respondent/plaintiff would advance his arguments thus: The trial Court considering Ex.B5 and also the denial of the plaintiff; and also taking into account the attending circumstances, accepted the contention of the plaintiff that she had not given such notice quite antithetical to what she earlier issued in the form of Ex.A2. If really the plaintiff expressed her desire through Ex.B5 to get back her money alone, then she might not have gone to the extent of filing the suit at all for specific performance. There is no substance as per him, in the contention on the side of the defendant. 8. The point for consideration is as to whether the trial Court was justified in ignoring Ex.B5, by simply placing reliance on the denial of the plaintiff that such Advocate notice was not given by her even though the said Advocate was not summoned and examined as a witness on her side or as a Court witness. 9. The nitty-gritty, the gist and kernel of the indubitable and undeniable facts would run thus: The plaintiff and the defendant entered into an agreement to sell - Ex.A1 dated 14.09.2004, whereby the latter agreed to sell in favour of the former the immovable property described in the schedule of the plaint for a total sale consideration of Rs.7 lakhs and under that agreement, a sum of Rupees fifty thousand was paid by the proposed purchaser in favour of the proposed seller. Subsequently, Ex.A2 notice was sent by the plaintiff to the defendant calling upon the latter to come forward to execute the sale deed. 10. The learned counsel for the defendant would pertinently point out one fact that such Ex.A2 emerged barely six days after the emergence of Ex.A1, even though for performance of the contract three months time was contemplated in the agreement. 10. The learned counsel for the defendant would pertinently point out one fact that such Ex.A2 emerged barely six days after the emergence of Ex.A1, even though for performance of the contract three months time was contemplated in the agreement. As such, according to him, the plaintiff had some scheme in the mind and with that, such a notice was issued so shortly after the emergence of Ex.A1 and in such a case, her denial of issuance of Ex.B5 by her, should have been taken by the trial Court with a pinch of salt, but the trial Court took her denial for gospel truth and simply discarded Ex.B5 which was issued by her Advocate who belongs to the noble profession. The Court itself atleast suo motu should have summoned the concerned Advocate who issued Ex.B5 as a Court witness to bring out the truth. 11. At this juncture, I would like to hold that the trial Court should have atleast summoned the Advocate who issued Ex.B5 as a Court witness to find out the truth. Trite the proposition of law is, every trial is a voyage in which quest for truth is the target. But without giving any finding as to whether the lawyer had actually issued that Ex.B5 on the instructions of the plaintiff or not, the trial Court discarded Ex.B5, wherefore its decision fails to carry conviction with this Court. I am at a loss to understand as to how the trial Court simply ignored Ex.B5 which was purported to have been issued by the Advocate purely on the plea taken by the plaintiff that she did not instruct the Advocate to issue such a notice. 12. I recollect and call up the following decision of the Honble Apex Court reported in (2010) 8 SCC 423 [Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others), an excerpt from which would run thus: 10. ....................."An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple where it was observed as follows: (SCC p.764, para 20) "20. In support of the submission he relied upon a decision of this Court in R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple where it was observed as follows: (SCC p.764, para 20) "20. .....The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as an exhibit, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court." (emphasis in original). 15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded." 13. The Honble Apex Court clearly pointed out leaving no room for doubt that there are two sets of documents. They are one type of documents whose validity could be challenged at any stage, even though they might have been marked without any objection. There are another set of documents which cannot be latter challenged if they were not objected to when evidence was let in and marked as an exhibit. According to the learned counsel for the defendant, Ex.B5 was not challenged specifically even though in the chief examination of P.W.1, it was challenged and disputed. In paragraph 7 of the Chief Examination affidavit of P.W.1, it is stated thus: "7.I submit that I deny the statements made in para 3 of the written statement that plaintiff has expressly given up her right of specific performance in her advocate notice dated 03.02.2005 and sought refund of advance amount only. I deny the statements made in para 6 of the written statement that the defendant has given detailed reply on 21.10.2004 expressing her willingness to execute the sale deed on payment of receipt of balance sale consideration of Rs.6,50,000/- on or before 13.12.2004." 14. P.W.1 was cross examined in that regard by the defendant. I deny the statements made in para 6 of the written statement that the defendant has given detailed reply on 21.10.2004 expressing her willingness to execute the sale deed on payment of receipt of balance sale consideration of Rs.6,50,000/- on or before 13.12.2004." 14. P.W.1 was cross examined in that regard by the defendant. However, D.W.1 was not cross examined on that aspect. Be that as it may, a cumulative reading of the entire evidence would show that during trial, Ex.B5 was under challenge. In such a case, the trial Court should have issued suitable directions in that regard for examining the said Advocate who issued Ex.B5, but that was not done so. It is a common or garden principle of law that best evidence should be secured before the Court. It is one thing to decide on the available evidence, but it is entirely a different thing to decide on sound principles and grounds and it is more so when best evidence could be secured. If a judgment is rendered without taking steps to secure the best evidence even though it could be secured, certainly that should be looked askance at by the trial Court. Bending over backwards, the plaintiff may now try to justify the judgment of the trial Court because it is in her favour, yet justice has to vindicate its cause. In my considered opinion, the trial Court committed serious error in not examining the Advocate as a witness. It is not as though Ex.B5 is an insignificant or pococurante document having no bearing on the ultimate judgment in deciding the lis. It is the contention of the defendant that the plaintiff was interested in getting back her money only and not the property. When such is the specific plea and to that effect alone there is a document in the form of Ex.B5, certainly the trial Court should not have simply bypassed that document by the observation that the denial of Ex.B5 by the plaintiff alone would be sufficient. 15. When such is the specific plea and to that effect alone there is a document in the form of Ex.B5, certainly the trial Court should not have simply bypassed that document by the observation that the denial of Ex.B5 by the plaintiff alone would be sufficient. 15. On balance, a fortiori the judgment and decree of the trial Court has to be set aside and the matter has to be remitted back to the trial Court for summoning the Advocate concerned with Ex.B5 as a Court witness and after examining him and also giving liberty to both sides to cross examine him and also adduce additional evidence, the trial Court is expected to decide the lis comprehensively untrammelled and uninfluenced by any of the observations made by this Court. Accordingly, the judgment and decree of the trial Court are set aside and the matter is remitted back to the trial Court. No costs. 16. Both the parties shall appear before the trial Court on 14.02.2012. 17. On hearing the judgment, the learned counsel for the plaintiff would make an extempore submission that liberty may also be given to the plaintiff to get the plaint amended for incorporating the alternative prayer for refund of the amount so far paid by the plaintiff to the defendant. I am of the view that there could be no objection for carrying out such amendment, because Section 22 of the Specific Relief Act contemplates such a course.