Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 673 (HP)

Yash Pal Singh v. Tajinder Kaur

2013-07-18

V.K.SHARMA

body2013
JUDGMENT : V.K. Sharma, J. OMP No.198 of 2013 1. Though this application under Order 41, Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 (in short, CPC), has been moved by the applicant/defendant No.4, seeking permission to bring on record deed of settlement dated 14.12.2004 (Annexure A.1), said to have been executed between him and the non-applicant/plaintiff No.1, yet essentially the prayer in the application is covered under Order 8, Rule 1-A CPC and as such is being dealt with under the latter provision of law, as it is settled that wrong mention of provision of law would not come in the way of the Court to impart substantial justice. 2. The main suit is for grant of a decree for specific performance of agreement of sale dated 14.12.2004, Ext.PW.1/A. The plaintiffs are the proposed vendees under the said agreement. The agreement of sale was executed by the applicant/defendant No.4 in favour of the non-applicants/plaintiffs, as general power of attorney of the non-applicants/defendants No.1 to 3. However, later on the power of attorney was cancelled by the non-applicants/defendants No.1 to 3, who thereafter sold the land in dispute to the non-applicant/ defendant No.5 by way of two sale deeds dated 29.3.2005. 3. It is against the foregoing background that the non-applicants/plaintiffs have filed the suit for specific performance, which is being contested only by the applicant/defendant No.4 and the non-applicant/defendant No.5. The non-applicants/ defendants No.1 to 3 are ex parte. 4. Out of the pleadings on behalf of the contesting parties, the following issues have been settled on 13.3.2007:- 1. Whether the defendants No.1 to 4 executed an agreement of sale dated 14.12.2004 in favour of plaintiffs? OPP. 2. If issue No.1 is proved, whether the plaintiffs have always been ready and willing to perform their part of agreement of sale, as alleged? OPP. 3. Whether the plaintiffs are entitled for the decree of specific performance of agreement dated 14.12.2004? OPP. 4. Whether the plaintiffs have no right to file the present suit and the same not maintainable, as alleged, if so its effect? OPD-5. 5. Whether the suit has been filed by the plaintiffs in collusion with defendants No.1 to 4, as alleged, if so, its effect? OPD-5. 6. Whether defendant No.5 is bona fide purchaser for consideration, as alleged, if so, its effect? OPD-5. 7. Relief. 5. The non-applicants/plaintiffs have already led evidence. OPD-5. 5. Whether the suit has been filed by the plaintiffs in collusion with defendants No.1 to 4, as alleged, if so, its effect? OPD-5. 6. Whether defendant No.5 is bona fide purchaser for consideration, as alleged, if so, its effect? OPD-5. 7. Relief. 5. The non-applicants/plaintiffs have already led evidence. The case is now at the stage of evidence on behalf of the applicant/defendant No.4, which is yet to begin. It is at this stage that the application for bringing on record the aforesaid deed of settlement dated 14.12.2004 has been filed. 6. It shall be pertinent to notice at the very outset that both the agreement of sale and the deed of settlement, annulling the same, were apparently executed on the same very day, that is, 14.12.2004. The deed of settlement, which has been filed along with the application, as Annexure A.1, reads as under: "Deed of settlement This deed of settlement is being executed on this 14th day of December 2004 between:- Yashpal Singh Son of Sh. Rai Singh resident of village Geora, Tehsil Nurpur, Distt. Kangra. .. (hereinafter referred as party No.1) And Gurpal Singh S/o Sh. Harnam Singh resident of Mcleodganj, Tehsil Dharamshala, District Kangra, Himachal Pradesh. ..(hereinafter referred as party No.2) Whereas an agreement to sell dated 14.12.2004 i.e. today is being executed by party No.2 in favour of party No.1 in respect of the land situated at village Mahal Pakka Tyala as attorney of Smt. Tejinder Kaur & Others, the original owners of the land. No consideration amount is being paid by the party No.1 to party No.2 nor this agreement carries any legal force and is being executed by the party No.2 without any intention of selling the land to the party No.1 and as such the party No.1 shall not be filing any civil or criminal proceedings against party No.2 in any Court of law or before any authority on the basis of said agreement to sell under any circumstances, as the same being executed with consent of both the parties so as to wriggle out of the agreement dated 2-11-2004. All the facts regarding the consideration, earnest money, name of the purchasers and date of sale deed are superficially mentioned in the agreement to sell dated 14.12.2004, considering the friendly relationship between the parties to the present deed of settlement. All the facts regarding the consideration, earnest money, name of the purchasers and date of sale deed are superficially mentioned in the agreement to sell dated 14.12.2004, considering the friendly relationship between the parties to the present deed of settlement. This deed of settlement has been signed by both the parties in the presence of witnesses out of their free will and consent and both of them shall remain bound by the same. Executant's Witnesses Party No.1 Sd/- B.D. Gandhi son of Sh. Jai Dev, R/o H.No. 39, Durga Nagar, Rajpura Town, Tehsil Rajpura, Distt. Patiala. Sd/- Party No.2. Jatin Jindal S/o Kaushal Kumar Sd/- Jindal R/o H. No.47, Hem Bagh Colony, Patiala. Sd/-li 7. The prayer for bringing on record the aforesaid deed of settlement dated 14.12.2004, is opposed on behalf of the non-applicants/plaintiffs on three fold grounds. Firstly, that even in case the document is permitted to be taken on record, there is no foundation in the written statement to this effect and it being so, any evidence beyond the pleadings would be liable to be excluded from consideration. In this regard, suffice it to say that the pleadings set up by the applicant/defendant No.4, vide preliminary objection No.1 and paras 3 to 7 on merits by necessary implication indicate that the entire transaction purported to have been entered into vide agreement of sale dated 14.12.2004, was a sham transaction and the non-applicant/plaintiff No.1, who was a friend of the applicant/ defendant No.4 had agreed to treat the same accordingly. Furthermore, issue No.4 also impliedly covers this aspect of the matter. Thus, it cannot be said that there is no foundation in the written statement qua which the aforesaid deed of settlement dated 14.12.2004 can be adduced in evidence by the applicant/defendant No.4. 8. Now while adverting to the second objection that the deed of settlement dated 14.12.2004, cannot be treated to be a valid document at this stage, it appears that this submission has been made only with a view to take an additional ground of contest. 8. Now while adverting to the second objection that the deed of settlement dated 14.12.2004, cannot be treated to be a valid document at this stage, it appears that this submission has been made only with a view to take an additional ground of contest. It goes without saying that taking of deed of settlement dated 14.12.2004 on record at this stage, is simply for the purpose of allowing the applicant/defendant No.4 to produce the same in terms of sub clause (3) of Rule 1-A of Order 8 CPC with leave of the Court and the same shall have to be proved by the applicant/defendant No.4 in accordance with law. 9. As far as the third submission that this Court is precluded from making any observation with regard to there being any foundation having been laid in the written statement for bringing this document on record is concerned, needless to say that when a Court is to return a finding on rival submissions on a point, it is incumbent upon it to meet that point in accordance with law and return a finding on the same. It is in discharge of such obligation that the finding to this effect has been returned. 10. In view of the above, the application is allowed and the applicant/defendant No.4, is permitted to produce the aforesaid deed of settlement dated 14.12.2004 (Annexure A.1) and prove the same in accordance with law. However, since the prayer in this regard has been made at a belated stage, the non-applicant/defendant No.4, is saddled with costs of Rs.2000/- (rupees two thousand only), which be deposited with the H.P. High Court Bar Association within four weeks from today. The application stands disposed of.