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2016 DIGILAW 12 (ORI)

Bhagabati Sahoo v. Kalpana Mishra

2016-01-06

K.R.MOHAPATRA

body2016
JUDGMENT : K.R. Mohapatra, J. This appeal is filed assailing the judgment and decree dated 19.05.2011 and 05.07.2011 passed by the learned Civil Judge (Senior Division) Dhenkanal in C.S. No.251 of 2010 dismissing the suit filed by the appellant for specific performance of contract and permanent injunction along with other ancillary relief. 2. Case of the plaintiff in short is that the defendant is the recorded owner in respect the suit land pertaining to Khata No.738/1720, Plot No.1950/4281, Kissam Gharabari, measuring an area of Ac.0.120 decimal in Mouza: Badasathabatia in the district of Dhenkanal. A building having RCC roof is standing over 1400 square feet over the suit land. Since the defendant was in dire need of money she contacted the plaintiff, who happens to be her close acquaintance, for sell of the suit land and the building standing thereon. The plaintiff agreed to the proposal to purchase the same for a consideration of Rs.11.00 lakh. An agreement was also executed between the plaintiff and the defendant and on the date of execution of the agreement defendant received a sum of Rs.8.00 lakh out of the total consideration. The agreement was attested before one Pankaj Lochan Parida, Notary, Dhenkanal who put his seal and signature after the plaintiff, defendant, attesting witnesses as well as the Advocate put their hand on it. On the date of agreement for sale, the defendant handed over the physical possession and key of the building to the plaintiff in presence of the attesting witnesses and neighbour. The defendant also assured the plaintiff to change the electricity supply in the name of the plaintiff after execution of the registered sale deed. Accordingly, the plaintiff along with her family members are residing in the suit premises. There was cordial relationship between the parties till 10.05.2010 on which date, the defendant unreasonably demanded the rest of the consideration money to the tune of Rs.3.00 lakh and threatened the plaintiff to dispossess on failure thereof. Though the plaintiff sought for some time to arrange the money, she did not pay any heed to the request of the plaintiff and contacted another person to alienate the said premises for a consideration of Rs.14.00 lakh. When the intervention of local gentries was also went in vain plaintiff filed the suit for the aforesaid relief. 3. Though the plaintiff sought for some time to arrange the money, she did not pay any heed to the request of the plaintiff and contacted another person to alienate the said premises for a consideration of Rs.14.00 lakh. When the intervention of local gentries was also went in vain plaintiff filed the suit for the aforesaid relief. 3. Defendant filed her written statement along with counter claim under Order 8 Rule 6A, CPC refuting the claim of the plaintiff. The defendant pleaded that the suit was not maintainable as there was no cause of action to file the suit and the plaintiff has fabricated the document to grab the suit property taking advantage of the cordial relationship of the parties. She has also forged the signature of the defendant on the alleged agreement for sale. She has no locus standi to bring the suit for specific performance of contract. She further pleaded that the husband of the plaintiff and the elder brother of the husband of the defendant were close friends and due to such relationship, the plaintiff approached the defendant to stay in the suit house, but the defendant expressed her unwillingness stating that the construction of the house was not complete by then and some minor works were left to be done. However, the plaintiff’s family agreed to adjust with the same and stayed in the suit house as caretaker and to look after the construction of the building to which the defendant could not deny. After staying there for three to four months, the defendant asked them to vacate the house, but the plaintiff and her family members expressed their difficulty and requested to continue to stay in the suit house as tenant on monthly rent of Rs.4,000/- excluding electricity charges for a period of three to four months. However, the plaintiff failed to keep her words and did not pay rent with effect from 01.04.2008. They also started misusing the electricity and on surprise check, it was detected that they had bypassed electricity supply for which penalty was imposed on the defendant. Due to non-payment of dues, the electricity supply was disconnected. Looking at the state of affairs, the defendant requested the plaintiff to vacate the said house, but she went on avoiding on one plea or other and engineered the idea to manufacture the agreement for sale to grab the property. Due to non-payment of dues, the electricity supply was disconnected. Looking at the state of affairs, the defendant requested the plaintiff to vacate the said house, but she went on avoiding on one plea or other and engineered the idea to manufacture the agreement for sale to grab the property. The defendant also specifically denied the allegation of accepting Rs.8.00 lakh towards advance and existence of deed of agreement for sale. Along with the written statement, the defendant also filed a counter claim for eviction of the plaintiff /appellant from the suit house and recovery of the arrear rent. Hence, the defendant prayed for dismissal of the suit and to pass a decree of eviction of the plaintiff and recovery of arrear rent in the counter-claim. No written statement was filed by the plaintiff to the counter-claim. 4. Taking into consideration the rival pleadings of the parties, learned Civil Judge framed as many as six issues, which are extracted hereunder:- “1. Is there any cause of action to file the suit? 2. Whether the suit is maintainable? 3. Whether the suit is hit U/s. 17(1)(i)(a) & 49 of Indian Registration Act., Sec.28 of Stamp Act, Sec.16(C) of the Specific Relief Act and the agreement for sale before Notary is legal? 4. Whether the plaintiff is entitled for recovery of possession of the suit properties and permanent injunction against the defendant? 5. Whether the defendant is entitled for counter claim under Order-8, Rule-6(A) of C.P.C. and eviction of the plaintiff from the suit building and land? 6. To what other reliefs the parties are entitled?” 5. In order to substantiate their respective cases, the plaintiff has examined five witnesses including PW-1, her husband, PW-3, the Notary and PW-4 was the Advocate, who prepared the alleged agreement for sale. She did not examine herself in support of the case. Several documents were also exhibited on behalf of the plaintiff including the Power of Attorney executed by the plaintiff in favour of her husband as Ext.1. On the other hand, the defendant examined herself as DW-1 and did not prefer to rely upon any document in support her case. 6. Considering the rival contentions of the parties and the materials available on record, learned Civil Judge dismissed the suit and allowed the counter-claim in part by directing the plaintiff to vacate the suit building within one month from the date of the order. 6. Considering the rival contentions of the parties and the materials available on record, learned Civil Judge dismissed the suit and allowed the counter-claim in part by directing the plaintiff to vacate the suit building within one month from the date of the order. However, counter-claim with regard to recovery of arrear rent in respect of the suit house was dismissed. Assailing the same, the plaintiff has filed this Appeal and defendant has filed cross-appeal against the impugned judgment and decree. 7. The main contention of learned counsel for the appellant was that the agreement dated 22.12.2008 for sale (Ext.3) was executed in presence of the witnesses and PW-3, the Notary, Dhankanal had attested by putting his seal and signature on Ext.3. The Notary being a statutory authority is authorized to attest the documents and the agreement for sale (Ext.3) is admissible in evidence. He challenges the finding of the learned Civil Judge (Senior Division), Dhenkanal to the effect that no right can be passed to the plaintiff as stamp duty on the document, i.e., Ext.3 was not paid. He further contends that the plaintiff does not claim any title over the suit land by virtue of Ext.3; however there can be no denial to the execution of Ext.3 as it has been attested by the statutory authority, namely, PW-3. Learned counsel for the defendant, on the other hand, submits that authenticity of Ext.3 is seriously doubted as she had never put her signature on Ext.3. The defendant stoutly denied to have signed Ext.3. Learned counsel for the defendant further submits that PW-3, the Notary has not deposed a single word as to who has drafted Ext.3 and what was the contents of the document. On the other hand, PW-3 in his deposition stated that he was not aware of the contents of the document-Ext.3 and he further submitted in his cross-examination that he does not know as to who signed the document before him. None of the witnesses examined on behalf of the plaintiff also explained the contents of the documents. There is no endorsement to the extent that the Ext.3 was read over and explained to the parties. It is the plaintiff who has to prove her case to the hilt on preponderance of probability. As held in the case of Ishwar Bhai C.Patel alias Bachu Bhai Patel Vs. There is no endorsement to the extent that the Ext.3 was read over and explained to the parties. It is the plaintiff who has to prove her case to the hilt on preponderance of probability. As held in the case of Ishwar Bhai C.Patel alias Bachu Bhai Patel Vs. Harihar Behera and another, reported in 1999 (II) OLR (SC) 42 when the plaintiff herself does not enter into the witness box to testify her case without any plausible explanation, adverse inference should be drawn against her. No doubt, PW-1, the husband of the plaintiff and her Power of Attorney, has been examined in support of the case of the plaintiff, but the deposition of the Power of Attorney cannot substitute that of the plaintiff. Power of Attorney can only make statement and depose the facts which are within his knowledge, but he cannot depose in place of the principal. This Court in the case of Trinath Sahu And Anr. vs. Smt. Polaki Sridevi Patro, reported in 2008 (I) OLR 174 held that Power of Attorney cannot depose in place and instead of the principal. He can only lead evidence as a witness on behalf of the principal and depose the facts within his knowledge, which would be admissible in evidence. This view gets support from the decision in the case of Janki Vashdeo Bhojwani v. Indusind Bank Ltd., reported in AIR 2005 SC 439 . Pleadings in paragraph-4 of the plaint clearly discloses that the plaintiff was not ready and willing to execute the sale deed and required some time (6 to 8 months) to arrange the money. Further, the defendant seriously disputed her signature in Ext.3. Defendant also specifically pleaded to that effect in her written statement and counter-claim. In spite of the same, the plaintiff has not made endeavour to send the signature of the handwriting expert to compare the same with her admitted contemporaneous signature. Above all, Ext.3 has not been registered as required under Section 49 of the Indian Registration Act, more particularly when, the plaintiff claimed that she is in possession of the suit property. Learned Civil Judge has vividly discussed the same in the impugned order while answering issue Nos. 3, 4 and 5. Thus, I find no force in the submission of learned counsel for the appellant. 8. Learned Civil Judge has vividly discussed the same in the impugned order while answering issue Nos. 3, 4 and 5. Thus, I find no force in the submission of learned counsel for the appellant. 8. The next contention of learned counsel for the appellant is that the defendant had accepted Rs.8.00 lakh as advance pursuant to the agreement under Ext.3 and the same is reflected in clear terms in Ext.3. Even if the plaintiff is not entitled to a relief of specific performance of contact, she is entitled to get refund of the advance amount of Rs.8.00 lakh paid to the defendant. Drawing attention to proviso to Section 22(2) of the Specific Relief Act, 1963 learned counsel for the appellant submits that even if such a prayer has not been made in the plaint, the Court in its discretion can allow such prayer for grant of relief for the ends of justice. She made a prayer to amend the plaint to that effect and remit the matter back to the learned Civil Judge (Senior Division), Dhenkanal for adjudication. Learned counsel for the respondent, on the other hand, submits that there is no document in support of payment of Rs.8.00 lakh to the defendant. Moreover, when the execution of Ext.3 is disbelieved and the contents of the same has not been properly proved by the plaintiff such a prayer at this stage would amount to patch up lacunae of the plaintiff. As such, the Court should not exercise its discretion as provided under proviso to Section 22(2) of the Specific Relief Act, 1963. 9. On a close scrutiny of the records, it appears that Ext.3 is solitary document which throws some light on payment of Rs.8.00 lakh to the defendant. There is no other supporting document including the money receipt or hand note in support of payment of advance to the defendant. Further, the person (the plaintiff) who alleges payment of advance to the defendant has not been examined. PW-1, the Power of Attorney holder is not competent to depose in that regard. Moreover, no reliance can be placed on Ext.3 for the reason that the same has neither been executed properly nor is it proved as required under law. Thus, it is hard to believe that the plaintiff had in fact paid sum of Rs.8.00 lakh to the defendant and is entitled to get back the same. Moreover, no reliance can be placed on Ext.3 for the reason that the same has neither been executed properly nor is it proved as required under law. Thus, it is hard to believe that the plaintiff had in fact paid sum of Rs.8.00 lakh to the defendant and is entitled to get back the same. In addition to the above, while answering issues 3, 4 and 5, learned Civil Judge has also taken cognizance of the respective pleadings and evidence adduced by the parties and reached at a conclusion that there are discrepancies in the evidence of the witnesses examined on behalf of the plaintiff regarding transaction of Rs.8.00 lakh. When the trial Court has already given a finding disbelieving payment of Rs.8.00 lakh to the defendant, which was not challenged successfully by the plaintiff in this appeal, amendment of the plaint at this stage is not permissible, more particularly in view of proviso to Order 6 Rule 17, CPC. Thus, this Court refuses to exercise its power under the proviso to Section 22(2) of the Specific Relief Act. In that view of the matter, it can be held unhesitatingly that learned Civil Judge has rightly dismissed the suit as the plaintiff is not entitled to any relief. The defendant has filed a cross-objection/appeal under the provision of Order 41 Rule 22, CPC assailing the finding of learned Civil Judge to the effect that she is not entitled to the arrear rent. It is submitted by learned counsel for the defendant-respondent that admittedly the plaintiff is residing over the suit property and it is the specific case of the respondent that the plaintiff has not paid the house rent with effect from 01.04.2008. The plaintiff has not filed any written statement as against counter-claim of the defendant though she was contesting the suit. In that view of the matter, the counterclaim ought to have been allowed in view of the provisions under Order 8 Rule 10, CPC. 10. Learned counsel for the plaintiff-appellant, on the other hand, submits that the defendant has to succeed on the strength of her own case and not at the weakness of her adversary, i.e., appelalnt herein. In that view of the matter, the counterclaim ought to have been allowed in view of the provisions under Order 8 Rule 10, CPC. 10. Learned counsel for the plaintiff-appellant, on the other hand, submits that the defendant has to succeed on the strength of her own case and not at the weakness of her adversary, i.e., appelalnt herein. Even though no written statement was filed to the counter-claim she has to prove the following facts:- (i) The plaintiff was inducted as a tenant; (ii) The date of commencement of such tenancy; (iii) The amount of house rent, if any, as agreed between the parties; (iv) Tenancy was in force till the date of filing of the counter-claim. None of the aforesaid requirements was either pleaded or proved by the defendant. She has not even pleaded the material facts, which would give rise to a complete cause of action for recovery of rent. Thus, she is not entitled to get a decree under Order 8 Rule 10, CPC. In view of the above, the finding of the learned Trial Court needs no interference. 11. On perusal of the written statement and counter-claim it appears that in paragraph 6, the defendant has contended that the plaintiff expressing her difficulty requested to possess the suit house on monthly rent of Rs.4,000/- for three to four months excluding the electricity charges. In spite of the same, the plaintiff failed to pay rent with effect from 01.04.2008. They also started misusing the electricity for which the defendant had to face proceeding for such misuse of electricity. There is no whisper about the date of commencement of the tenancy and determination, if any, of such tenancy. The pleading with regard to the rate of rent as well as the date of non-payment of such rent is also bald and vague, no evidence to support the same has been adduced on behalf of the respondent. Thus, it is very difficult to accept the contention of the defendant to the effect that she is entitled to the arrear rent as claimed in the counter-claim. 12. This Court by order dated 08.10.2012, in Misc. Thus, it is very difficult to accept the contention of the defendant to the effect that she is entitled to the arrear rent as claimed in the counter-claim. 12. This Court by order dated 08.10.2012, in Misc. Case No.156 of 2012 has stayed further proceeding in Execution Case No.8 of 2011 pending in the Court of Civil Judge (Senior Division), Dhenkanal subject to appellant depositing a sum of Rs.50,000/- before the executing Court within a period of four weeks from the date of the order and also to deposit a further sum of Rs.2,000/- per month by 7th of every month. Learned Counsel for the appellant submits that the appellant has deposited Rs.50,000/- and is making payment regularly in compliance of direction of this Court dated 08.10.2012. In view of the discussions made above and more particularly when the plaintiff is occupying the suit house, the amount deposited before the executing Court shall be released in favour of the defendant along with interest accrued thereon. The order of stay of proceedings of Execution Case No.8 of 2011 is vacated herewith. 13. Misc. Case No.142 of 2014 was filed for acceptance of additional evidence, which was directed to be considered at the time of hearing by order dated 05.08.2015, but during the course of hearing, none of the parties press the same. Accordingly, the same stands dismissed. 14. Taking into consideration the aforesaid discussion, this Court is not inclined to interfere with the impugned judgment and confirms the same. Accordingly, the appeal is dismissed subject to the observation and direction made above, but in the circumstances there shall be no order as to cost.