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2016 DIGILAW 1416 (MAD)

S. Arjunan v. K. R. Raviselvan

2016-04-01

N.KIRUBAKARAN

body2016
JUDGMENT : N. Kirubakaran, J. 1. The main appeal has been filed by the defendants against the decree and judgment dated 19.11.2011 in O.S. No. 6 of 2009 on the file of the District Judge, Karur. granting the relief of specific performance of the suit property. The facts of the case are as follows: The contention of the first petitioner is that he entered into a sale agreement dated 16.04.2007 with the respondent herein, for a total sale consideration of Rs. 12,75,000/-. The properties are landed properties comprised in various survey numbers. The respondent herein agreed to pay a sum of Rs. 12,51,100/- towards advance and out of which Rs. 11,66,100/- was paid by way of demand draft and Rs. 85,000/- was paid by way of cash. Towards stamp duty, registration charges and balance sale consideration, Rs. 24,000/- was required to be paid at the time of execution of sale. Time for execution of sale deed was fixed at six months. 2. After entering into a sale agreement, the respondent/plaintiff left for USA wherein he has been residing. There was a failure on the part of the first Appellant/first Defendant to execute the sale as per the sale agreement dated 16.4.2007. Hence the respondent/plaintiff issued lawyers notice dated 10.11.2008, calling upon the first appellant to receive the balance sale consideration and complete the sale. The said notice was refused to be received. Therefore, the suit for specific performance of the sale agreement dated 16.4.2007 was filed by the respondent. 3. The first appellant/first defendant denied offering the property for sale to the respondent/plaintiff stating that the sale agreement was a forged one and he never executed the sale agreement and no consideration was passed on. The first appellant is not the absolute owner of the suit property and his two sisters have got shares. 4. It was contended that the petitioner and respondents were trustees of "Madhavi Memorial Trust". Taking advantage of the respondent's acquaintance with the first petitioner, the respondent/plaintiff forged the signature of the 1st petitioner and created the sale agreement. He denied the service of notice on him. Further, it was contended that the respondent/plaintiff and the 1st appellant/1st defendant had dealings for the purchase of Dyeing factory at Karur. The 1st appellant sent $120,000/- dollars for the said transaction. He denied the service of notice on him. Further, it was contended that the respondent/plaintiff and the 1st appellant/1st defendant had dealings for the purchase of Dyeing factory at Karur. The 1st appellant sent $120,000/- dollars for the said transaction. For the said transaction, the respondent/plaintiff expressed his intention to pay the amount due to the 1st appellant by way of demand-draft, directly to the sellers from whom the 1st appellant proposed to purchase the property. The 1st appellant, as power agent of his daughters along with his two sisters sold a portion of the suit property to one S. Jagadeesh and Mr. K. Subramanian, who are second and third appellants herein through a sale deed dated 3.3.2009 for a sum of Rs. 15,00,000/-. 5. The second and third appellants contended that the 1st appellant has no locus standi to execute the suit agreement as an absolute owner; His two sisters had shares in the property; After verifying the title, the appellants 2 and 3 purchased the property and they are in possession of the suit property. 6. The respondent/plaintiff filed a reply statement denying the contents in the written statement. Subsequently the 1st appellant/defendant filed additional written statement denying the reply statement. 7. The Trial Court framed the following issues: 1. Whether the sale agreement entered between the plaintiff and the first defendant on 16.4.2007 is true? 2. Whether the first defendant received Rs. 12,51,100/- as advance in pursuance of the sale agreement dated 16.4.2007 from the plaintiff? 3. Whether the defendants 2 and 3 are bonafide purchasers of the suit property without notice? 4. Whether the plaintiff is entitled to the relief of specific performance? 5. To what relief the plaintiff is entitled to? 8. The plaintiff examined PW. 1 to PW. 5 and marked Exs. A1 to A12 along with Exs. X1 to X4. On the side of the appellants/defendants DW. 1 and DW. 2 were examined and Exs. B1 to B5 were marked. 9. Regarding the issue No. 1, the Trial Court came to the conclusion that the first appellant having signed Ex. A1 had denied the same to evade the completion of sale agreement. Regarding Issue No. 2, the Trial Court found that the 1st appellant/1st defendant received Rs. 12,51,100/- on the date of execution of Ex. A1 sale agreement. 10. 9. Regarding the issue No. 1, the Trial Court came to the conclusion that the first appellant having signed Ex. A1 had denied the same to evade the completion of sale agreement. Regarding Issue No. 2, the Trial Court found that the 1st appellant/1st defendant received Rs. 12,51,100/- on the date of execution of Ex. A1 sale agreement. 10. As far as Issue No. 3, namely, whether the second and third appellants are bona fide purchasers of the suit property without notice, the Trial Court found that Ex. B7, sale deed through which the second and third appellants purchased the property, is hit by doctrine of lis pendent and they are not bona fide purchasers. Regarding the issue No. 4, the Trial Court found that discretionary relief of specific performance has to be given in favour of respondent/plaintiff. 11. Against the said decree of specific performance only the present appeal has been filed. 12. In the appeal suit, M.P. No. 2 of 2012 has been filed by the appellants, seeking permission to the appellants to produce the communication dated 19.01.2012, issued by the Sub-Treasury Officer, Kulihalai as an additional evidence. It is contended by the petitioners that the original stand of the appellants in the written statement is that the sale agreement dated 16.4.2007 has been fabricated by the respondent/plaintiff and no sale consideration was passed on with the first appellant. 13. After the trial court decree, the 1st appellant submitted a petition before the Sub Treasury Officer, Kuzhithalai seeking details about the non-judicial stamp papers on which the sale agreement has been inscribed, as the said stamp paper has been purchased from a stamp vendor at Kuzhithalai on 16.4.2007. The Sub Treasury Officer, Kulithalai sent a reply dated 19.01.2012, wherein it has been stated that the stamp paper bearing specific number as found in the said sale agreement Ex. A1, was received by the Sub-Treasury, Kulithalai on 06.09.2007 from the District Treasury, Karur. Based on that, the 1st appellant/1st petitioner contends that the stamp paper used for inscribing the suit sale agreement dated 16.04.2007, could not have been purchased on 06.09.2007 and therefore, the agreement would not have been executed on the same date. According to the 1st appellant/1st defendant, the communication dated 19.01.2012 is an important piece of evidence and he sought permission to adduce the said document as additional evidence. 14. According to the 1st appellant/1st defendant, the communication dated 19.01.2012 is an important piece of evidence and he sought permission to adduce the said document as additional evidence. 14. A counter affidavit has been filed, denying the allegations. In the counter, it is denied the details obtained under RTI Act from the Sub-Treasury Officer, Kuzhithalai. The respondent also made a representation to the higher officials with regard to the information obtained under the RTI Act and he would file those communications and reply from the higher officials by way of additional counter affidavit. 15. The respondent/plaintiff would contend that the records have been manipulated and he reserves rights to expose falsity of the claim of the appellant. He would further state that the stamp paper dated 16.04.2007 was received only on 06.09.2007 by the Sub-Treasury, Kulithalai is baseless. 16. Heard the parties and perused the records. Though this Court heard the appeal suit, on consideration, it is found that M.P. No. 2 of 2012 filed by the appellant seeking permission to adduce additional evidence namely, the communication dated 19.01.2012 issued by the Sub-Treasury Officer, Kulithalai, has to be decided first before deciding the appeal suit. 17. The entire suit is based on the sale agreement dated 16.04.2007 entered into between the respondent and the 1st appellant in respect of the suit properties. The Trial Court on appreciation of the evidence found that Ex. A1, sale agreement is valid and rejected the contention of the 1st appellant/1st defendant that the sale agreement is forged. After trial court judgment, it is contended by the 1st appellant that he applied under RTI Act to the Sub Treasury Officer, Kulithalai seeking about the details of the non-judicial stamp paper on which the sale agreement was inscribed. RTI information dated 19.01.2012 has also been filed before this Court. 18. The Sub Treasury Officer, Kulithalai in the reply dated 19.01.2012 stated that the stamp paper bearing specific number namely, AA888511 was issued to the Sub-Treasury Officer, Kulithalai from the District Treasury, Karur on 06.09.2007. Based on the said information, the 1st appellant contends that when the Sub-Treasury itself received the stamp papers on 06.09.2007, the said stamp papers would not have been available on 16.4.2007 to enter into the sale agreement between the 1st appellant and the respondent. This Court perused the communication dated 19.01.2012 raised under the RTI Act. Based on the said information, the 1st appellant contends that when the Sub-Treasury itself received the stamp papers on 06.09.2007, the said stamp papers would not have been available on 16.4.2007 to enter into the sale agreement between the 1st appellant and the respondent. This Court perused the communication dated 19.01.2012 raised under the RTI Act. The reply is extracted as follows: xxx xxx xxx 19. The details furnished on 19.01.2012 under the RTI information Act relate to sale agreement dated 16.04.2007 marked as Ex. A1, the 1st petitioner/1st appellant contends that the sale agreement would not have been executed on 16.04.2007 especially when the stamp paper dated 16.04.2007 was received by the treasury only on 06.09.2007. The said contention cannot be ignored, when it goes to the root of the document Ex. A1, provided if the 1st petitioner/1st appellant proves the same as per law. 20. No doubt, the petition has been filed seeking additional evidence. Even in paragraphs 7 and 12 of the counter affidavit, the respondent/plaintiff contended that he already made a representation to the higher officials of the Treasury Office with regard to the information obtained by the 1st appellant/1st defendant under the RTI Act and he sought permission to file additional document as and when he received those documents from the higher officials. 21. As already observed by this Court, the communication dated 19.01.2012 received under the RTI Act with regard to the Stamp Paper by which the sale agreement dated 16.04.2007 was made, is an important document and the details have to be placed before the court. As this Court finds that the details regarding the document are important, the said communication dated 19.01.2012 is an important piece of evidence. Therefore, the matter has to be sent back to the Trial Court only for the purpose of marking the said communication and oral evidence by summoning the officials. Similarly this Court grants opportunity to the respondent/plaintiff to adduce any further evidence in this regard. 22. This Court in Ravichandran and others v. Paramasivam reported in 2014 (1) LW 828 held that when the Court comes to the conclusion that the application filed under Order 41 Rule 27 C.P.C. is to be allowed, the court has to follow the procedure contemplated under Order 41 Rule 28 C.P.C. for recording of additional evidence. Paragraphs 9 and 10 of the judgment are extracted as follows: "9. Paragraphs 9 and 10 of the judgment are extracted as follows: "9. In this regard this Court in "Jayamoorthy and others v. Palani and others" reported in 2013-4-L.W. 405 : (2013) 7 MLJ 471 " has observed as follows:- "13. In addition, as rightly contended by the learned counsel for the appellants, though an application under Order XLI Rule 27 is to be heard along with the appeal, an order dismissing the application can be incorporated in the judgment itself, when the appellate Court decides to dismiss the application. The procedure to be followed in case the appellate court decides to allow such applications shall be different. In such cases, the appellate court has to follow the procedure for taking evidence in the appellate stage. Order XLI Rule 28 deals with the same. The same reads as follows: "28 Mode of taking additional evidence:- Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, take such evidence and to send it when taken to the Appellate Court." 14. There shall be only one circumstance under which the appellate court can mark the documents and proceed with the pronouncement of judgment i.e., in case the parties do not raise objection and they do give their consent for marking the documents produced as additional evidence. In such an event, there shall be no necessity to postpone the further hearing of the appeal and the appellate court can record the same in the order passed in the application under Order 41 Rule 27 and mark those documents by consent as additional evidence, hear further arguments in the appeal in the light of such additional evidence and then proceed with the pronouncement of the judgment in the appeal. In the above judgment, it has been clarified that in case the Appellate Court, after hearing the appeal on merits and the application for adducing additional evidence, comes to the conclusion that the application is liable to be dismissed, the proper course to be adopted by the Appellate Court is to pass an order dismissing the application and at the same; time, pronounce a judgment in the appeal on merits. This can be done in another way by incorporating the order of dismissal of the application in the judgment itself and passing a common order and judgment in the application and the appeal. But when the Court comes to the conclusion that the application filed under Order 41 Rule 27 CPC is to be allowed, the above said procedure cannot be followed and it shall not be desirable, because a once the Court comes to the conclusion that the application for adducing additional evidence is to be allowed, then the Court has to follow the procedure contemplated under Rule 28 CPC for the recording of additional evidence. Without recording additional evidence after allowing the application for adducing additional evidence, pronouncement of judgment in the Appellate Court shall not be possible. There can be only one contingency in which the order allowing the application can be passed and the judgment can be pronounced on the same day. The same is possible when the additional evidence sought to be adduced is only a documentary evidence and the opposite party does not dispute the genuineness and admissibility of the evidence and on the other hand, gives consent for making that document and proceeding with the disposal of the appeal on merits, taking into consideration the additional evidence also. The Court can conveniently mark the evidence by consent and proceed with the pronouncement of the judgment on the same day on which, the application under Order 41 Rule 27 C.P.C. is allowed. This Court hopes that the above said observation regarding the manner in which the application under Order 41 Rule 27 CPC is to be dealt with and under what circumstance the order in such an application can be incorporated in the judgment in the appeal or passed simultaneously while pronouncing the judgment and in what cases the order should be passed separately and the appeal should be postponed for further hearing, will make it amply clear the proposition of law in this regard. 10. Applying the test to the case on hand, this Court is of the view that though the learned lower Appellate Judge could have heard the appeal on merits and thereafter passed an order in the application filed under Order 41 Rule 27 C.P.C. dismissing the said application, there is nothing in the order to indicate that such a consideration of the appeal on merit was made. Nothing prevented the trial Court from incorporating the order of dismissal of the application in the judgment itself or from pronouncing a judgment of the appeal on merits, immediately on pronouncing the order which will indicate that the appeal was heard on merits along with the application and after such hearing the lower Appellate Court decided to dismiss the application. As the Court has not chosen to do it in either way, namely incorporating the order in the judgment or pronouncing judgment simultaneously with the passing of the order, this Court has to infer that the learned lower Appellate Judge had not followed the dictum enunciated in the judgments referred to above. Hence this Court is inclined to accept the contention of the learned counsel for the revision petitioner and set aside the order passed by the learned lower Appellate Judge on 27.02.2012 made in I.A. No. 51 of 2011 in A.S. No. 173 of 2008 dismissing the said Interlocutory Application. This Court is of the view that after setting aside the said order, the said application should be remitted back to the lower Appellate Judge to deal with the same afresh in accordance with the law indicated supra and dispose of the same." 23. From the above, it is clear that for recording additional evidence, this court either on its own may take the evidence or send the matter back to the Trial Court for recording evidence alone. This Court finds that the details sought to be adduced are very important for deciding the matter. Hence, M.P. No. 2 of 2012 to adduce additional evidence is allowed and the matter is sent back to the Trial Court so as to enable the appellants to adduce both oral and documentary evidence with regard to the details as stated in RTI Act communication dated 19.01.2012. The respondent/plaintiff is entitled to cross-examine the witnesses. Similarly., it is also open to the respondent/plaintiff to adduce additional evidence in this regard as stated in paragraphs 7 and 12 of the counter affidavit filed in M.P. No. 2 of 2012, wherein he already sought information from the higher official under RTI Act regarding the details sought to be furnished. 24. The appeal suit is kept pending. The application M.P. No. 2 of 2012 is allowed so as to enable both the parties to adduce evidence as stated above. 24. The appeal suit is kept pending. The application M.P. No. 2 of 2012 is allowed so as to enable both the parties to adduce evidence as stated above. The Trial Court is directed to permit both the parties to adduce evidence. Trial Court is also directed to record the evidence and send back the same to this Hon'ble Court within three months. The matter is sent back only for the purpose of recording evidence as stated above. M.P. No. 2 of 2012 is allowed and No cost.