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2021 DIGILAW 597 (MP)

Bhagwan Sharan v. Krishnakant Bhargava

2021-08-11

RAJEEV KUMAR SHRIVASTAVA

body2021
JUDGMENT : This first appeal under Section 96 of CPC has been filed being aggrieved by the judgment and decree dated 27/7/2009 passed by First Additional District Judge, Dabra, District Gwalior in Civil Suit No.27-A/2008, whereby plaint relating to specific performance of agreement was rejected. 2. The facts in short are that the disputed land is situated at village Dabra Land Survey No.1827 min Survey No.1826/7 min Total Area 22500 Sq. Foot which belongs to respondent No.1 Krishnakant Bhargava. Respondent No.1 agreed to sale the aforesaid land to the plaintiffs for consideration amount of Rs.15,00,000/-(Rs. Fifteen Lakh Only). In pursuant to that, on 05/5/2005, respondent No. 1 received an advance amount of Rs.9,00,000/-(Rs. Nine Lakh Only) from the plaintiffs and executed an agreement to sale and it was also agreed to that the remaining amount shall be given at the time of execution of sale deed. The sale deed was required to be executed on 05/11/2005. It was also made clear that the sale deed shall be executed through the Court and possession shall also be handed over. It was also agreed to that from the date of purchase, the rent accrued against the sold property shall be shifted towards the plaintiffs. Defendant/respondent No.1 had also received one cheque of Rs.1,00,000/-(Rs. One Lakh Only) on 18/5/2005 in pursuant to aforesaid agreement. Though respondent No. 1 had received advance money of Rs.10,00,000/-and remaining consideration amount i.e. Rs.5,00,000/-was to be given at the time of execution of sale deed and the appellants/plaintiffs were anxious to get the sale deed executed by giving the remaining consideration amount but respondent No. 1/defendant kept seeking time for executing the sale deed. Despite various efforts, no sale deed was executed by respondent No.1. Thereafter, one advertisement was published by the plaintiffs in the newspaper on 24/10/2005 informing therein regarding purchase/execution of sale deed of the disputed land in their favour. After the aforesaid notice was published, objection was raised on behalf of Bharat Petroleum Corporation, Bombay vide its letter dated 29/10/2005 to not execute the sale deed rather pleaded that Bharat Petroleum Corporation has the first light to purchase the disputed land. 3. It is submitted by learned counsel for the appellants/plaintiffs that as plaintiffs were ready and willing to give the remaining consideration amount, therefore, the trial Court has wrongly rejected the civil suit filed by the plaintiffs. 3. It is submitted by learned counsel for the appellants/plaintiffs that as plaintiffs were ready and willing to give the remaining consideration amount, therefore, the trial Court has wrongly rejected the civil suit filed by the plaintiffs. The trial Court has rightly decided issue No.1 in favour of the plaintiffs whereby the plea raised by the defendant that the agreement dated 05/5/2005 was forged and fabricated was turned down and also held that Rs.10,00,000/-was given to the defendant. Despite plaintiffs were ready and willing to pay the remaining amount of consideration to get the sale deed executed, respondent No.1 did not execute the sale deed. It is further submitted that the trial Court has wrongly decided that as the disputed land was given on lease to Bharat Petroleum Corporation and without disclosing the aforesaid fact, plaintiffs filed the suit, therefore, discretionary relief cannot be granted to the plaintiffs as they did not come with clean hands before the Court. It is further submitted that Bharat Petroleum Corporation is not the essential party. Earlier, Bharat Petroleum Corporation had not filed any objection till filing of suit, therefore, trial Court has erred in passing the impugned judgment and decree. In support of his submissions, learned counsel for the appellants has placed reliance on the judgments passed by Hon'ble the Apex Court in the cases of Aniglase vs. Ramlatha & Ors., [ (2005) 7 SCC 534 ], Silvey & Ors. vs. Arun and Ors., [ (2008) 11 SCC 45 ], Zarina Siddiqui vs. A. Ramalingam., [ (2015) 1 SCC 705 ] and Syscon Consultants Pvt. Ltd. vs. Primella Sanitary Products Pvt. Ltd. & Anr., [ (2016) 10 SCC 353 ]. 4. Learned counsel for the respondent opposed the submissions made by learned counsel for the appellants and submitted that in para 5 of the plaint, plaintiff has admitted that prior to filing of the suit, he was having knowledge that the disputed property is already on lease with Bharat Petroleum Corporation, Bombay. It is further submitted that as this fact was in the knowledge of the plaintiff, therefore, he was bound to implead Bharat Petroleum Corporation as party in the suit, therefore, the trial Court has rightly passed the impugned judgment and decree in the light of the judgment passed by this Court in the case of Purshottam Das Agarwal v. Prakash Agarwal and Anr., [ 2016 (II) MPWN 132 ]. It is further submitted that the disputed property was given on lease to Bharat Petroleum Corporation up to year 2032. The agreement dated 05/5/2005 produced by the plaintiffs is forged. The trial Court decided issue No.1 contrary to the record and evidence available. This objection was also raised by the defendant before the trial Court in his written statement and present first appeal is the continuation of the civil suit, therefore, without filing the cross-objection, the respondent can question adverse finding recorded by the trial Court. In the light of the judgment passed by Hon'ble the Apex Court in Ravindra Kumar vs. State of Assam, [ AIR 1999 SC 3571 ], respondent No.1 is having right to raise objection before this Court. It is further submitted by learned counsel for the respondent/defendant that under Section 45 of Evidence Act, document Ex.P-1 was examined by the Hand-writing Expert in compliance of the order dated 27/4/2007 passed in WP No.1476/2007 but the Court below did not record the evidence of the Hand-writing Expert. The Hand-writing Expert had given report that signatures over the agreement were forged and fabricated and the Court is having power under Section 73 of Evidence Act to examine the signatures over the documents as observed in the judgment passed by Hon'ble the Apex Court in the case of Thiruvengadam Pillai v. Navaneethammal and Anr., [ (2008) 4 SCC 530 ]. The Court was required to compare the disputed signatures but the Court below erred in not considering the aforesaid request. Hence, the Court below has wrongly decided issue No.1 in favour of the plaintiffs. The Court was required to compare the disputed signatures but the Court below erred in not considering the aforesaid request. Hence, the Court below has wrongly decided issue No.1 in favour of the plaintiffs. It is further submitted that Ex.D-1 to D-14 were produced before the Court below showing that there was some commercial transaction between the parties as mentioned in paragraphs 14 and 15 of the plaint, which is as under:- ^^14& ;g ckr lgh gS fd izn'kZ ih&1 ds lEiknu gksus ds iwoZ gekjs ysu&nsu ds lcaa/k jgs gSa izfroknh dzekad 1 ds lkFk ysA ;g ckr Hkh lgh gS fd tc Hkh izfroknh eq>ls :i;k ysrk Fkk mlds lcaa/k esa eq>s pSd nsRkk Fkk ;g ckr Hkh lgh gS fd :i;k okil gksus ij eSa izfroknh dzeakd 1 dks pSd okil nsrk FkkA 15& izn'kZ ih&1 dk nLrkost fnukad 05-05-2005 ds lEiknu ds djhc 2 eghus igys eSus tehu ns[kh Fkha] >xMs okyh tehu eSus dqy 3&4 ckj vHkh rd ns[kk gksxkA ftl fnu eSus ns[kk Fkk ml le; isVªksy le; iEi yxk gqvk FkkA^^ Petrol pump is running on the disputed land since year 2003, therefore, plaintiff is not entitled to get any equitable relief in the present case as plaintiff had not come before the Court below with clean hand. In the case of Mohammadia Cooperative Building Society Limited vs. Lakshmi Srinivasa Cooperative Building Society Limited & Ors., [ 2008 (IV) MPLJ 401 ], Hon'ble the Apex Court has observed in para No. 43 that “Grant of a decree for specific performance of contract is a discretionary relief. There cannot be any doubt whatsoever that the discretion has to be exercised judiciously and not arbitrarily. But for the said purpose, the conduct of the plaintiff plays an important role. The Courts ordinarily would not grant any relief in favour of the person who approaches the court with a pair of dirty hands.” As Bharat Petroleum Corporation has not been impleaded as party in the suit, therefore, the suit filed by the plaintiff was not maintainable and the Court below has rightly decided the suit filed by the plaintiff. The Courts ordinarily would not grant any relief in favour of the person who approaches the court with a pair of dirty hands.” As Bharat Petroleum Corporation has not been impleaded as party in the suit, therefore, the suit filed by the plaintiff was not maintainable and the Court below has rightly decided the suit filed by the plaintiff. It is further submitted by learned counsel for the respondent that during pendency of this appeal, one suit was filed by respondent No.1 against Bharat Petroleum due to some dispute, which was decided by the trial Court on 30/4/2014 against which F.A. No.101/2014 was filed before this Court. It is further submitted that the aforesaid First Appeal No.101/2014 was disposed of on the basis of compromise arrived at between respondent No. 1 and Bharat Petroleum Corporation. Thereafter, new lease deed of the disputed property was executed in favour of Bharat Petroleum up to 30/1/2040, therefore, Bharat Petroleum Corporation is still having lease over the disputed property and the ground taken by the trial Court while passing the impugned judgment and decree still exists and relevant documents have been filed along with I.A. No.3087/2021, an application under Order 41 rule 27 of CPC filed by respondent No.1 and prayed to take the aforesaid documents on record and to consider the same. 5. Appellants have also filed I.A. No.2907/2018, an application under Order 41 Rule 27 read with Section 151 of CPC for taking additional documents on record. 6. On perusal of record, it is apparent that the parties prayed to file documents which are alleged to be executed after the disposal of the civil suit with a third person, who was not party to the suit, therefore, in view of the abovementioned discussion, it is not appropriate to allow the applications I.A. No. 2907/2018 and I.A. No.3087/2021 filed by the appellants as well as respondent No.1 respectively and are hereby rejected. 7. 7. Perused the impugned judgment and decree dated 27/7/2009 whereby suit filed by the plaintiffs against respondent No.1 has been disposed of by framing following issues:- ^^1& D;k oknhx.k us izfr0dz01 ds LoRo o vkf/kiR; dh xzke Mcjk fLFkr Hkwfe losZ dz-1827 feu losZ dz-1826@7 feu dqy jdok 22500@oxZ QhV fnukad 5-5-05 dks iUnzg yk[k :i;s esa dz; djuk] r; djrs gq;s ukS yk[k :i;s uxn izkIr dj vuqca/k i= fu"ikfnr fd;k gS\ gkWa 2& D;k oknhx.k ls fnukad 18-5-05 dks izfr0dz01 us vuqca/k i= fnukad 5-5-05 ds rgr ,d yk[k :i;s dk pSd dzekad 894318 fnukafdr 18-5-05 ;wukbZVsM oSLVuZ cSda u;k cktkj 'kk[kk y'dj dk izkIr fd;k Fkk\ gkWa 3& D;k mDr vuqca/k i= 'ks"k fodzhr/ku jkf'k oknhx.k ls izfroknh dz-1 }kjk 5-11-05 rd izkIr dj laikfnr fd;k tkuk r; fd;k x;k\ gkWa 4& D;k oknhx.k vuqca/k i= fnukad 5-5-05 dk ikyu djus ds fy;s ges'kk rS;kj ,oa rRij jgs gSa\ gkWa 5& D;k oknhx.k mDr fookfnr Hkwfe dk fodz;i= izfroknh dz-1 }kjk@U;k;ky; }kjk laikfnr djk;s tkus ds vf/kdkjh gS\ ugh 6& D;k oknh us nkos dk mfpr ewY;kadu ugha djrs gq;s vi;kZIr U;k;'kqYd ij okn izLrqr fd;k gS\ gkWa 7& lgk;rk ,oa O;;\^^ 8. The Court below has decided issue Nos. 1, 2, 3 and 4 in favour of the plaintiffs/appellants by deciding that an agreement was executed with regard to disputed property on 05/5/2005 for the consideration of Rs.15,00,000/-, wherein advance money of Rs.9,00,000/-was received by respondent No.1 at the time of execution of agreement. Thereafter, on 18/5/2005, Rs.1,00,000/-was also received by respondent No.1. It has also been decided in favour of the plaintiffs that the defendant was required to execute the sale deed on or before 05/11/2005 by getting the remaining consideration amount and plaintiffs were always ready and willing to pay the remaining consideration amount. However, the Court below has decided that the plaintiffs are not entitled to get the sale deed executed and thereby issue No.5 has been decided against the plaintiffs. 9. On perusal of record, it is apparent that execution of agreement has been proved and it is also proved that the plaintiffs were ready and willing to pay the remaining consideration amount. 10. 9. On perusal of record, it is apparent that execution of agreement has been proved and it is also proved that the plaintiffs were ready and willing to pay the remaining consideration amount. 10. The Court below has observed with regard to issue No. 5 that “plaintiff No. 1 has stated that as per agreement dated 05/5/2005, he was ready and willing to pay the remaining consideration amount to get the sale deed executed. In pursuant to aforesaid, he requested respondent No.1 orally as well as in writing but respondent No. 1 remained reluctant and did not execute the sale deed, therefore, one advertisement was published on 24/10/2005 in a newspaper. On account of that, on 29/10/2005, Bharat Petroleum Corporation, Bombay raised objection and had objected that as Bharat Petroleum Corporation was having lease over the disputed property and had constructed petrol pump over the disputed land, therefore, the suit cannot be decreed. As Bharat Petroleum Corporation is the lessee, therefore, Bharat Petroleum Corporation is having the first right to purchase the disputed land at the market value”. After considering the aforesaid, Court below has observed that the plaintiffs have not come with clean hand, therefore, equitable right cannot be given to the plaintiffs and decided issue No.5 against the plaintiffs. 11. Plaintiff is always “Dominus Litus” means plaintiff is the master of a suit. The person has real interest in the decision of a case. Plaintiff is the person who will be affected by the decision of the case. Plaintiff is the controller of a suit, therefore, he is called “Dominus Litus”. He is not bound to sue against every possible adverse claim in the suit and he may chose to implead only those persons as defendant against whom he wishes to proceed. Therefore, considering the facts and circumstances of the case, it is plaintiffs' sole discretion to make person of their choice as party in the suit. Even if Bharat Petroleum Limited is the lessee over the disputed property, he is not having jurisdiction to raise objection with regard to transfer of property by lawful owner through valid contract. Therefore, considering the facts and circumstances of the case, it is plaintiffs' sole discretion to make person of their choice as party in the suit. Even if Bharat Petroleum Limited is the lessee over the disputed property, he is not having jurisdiction to raise objection with regard to transfer of property by lawful owner through valid contract. If such transaction is done and property is being sold, only the ownership/owner of the property will change but the right of the lessee shall remain intact and the lessee shall be deemed to be the lessee of the purchaser of the land, who becomes the lawful owner of the disputed land. 12. In view of the aforesaid discussions, this Court comes to the conclusion that the finding given by the Court below with regard to issue No.5 is perverse and is hereby set aside. Respondent No.1 is hereby directed to execute the sale deed in favour of the plaintiff(s) within 60 days from the date of payment of remaining consideration amount. This first appeal is disposed of in above terms.