Research › Search › Judgment

Madras High Court · body

2023 DIGILAW 3292 (MAD)

M. Rangasamy v. Appachi @ Appaji

2023-11-10

P.B.BALAJI

body2023
JUDGMENT (Prayer: Second Appeal filed under Section 100 of C.P.C against the judgment and decree dated 12.06.2003 made in A.S.No.50 of 2002 on the file of I Additional District Court, Coimbatore in reversing the judgment and decree dated 30.04.2001 made in O.S.No.131 of 1990 on the file of Sub- Ordinate Court at Tiruppur.) 1. The unsuccessful plaintiff in a suit for specific performance is the appellant before this Court. 2. The case of the appellant, as plaintiff in the suit was that the suit property belong to defendants 1 and 2 who had purchased the same from Srinivasa Naidu and others in and by sale deed dated 14.07.1978. The plaintiff entered into a sale agreement with the defendants 1 and 2 for a total sale consideration of Rs.68,539/- in respect of 7 acres out of total 8.96 acres owned by defendants 1 and 2. According to the plaintiff, he paid an advance of Rs.10,000/- and the balance was agreed to be paid on or before 01.02.1990 and thereafter the sale deed was to be executed. Though the plaintiff was ready and willing to pay the balance sale consideration according to the plaintiff, the defendants 1 and 2 were evading to execute the sale deed and demanding an enhanced rate and were also trying to create encumbrance to defeat the rights of the plaintiff. The plaintiff caused a lawyer's notice on 20.01.1990, calling upon them to receive the balance sale consideration and execute the sale deed in terms of the agreement and not to indulge in creating any further encumbrance over the property. They also caused a paper publication to such effect. 3. The defendants 1 and 2 replied to the said notice denying the sale agreement and claiming that they have executed only a mortgage in favour of the 3rd defendant which according to the plaintiff was a sham and nominal document created by the defendants 1 and 2 colluding with the 3rd defendant the mortgagee. The mortgagee has been arrayed as the 3rd defendant in the suit. According to the plaintiff, he is prepared to deposit the balance sale consideration as and when the Court directs and the suit is not barred by limitation having been filed on 05.04.1990. 4. The mortgagee has been arrayed as the 3rd defendant in the suit. According to the plaintiff, he is prepared to deposit the balance sale consideration as and when the Court directs and the suit is not barred by limitation having been filed on 05.04.1990. 4. The said suit was resisted by the defendants 1 and 2 on the ground that they never executed any sale agreement in favour of the plaintiff and they also never received any advance from the plaintiff. According to the defendants, the suit agreement was fabricated and forged. It is also contended by the defendants that the plaintiff might have created the agreement using the blank signed, stamp papers and other documents, in order to take away the property of the defendants. It is further pleaded in the written statement that on 19.07.1989, the defendants have entered into an agreement of sale with one Mr.Shanmugam and a portion of the property has also been subsequently conveyed to him, in and by a registered sale deed on 19.01.1990 for a consideration of Rs.75,000/- and that the plaintiff was fully aware of the said sale also. Further, it is specifically averred by the defendants that the plaintiff has no wherewithal to advance a sum of Rs.10,000/- and the plaintiff has approached the Court with a false case. 5. Before the Trial Court, plaintiff examined himself as P.W.1 and one Mr.Palanisamy as P.W.2 and marked Exs.A1 to A6. On the side of the defendants the 1st and 2nd defendants was examined as D.W.1 and D.W.2 respectively and no documents were exhibited. 6. The Trial Court relying on the evidence of P.W.2, the witness held that the agreement was indeed a sale agreement and the defendants were bound by the same. The Trial Court granted a decree of specific performance in favour of the plaintiff. As against the same, defendants 1 and 2 preferred A.S.No.50 of 2002. In the said Appeal I.A.No.327 of 2002 was filed under Or.41 R.27 C.P.C seeking to receive the sale deed dated 17.01.1990 executed by the appellants in favour of Shanmugam. 7. The Trial Court granted a decree of specific performance in favour of the plaintiff. As against the same, defendants 1 and 2 preferred A.S.No.50 of 2002. In the said Appeal I.A.No.327 of 2002 was filed under Or.41 R.27 C.P.C seeking to receive the sale deed dated 17.01.1990 executed by the appellants in favour of Shanmugam. 7. The First Appellate Court rendered a finding that the sale agreement entered into 06.11.1989 could not be true as the stamp papers were purchased only on 07.11.1989 and that when two acres have been sold for Rs.75,000/- at Rs.37,500/- per acre it was not probable for 7 acres being sold for a throw away price of Rs.68,500/-. Thus, the First Appellate Court found that it was only a loan transaction and blank papers had been misused to bring about the sale agreement based on which alone the suit for specific performance came to be filed. 8. Aggrieved by the said judgment and decree of the First Appellate Court, the plaintiff has preferred the present Second Appeal. 9. I have heard Mr.R.Srinivas, learned Senior Counsel for Mr.S.Adaikkappan @ Sithirarianandam, Mr.R.Ramesh for R4, Mr.C.Prabhakaran for R5, Mr.Dinesh Kumar for R6, Mr.Prasanth for R7, Mr.V.Ragavachari, learned Senior counsel for Mr.N.Umapathi for R8, Mr.P.G.Gurusamy for R9 and Dr.S.Suriya, AGP(CS) for R10. 10. Upon hearing the arguments of the learned Senior counsel on either side, I formulate the following substantial questions of law: i) Whether the procedure adopted by the First Appellate Court in  admitting additional evidence under Or.41 R.27 is proper ? ii) Whether the First Appellate Court was justified in rendering a finding that the agreement of sale was suspicious on a ground not pleaded or raised before the Trial Court viz., the discrepancy in the dates of the sale agreement and the stamp paper issuance? 11. ii) Whether the First Appellate Court was justified in rendering a finding that the agreement of sale was suspicious on a ground not pleaded or raised before the Trial Court viz., the discrepancy in the dates of the sale agreement and the stamp paper issuance? 11. The learned Senior counsel for the appellant, besides contending that the Lower Appellate Court had not followed the mandate of Or.41.R.27 and 28 of C.P.C in taking on file the additional documents and also placing heavy reliance on the same to reverse the well considered findings of the Trial Court, would also submit that there were subsequent developments in the matter viz., despite the defendants setting up a defence that they sold the portion of the suit property of an extent of 2 acres for Rs.75,000/- to one Shanmugam, subsequently the defendants 1 and 2 themselves have filed a suit challenging the said sale deed and have obtained a decree. In such circumstances, learned Senior counsel for the appellant submits that fraud has been played on the Court by the defendants 1 and 2 and placing reliance on the judgment of the Hon'ble Supreme Court in S.P.Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs and Ors, (1994)1 SCC 1 , the Senior counsel would impress upon this Court to treat the judgment and decree obtained by the defendants as a nullity. 12. He would also place reliance on H.S.Goutham Vs. Rama Murthy and Another, reported in 2021 5 SCC 241 , where the Hon'ble Supreme Court held that when the procedure under Or.41 R.27 and 28 of the C.P.C. is not followed, parties to the appeal cannot be permitted to lead additional evidence. 13. Here interestingly, the plaintiff himself has come up with C.M.P.No.22527 of 2023 to lead additional evidence and mark additional documents. A detailed counter affidavit has been filed by the 8th respondent stating that the documents sought to be produced are in no way concerned with the present lis and therefore they cannot be received in evidence. 13. Here interestingly, the plaintiff himself has come up with C.M.P.No.22527 of 2023 to lead additional evidence and mark additional documents. A detailed counter affidavit has been filed by the 8th respondent stating that the documents sought to be produced are in no way concerned with the present lis and therefore they cannot be received in evidence. The documents that are sought to be filed at this Second Appeal stage are to show the subsequent events viz., the factum of the defendants 1 and 2 approaching the Civil Court challenging the sale deed in favour of Shanmugam which was the principal defence set up by the defendants 1 and 2 in the suit for specific performance laid by the plaintiff. In other words, the defendants 1 and 2 had pleaded in the written statement that they had entered into an unregistered sale agreement even prior to the suit sale agreement Ex.A1 and that subsequently, in furtherance of the said prior sale agreement in favour of Shanmugam, they have also executed a sale deed for a consideration of Rs.75,000/- in respect of 2 acres at the rate of Rs.37,500/- per acre. This was also pointed out by the defendants 1 and 2 in the proceedings that when 1 acre was sold was Rs.37,500/-, it was unbelievable for the defendants 1 and 2 to agree to sell a property in extent of 7 acres for a total sum of Rs.68,589/-. 14. The Trial Court after assessing and analysing the pleadings, oral and documentary evidence adduced by the parties found that Ex.A1 was a genuine sale agreement and not a forged or fabricated document as contended by defendants 1 and 2. The Trial Court also found that the plaintiff was ready and willing to perform his part of sale agreement and decreed the suit. However, pending the appeal, the defendants 1 and 2 sought to mark the sale deed executed by them in favour of said Shanmugam on the ground that though they have pleaded about the said sale deed in the written statement, they were not in a position to mark the said document. The First Appellate Court allowed the said application filed by the defendants 1 and 2 and relying upon the same, reversed the findings of the Trial Court and ultimately dismissed the suit for specific performance. 15. The First Appellate Court allowed the said application filed by the defendants 1 and 2 and relying upon the same, reversed the findings of the Trial Court and ultimately dismissed the suit for specific performance. 15. Now before this Court, it is the turn of the plaintiff to file additional documents to bring to light the subsequent events to show that when the defendants 1 and 2 who had primarily relied on the sale deed executed in favour of one Shanmugam to defeat the plaintiffs' case, have themselves filed a suit challenging the said sale deed and also succeeded in the said suit. According to the appellant, these documents now sought to be produced would be throwing true light on the relevant circumstances of the case especially in the light of the defence set up by the defendants 1 and 2 in the suit heavily relying on the sale deed executed by them in favour of Shanmugam. 16. Per contra, Mr.V.Ragavachari, learned Senior counsel appearing for the 8th respondent, a subsequent purchaser of the suit property, would contend that the 1st and 2nd defendants died way back on 08.09.2010 and 30.04.2019 and the plaintiff never took any steps to bring on record their legal heirs and only recently the applications were filed after a lapse of 13 years to bring on record the legal heirs of the defendants 1 and 2. He would place reliance on judgment of this Court in Govindappa Naidu Vs. C.Sidda Chetty and Ors, reported in 2003 SCC Online Mad 435, where in a suit for specific performance, this Court held that delay in prosecuting the appeal and representing the papers would cause severe hardship to the defendants and third parties and therefore, held that the relief of specific performance cannot be granted. However, in the facts of the said case, I am able to see that there was a delay in prosecuting the Appeal at the filing stage. Though an Appeal was filed, there was huge delay in representing the papers and in the interregnum period, the property had changed hands and improvements were made thereon. In such circumstances, this Court held that the relief of specific performance at such distance of time would cause severe hardship to the defendants as well as third parties. Though an Appeal was filed, there was huge delay in representing the papers and in the interregnum period, the property had changed hands and improvements were made thereon. In such circumstances, this Court held that the relief of specific performance at such distance of time would cause severe hardship to the defendants as well as third parties. However, in the facts of the present case, the Trial Court had decreed the suit and the Appeal was also filed in time and the decree of the Trial Court came to be reversed, as against which the plaintiff filed the Second Appeal in time. It is only pending the Second Appeal where the delay was occasioned on account of not taking steps for bringing on record the legal representatives of the deceased respondents 1 and 2. However, such applications were allowed by this Court, as it was not seriously opposed by the counsel for the respondents who were keen on getting the Appeal itself finally disposed of. Therefore, under such circumstances, I am unable to apply the ratio laid down by this Court in Govindappa Naidu's case to the facts of the present case. Be that as it may the First Appellate Court has chosen to allow I.A.No.327 of 2022 filed under Order 41 Rule 27 C.P.C, and admitted the sale deed dated 17.01.1990 executed by defendants 1 and 2 favour of Shanmugam. The Court ought to have followed the mandatory procedure contemplated under Order 41 Rule 28 of the Code of Civil Procedure. Order 41 Rule 28 C.P.C. reads as under: “Or.41.R.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, to take such evidence and to send it when taken to the Appellate Court.” 17. Thus, when the First Appellate Court had decided to admit the sale deed sought to be produced by the defendants 1 and 2 as additional evidence in the appeal, the Appellate Court should have recorded evidence either by itself, or directed the Trial Court to take evidence and send the same to it for further decision. Thus, when the First Appellate Court had decided to admit the sale deed sought to be produced by the defendants 1 and 2 as additional evidence in the appeal, the Appellate Court should have recorded evidence either by itself, or directed the Trial Court to take evidence and send the same to it for further decision. One another circumstance, that weighs in favour of the appellant is that the First Appellate Court, without any pleading whatsoever, has on its own discussed the discrepancy in the date of issuance of stamp paper on which the sale agreement has been typed and the date of sale agreement and come to a conclusion that the agreement could not have been entered into on 06.11.1989 as the stamp papers were purchased on 07.11.1989. The First Appellate Court has ought to have given an opportunity to the parties to address this discrepancy before jumping to conclusions on its own. Now, yet another twist in the tale is that the sale deed on which the defendants 1 and 2 placed heavy reliance on the Trial Court as well as the First Appellate Court was challenged by the defendants 1 and 2 themselves and documents relating to these proceedings are now sought to be produced on the side of the appellant, by way of additional evidence, invoking Or.41 R.27 C.P.C. Considering all the above, I am of the view that the matter has to be remitted back to the First Appellate Court to give a fair opportunity to the parties to establish the truth and genuineness as well as the admissibility of the document viz., the sale deed executed by the defendants 1 and 2 in favour of Shanmugam on 19.01.1990 and also the sale  agreement dated 06.11.1989 with specific reference to the truth and genuineness of the sale agreement dated 06.11.1989 with specific reference to the discrepancy in the date of issuance/purchase of stamp paper being 07.11.1989, moreover, the First Appellate Court has only relied on the additional document admitted by way of order under Or.41 R.27 of C.P.C to non suit the plaintiff. 18. I am conscious of the fact that the suit is only for specific performance of an agreement of sale. 18. I am conscious of the fact that the suit is only for specific performance of an agreement of sale. However, when the issue relating to the very genuineness of the sale agreement is still looming large on account of the discrepancy of the dates as discussed above being pointed out by the First Appellate Court and not being an issue raised by the parties either during Trial or even during the course of arguments before the First Appellate Court, it is only proper that the Appellate Court shall decide the Appeal following the procedure set out herein below: i) First Appellate Court shall permit the parties to lead evidence in respect of sale agreement dated 06.11.1989, sale deed dated 19.01.1990 and the additional documents sought to be produced by the appellant before this Court in Second Appeal subject to proof, relevancy and admissibility of the documents now sought to be filed as additional evidence. Upon such evidence being let in by the parties, the First Appellate Court shall render a finding with regard to the genuineness of the sale agreement dated 06.11.1989 in the light of the discrepancy in the dates between the date of agreement and date of purchase of stamp paper and subject to such finding and findings to be given in respect of the other additional documents sought to be produced by the plaintiff, shall go into the issue of readiness and willingness on the part of the plaintiff and his entitlement to a decree for specific performance thereof. 19. Though the additional documents now sought to be produced by the appellant are seriously objected to by the learned Senior counsel for the 8th respondent on the ground that they does not pertain to the lis, in view of the discussions made herein above and the First Appellate Court having placed heavy reliance on the additional document produced on the side of the defendants 1 and 2 to non suit the plaintiff, I am inclined to allow C.M.P.No.22527 of 2023 filed for production of additional documents. However, the documents shall be received by the First Appellate Court subject to proof,relevancy and admissibility alone. I am fortified by the decision of the Hion'ble Supreme Court in Sanjay Kumar Singh Vs. However, the documents shall be received by the First Appellate Court subject to proof,relevancy and admissibility alone. I am fortified by the decision of the Hion'ble Supreme Court in Sanjay Kumar Singh Vs. State of Jharkhand, reported in (2022)-7-SCC-247, where the Hon'ble Supreme Court has held that admissibility of additional evidence under Or.41 R.27 C.P.C does not depend upon the relevancy of issue on hand or whether the applicant proposing to adduce such additional evidence had an opportunity at an earlier stage or not but it would depend upon the whether or not, the Court requires the evidence sought to be adduced to enable it to pronounce judgment or any other substantial cause. Therefore, in line with the said ratio, I find, in the facts of the present case that the additional evidence sought to be produced by the appellant would have a direct bearing on a final decision in the Appeal. More over, in the present case, it was defendants 1 and 2 who belatedly sought to mark the sale deed executed by them, conveying an extent of 2 acres in favour of one Shanmugam for a total sale consideration of Rs.75,000/- (Rs.37,500/-). The present documents that are sought to be produced as additional evidence by the plaintiff are only follow up of the said sale deed and the subsequent events that have occurred post the execution of the said sale deed which has been allowed to mark as an additional document before the First Appellate Court. Therefore, I am of the opinion that the production of additional evidence will certainly enable the First Appellate Court to pronounce a considered judgment and there is substantial cause for permitting the additional documents sought to be adduced by the appellant, as already aforementioned, subject to proof, relevancy and admissibility of the same. In fine, C.M.P.No.22527 of 2023 is allowed. It goes without saying that the parties will be required to lead evidence regarding the documents that are sought to be produced and and also to enable proof of the agreement of sale, dated 06.11.1989 and sale deed dated 19.01.1990 that have already been exhibited. 20. In fine, C.M.P.No.22527 of 2023 is allowed. It goes without saying that the parties will be required to lead evidence regarding the documents that are sought to be produced and and also to enable proof of the agreement of sale, dated 06.11.1989 and sale deed dated 19.01.1990 that have already been exhibited. 20. In fine, the Second Appeal is allowed and the judgment and decree dated 12.06.2003 made in A.S.No.50 of 2002 on the file of I Additional District Court, Coimbatore is set aside and the matter is remitted back to the I Additional District Court, Coimbatore to complete the exercise of hearing the parties with regard to the additional documents sought to be produced, take evidence and decide the main appeal within a period of four months from the date of receipt of a copy of this judgment. However, there shall be no order as to costs.