R1IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE16H DAY OF MARCH, 2020 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.380 OF2005BETWEEN Sri Devaraj Aged about 63 years S/o Late Nellathambi Proprietor, M/s Jawan Auto Works South End Road, Basavanagudi Bengaluru – 560 004 …Appellant (By Sri S.Shaker Shetty, Advocate) AND1 Smt. Dayarathini Major, W/o Late K.Kadirappa 2. K.Anand Major, S/o Late K.Kadirappa 3. K.Shubhacharita Major, D/o Late K.Kadirappa All are R/at No.11 Dr. Ummer Sheriff Road Basavanagudi Bengaluru – 560 004 …Respondents (By Sri R Vijay Kumar, Advocate) 2 This RFA is filed under Section 96 of CPC against the judgment and decree dated 09.12.2004 passed in O.S.No.934/1982 on the file of the XI Additional City Civil Judge, Bengaluru (CCH-8) dismissing the suit for specific performance and permanent injunction. This RFA coming on for final hearing this day, the Court delivered the following:
JUDGMENTThe XI Additional City Civil Judge, Bengaluru dismissed the suit O.S.No.934/1982 for specific performance by his judgment dated 09.12.2004 and hence the plaintiff is in appeal before this Court.
2. Given a brief account of the pleadings, it is the case of the plaintiff that on 21.06.1980, he entered into an agreement with the defendants for purchasing a property measuring East to West 100 feet and North to South 50 feet in Sy.No.60/4 of Yediyuru village, Corporation Division No.34, Bengaluru City (referred to as ‘suit property’ herein after). The sale consideration fixed was ` 1,47,075/-. 3 The defendants received ` 15,000/- from the plaintiff towards advance sale consideration or the earnest money, and agreed to execute the sale deed by receiving the balance of ` 1,32,075/- after obtaining requisite permission from the competent authorities. Instead of taking action for obtaining permission, the defendants went on postponing the performance of their part of contract. The plaintiff became suspicious about bonafides of the defendants and got issued a legal notice on 12.06.1981 demanding of them specific performance of the agreement. The defendants issued a reply denying the execution of the agreement in favour of the plaintiff and therefore he brought a suit for specific performance. Of course, in the plaint he stated that he was always ready and willing to perform his part of the contract.
3. The defendants, in their written statement, denied to have entered into any agreement with the 4 plaintiff on 21.06.1980. Their specific contention is that the plaintiff approached the husband of the first defendant and represented to him that one Colonel Mannam Samuel who was the Territorial Commander of an organization called ‘The Salvation Army’, Madras and Andhra Territory, was interested in purchasing the suit property for the benefit of their Church. After several rounds of negotiations, the defendants agreed to sell the suit property to ‘The Salvation Army’ for ` 1,47,075/- and in this regard there came into existence an agreement on 21.06.1980. The defendants admit to have received ` 15,000/- being the earnest money and agreed to execute a registered sale deed by receiving balance of ` 1,32,075/-. This agreement provided for obtaining permission from a competent authority before execution of a proper deed of conveyance. The plaintiff was actually acting on behalf of the purchaser, viz., Colonel Mannam 5 Samuel, who in fact laid foundation stone formally on 22.06.1980. But the successor of Colonel Mannam Samuel did not approve the site in question and he dropped the idea of purchasing the suit property. There was no transaction between them and the plaintiff. But having noticed steep rise in the value of immovable property in and around Bengaluru, and having been encouraged by some persons who wanted to knock off the suit property, he took undue advantage of his knowledge about the transaction between them and Colonel Mannam Samuel. They contended that they never entered into any agreement with the plaintiff. They also amended the written statement to state that the market value of the suit property on the date of agreement was actually ` 3,00,000/- and therefore it was highly impossible that they agreed to sell their property for ` 1,47,075/- and they also stated that because of steep 6 inflation and fall in the rupee value, the value of the suit property increased manifold. It is stated that in case the relief of specific performance is granted, it would be unfair in the light of these circumstances.
4. The trial Court framed the following issues and additional issues: ISSUES:- 1. Whether the plaintiff proves that defendants executed an agreement of sale in his favour dated 27.06.1980?.
2. Whether the plaintiff was ready and willing to perform his part of the contract?.
3. To what relief the plaintiff is entitled to?. ADDITIONAL ISSUES:- 1. Whether it would be inequitable to enforce the agreement on account of contentions raised in para-4(B) of the written statement especially that the 7 market value of the property has gone up considerably?.
2. Whether the agreement gives any unfair advantage to the plaintiff over the defendant?.
5. From the plaintiff’s side, three witnesses, PW1 to PW3, adduced evidence getting marked six documents as per Exs.P1 to P6. From the defendants’ side, nine witnesses, DW1 to DW9, adduced evidence and produced 23 documents as per Exs.D1 to D23. Another witness Lakshminarayan was examined as CW1 and through him, fourteen documents as per Exs.C1 to C14 were marked before the trial Court.
6. I have heard the arguments of Sri S.Shaker Shetty, learned counsel for the appellant and Sri R.Vijaya Kumar, learned counsel for the respondents. I will refer to the points that they argued and the 8 rulings they cited while answering the following points emanating for discussion.
1. Has the trial court correctly held that the plaintiff has failed to prove execution of agreement of sale dated 21.06.1980 by the defendants 1 to 3?.
2. Is the finding of the trial court that the plaintiff was not ready and willing to perform his part of the contract, correct?.
3. Are there grounds to interfere with judgment of the trial court?.
7. Before discussing the formulated points, I would like to quote a ‘Shloka’ from ‘NARADA SMRITI’. It is “SAKALAM PURVAPADANCHA SOTTARAM SAKRIYAM TATHA SAAVADHARANAKAMCHAIVA TAJNEYA JAYAPATRAKAM” 9 8. ‘JAYA PATRA’ means judgment of a court. What it must contain is gist of pleadings, reference to evidence given by either side parties, analysis of facts and evidence, and findings of the court.
9. The reason for quoting the above shloka is that learned counsel for the appellant and the respondents, while arguing relied upon umpteen case law. The learned counsel for the appellant, in particular, cited a decision for every sentence of his submission. In many a decision cited by him, well established principles of law are reiterated. To quote a few, Madhukar and others Vs. Sangram and others [(2001) 4 SCC756 and Vinod Kumar Vs. Gangadhar [(2015) 1 SCC391 deal with the scope of the first appeal; Superintending Engineer and others Vs. Subba Reddy [(1990) 4 SCC423 deals with scope of cross objection or cross appeal under Order 41 Rule 22 of CPC. Prakash Chandra Vs. Angadlal and others 10 (AIR1979SC1241 deals with the ordinary rule to be kept in mind while exercising discretionary power envisaged under Section 20 of the Specific Relief Act, and in Nagindas Ramdas Vs. Dulphatram Iahharam @ Brijram and others (1974) 1 SCC242 what is discussed is validity of admission under Section 58 of the Indian Evidence Act.
10. Amongst other points, one of the points dealt with in the cases of Sundarjas Kanyalal Bhathija and others Vs. The Collector, Thane (AIR1990SC261 and Indian Oil Corporation Ltd., Vs. Municipal Corporation and another [(1995) 4 SCC96, is as regards binding nature of precedents. The reason for citing these two rulings is quite obvious; according to him, the other rulings cited by him are very much applicable and therefore they are to be followed. In this regard, I would like to refer to two other decisions of the Supreme Court (not cited) as they are found to 11 be very apt. In the case of Dr.Subramanian Swamy Vs. State of Tamil Nadu & others (AIR2015SC460, it is held, “31. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. “The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact-situation of the decision on which reliance is placed”.
11. The earlier decision of the Hon’ble Supreme Court on the same point is in the case of Bhavnagar University Vs. Palitana Sugar Mills Private Limited and others (AIR2003SC511, It is held as below “59. A decision, as is well-known, is an authority for which it is decided and not 12 what can logically be deduced there from. It is also well-settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. See Smt. Ram Rakhi Vs. Union of India & others. [AIR2002Delhi 458]., Delhi Administration (NCT of Delhi) Vs. Manoharlal [AIR2002SC3088, Haryana Financial Corporation and Anr. v. M/s Jagdamba Oil Mills & Another [JT2002(1) SC482 and Dr. Nalini Mahajan etc. Vs. Director of Income Tax (Investigation) & others [(2002) 257 ITR123”.
12. Therefore what I feel like expressing humbly is that over the years, a good number of case law has evolved, it is not necessary to cite decisions on established principles. Making mere references to case law and extracting some paragraphs from the cited decisions, without assessing the pleaded facts and evidence, does not make a judgment; at best it may be an essay or an article. Adhering to the 13 principles laid down by the Hon’ble Supreme Court in Dr.Subrahmanyam Swamy Vs. State of Tamilnadu and others, and Bhavnagar University Vs. Palitanga Sugar Mills Ltd., I would like to refer to only those rulings or decisions which are apt and relevant for discussion. POINT NO.1:
13. The plaintiff states that he entered into an agreement with the defendants on 21.06.1980 for purchasing the suit property, and the defendants deny to have executed it. They also deny their signatures on the said agreement marked Ex.P.1. In the examination-in-chief, he asserts to have entered into an agreement and that the attestors to the agreement were K.Huchha Krishnachari (PW2) and Papaiah (PW3). The attestors have stated that the agreement was executed by the defendants in their presence, and that they have identified their signatures on Ex.P.1. 14 All these witnesses have been cross examined at length. To rebut the evidence put forth by the plaintiff regarding execution of agreement, the main witnesses from the defendants’ side are DW1, DW2, DW3, DW6 and DW9 and they have produced copies of the letters, which according to them would prove that the actual agreement was with ‘The Salvation Army’, and that the plaintiff was only an agent of ‘The Salvation Army’. Before reassessing the evidence of these witnesses, brief reference to the findings recorded by the trial court is necessary.
14. It is held by the trial court that though PW1, PW2 and PW3 have stated in their evidence that the defendants executed the agreement as per ExP1, their evidence does not establish the execution of agreement for, PW1 failed to identify the defendants 2 and 3 in the open court; he wrongly identified DW5 and DW6 to be defendants 2 and 3. Therefore it is 15 doubtful that the defendants would have executed the agreement in favour of the plaintiff, and in this view, the specific contention of the defendants denying the execution of agreement becomes probable. The trial court has also found that the evidence regarding payment of earnest money is not consistent. The plaintiff denied to have approached a real estate agent by name Venkataramanappa although he mentioned his name in the affidavit filed by him with an application for temporary injunction; the trial court has taken note of this conduct of the plaintiff to come to conclusion that he may not be a truthful witness.
15. With regard to signatures of the executants on EXP.1, the trial court did not look into the report of the Commissioner. It held that the High Court appointed the Director of Questioned Documents as a Commissioner to examine the disputed signatures, but the report was submitted by the Assistant Director. 16 The Director could not have delegated his authority and he also did not come to court to give evidence, but the Assistant Director gave evidence as CW-1, and therefore the trial court held that evidence of CW1 could not be looked into. Having held so, the trial court compared the admitted signatures of the defendants with disputed signatures and expressed doubt about genuineness of signatures on the agreement. This is another reason for holding the agreement against the plaintiff.
16. Lastly, the trial court has found the probability in the defence put forward by the defendants that they contracted with ‘The Salvation Army’ on 21.06.1980 for selling their property, and therefore answered issue no.1 in negative.
17. The main argument of Sri. S. Shaker Shetty, learned counsel appearing for the appellant is 17 that evidence of PW1 with regard to execution of the agreement is buttressed by PW2 and PW3. There is no inconsistency in their testimonies. Wrong identification of defendants 2 and 3 in the court cannot be given so much of importance. PW2 and PW3 have clearly stated that the defendants executed the agreement in their presence, and there are no reasons to discard their evidence. He argued that the defendants do not dispute the execution of the agreement on 21.06.1980. This is their admission according to Section 58 of the Indian Evidence Act. The admission cannot be ignored. In this regard, he referred to the judgment of the Supreme Court in the case of Nagindas Ramdas Vs. Dalpatram IchaRam @ Brijram & others [(1974) 1 SCC242].. The defendants contend that agreement was in favour of ‘The Salvation Army’. If this were to be true, they should have produced that agreement and proved it. 18 In the absence of evidence to this effect, he submitted that adverse inference should be drawn against them. On this point, he has referred to the decision of the Supreme Court in the case of Gopal Krishnaji Kelkar Vs. Mohamed Haji Leti (AIR1968SC1413.
18. He further argued that the trial court should not have doubted the genuineness of the signatures of the executants of the agreement by comparing them with admitted signatures. According to him, the court cannot take the aid of Section 73 of the Indian Evidence Act; it cannot assume the place of an expert. Having declined to rely upon the evidence of CW1 and his report, the best way available was to issue fresh commission for giving opinion on the disputed signatures. Failure to do so would warrant remand of the case to the trial court, he argued. Another point that he emphasized was that when the attestors to the agreement, PW2 and PW3 gave 19 evidence that they saw the defendants executing the agreement in their presence, their testimonies prevail, there was no need to compare the signatures according to Section 73 of the Indian Evidence Act. In this regard, he cited the rulings in Fakhruddin Vs. The State of Madhya Pradesh (AIR1976SC1326, Ajit Sawant Majagavi Vs. State of Karnataka (AIR1997SC3255.
19. Sri. R. Vijaya Kumar, learned counsel for the respondents (defendants) argued that mere production of Ex.P.1 and examination of attestors would not establish the execution of the agreement. The discrepancies in the evidence are very well noticed by the trial court. The defendants do not agree to have entered into contract with the plaintiff; their specific defence about executing agreement on 21.06.1980 does not amount to admission; the 20 defendants have no where admitted to have entered into agreement with the plaintiff.
20. He further argued that wrong identification of defendants 2 and 3 in the court itself is enough to discard the evidence of PW1. The defendants took out notices to Colonel Mannam Samuel for production of agreement with ‘The Salvation Army’. He did not produce it. DW9 has given evidence establishing defendants’ case. There are other documents viz., Ex.D4, Ex.D5 and Ex.D6 which prove that the plaintiff participated only as a middleman between ‘The Salvation Army’ and the defendants. The plaintiff is a Christian and a member of ‘The Salvation Army’. Therefore the trial court has correctly concluded that agreement is not proved.
21. With regard to comparison of signatures, he argued that the Director of Questioned Documents 21 did examine the signatures, in fact this has been clearly observed by the trial court. He asked his Assistant Director to examine the signatures for confirming his opinion. Just because there was no authorization to CW1 to depose in the Court, the opinion of the Director, which stands independently cannot be ignored; it can be acted upon according to Order 26 Rule 10(2) of the Civil Procedure Code. It is his argument that the trial court’s conclusions on issue No.1 are correct.
22. In the light of the above arguments, the evidence requires a re-look. The initial burden is on the plaintiff to prove the execution of the agreement. Plaintiff’s evidence must appear to be believable, the oral evidence of PW2 and PW3 does not stand independently; their evidence is only supplementary, but does not supplant the evidence of PW1. Therefore it is to be seen how PW1 has fared in the cross 22 examination. The first thing that can be noticed from his cross examination is his failure to identify defendants 2 and 3. His clear answer is that he had seen the second defendant about 5-6 times earlier, and he gave the facial traits of second defendant and having said that the second defendant was sitting in the court, he identified one Rahul, the brother of the second defendant. Likewise, he did not identify the third defendant, Smt. K.Shubhacharita, but identified another lady by name Charumati. His failure to identify them in the court cannot be ignored, for when very execution of the agreement is disputed by the defendants, identification of the executants personally is very important, that too in the background of his firm stand that all the defendants executed the agreement in his presence.
23. As regards the talks held before coming into being of the agreement on 21.06.1980, the 23 answer that PW1 has given in the cross examination is that the terms and conditions were settled in the morning between him and the defendants, and at that time, Dr. Kadirappa was also present. He has stated that the defendants had kept the document ready by evening. But PW2 has stated that he accompanied the plaintiff in the morning, and he did not go inside the defendants’ house; the plaintiff alone went inside. Contrary to what PW1 and PW2 have stated, PW3 has stated that the transaction was finalized one day earlier. Inconsistency in the evidence of PW1, PW2 and PW3 is very glaring.
24. In regard to sale consideration, the evidence of PW1 is that it was fixed on the basis of per square yard, which was ` 310/- at that time. If this was how they agreed to, it should have been mentioned in the agreement, but what is mentioned in the sale agreement is ` 1,47,075/- which is less than 24 the amount if calculated according to per square yard basis.
25. The evidence in regard to payment of earnest money is inconsistent. PW1 states that he made the payment of ` 15,000/- at a time to the first defendant and PW2 and PW3 have also given evidence in that way. But PW1 himself produced a document as per ExP4 which shows that Dr. K.Kadirappa (DW6) received ` 2001/- on 05.05.1980 and ` 4001/- on a subsequent date. DW6 has admitted the receipt of earnest money in three instalments of ` 6000/-, ` 5000/- and ` 4000/- from the plaintiff, but he has stated that the plaintiff gave that money representing ‘The Salvation Army’. If according to the plaintiff, there was direct contract between him and the defendants, ExP4 falsifies his assertion; if he had paid ` 15,000/- to first defendant, for what purpose did he produce ExP4, is another question that has no answer. 25 Signature of Dr. K.Kadirappa is there on Ex.P4, therefore Ex.P4 probablizes the specific contention of the defendants.
26. The conduct of the plaintiff is also very important to be noted here. The trial court has observed this. In the course of proceeding, he made an application for temporary injunction to restrain the defendants from alienating the suit property. In the affidavit filed along with the application, he stated that from a real estate broker called Venkataramanappa, he came to know that the defendants were attempting to sell the suit property and therefore put forth that reason for seeking an order of temporary injunction. In the cross examination he answered that he did not know Venkataramanappa and that he had never been to his office. The application made by him was confronted to him; he identified his signature. It was 26 marked Ex.D.1. Disowning of the contents of his own affidavit by PW.1 does not reflect well on his conduct.
27. If the case of the defendants is examined, as already stated, they do not admit to have entered into agreement with the plaintiff, rather their stand is that they wanted to sell the property to The Salvation Army. DW1, DW2 and DW3, in their examination-in- chief have stated in tandom with the written statement. To further establish their specific defence, they examined DW9-Colonel Mannam Samuel, who was the Territorial Commander of ‘The Salvation Army’. Although he has stated in the examination-in- chief that he cannot remember whether Kadirappa, DW6 and his daughter gave any letters to him, he has also stated that he knew Kadirappa and then identified his (DW9) signature, at Ex.D.10(a) besides saying that he got issued reply as per Ex.D.11, and writing letters as per Ex.D.4 and D.6. He has also stated that 27 his secretary received the letter as per Ex.D.8 and the Secretary of M.J.
Samuel received the letter as per Ex.D.9. He has identified the signature of one J.
Isreal, a member of their organization, on Ex.D.5. Very prominently he has stated in the examination-in- chief that the plaintiff was a member of ‘The Salvation Army’. It may be relevant to mention here that PW1 also admits in the cross examination that he was member of ‘The Salvation Army’. DW9 has further stated that he was coming to Bangalore in connection with matters pertaining to his organization and that he had asked the members of his organization, including the plaintiff to search for a convenient site for construction of a church. He has stated further that Kadirappa’s site was one of the sites that was brought to his notice for the purpose of negotiation and that he had given some money to Devaraj, i.e., the plaintiff to negotiate and settle a suitable site. It is 28 his further say in the examination-in-chief that since he was transferred from Madras to Bombay, the members of the organization wanted him to bless the foundation stone which was to be used when a suitable site was secured at Bengaluru. He has identified a photograph as per Ex.D.20(a) in connection with the function arranged for blessing the foundation stone. He has stated that there was no further progress in purchasing the site belonging to Kadirappa. If the cross-examination of this witness is seen, he has not at all been questioned with regard to what he stated about asking the members of the organization including the plaintiff to search for a site for constructing a church building, giving money to the plaintiff, and his acquaintance with Kadirappa. He was only questioned regarding Ex.D.4, D.6 and D.11. It was also elicited from him that the photograph Ex.D.20 was taken in the workshop of Devaraj. 29
28. The cross examination of DW1, DW2 and DW3 reveals that they have stuck to their stand that they never entered into agreement with the plaintiff. But one aspect needs to be mentioned here. The attention of DW2 was drawn to her signature on the written statement and she was questioned whether it was her signature. The trial court judge has made a mention in the deposition sheet that entire written statement was not shown to DW2. Probably the cross examining counsel might have covered the written statement or folded it to draw the attention of DW2 to only that portion of written statement containing signatures. DW2 has given two answers, she stated that she could not say whether it was her signature or not; and the second answer is that she could not say without seeing the complete document, whether the signatures as per Ex.P.5(b) and P5(c) were that of her son and daughter. Same was her answer when 30 signature portion in her vakalatnama was shown to her. Referring to these answers, Sri. Shaker Shetty commented that DW2 was not a truthful witness. If she denied her signature on the written statement and the vakalatnama, the entire defence setup by the defendants must be rejected.
29. It is not possible to accept the argument of Sri. Shaker Shetty. Whenever a witness is to be confronted with his signature in the course of cross examination, entire document must be shown, covering or folding the contents of a document leaving open the signature portion only is a deceptive method or trick, and the courts should not encourage such kind of cross examination. Howsoever educated a witness may be, while standing in the witness box, facing cross examination, it is natural to stumble. Credibility of a witness cannot be tested and assessed by adopting deceptive methods. Here if 31 DW2 stated she wanted to see the entire document either to admit or deny the signatures, she might have given such an answer, as it can be inferred, keeping in mind that she and her children had denied the signatures on the agreement in Ex.P.1. There is nothing wrong in her answer.
30. An attempt is also made to elicit from them whether they had ever seen Colonel Mannam Samuel, who was the Territorial Commander of ‘The Salvation Army’ and they admitted that they had not seen him. Learned counsel for appellant, by referring to these answers of DW1 to DW3, argued that the specific defence of the defendants was worth rejection, for, according to him, when they admitted to have not seen him, obviously, their entering into agreement with him would be hypothetical, and the only agreement that came into existence was Ex.P.1. Ofcourse, this kind of argument is possible, but it is 32 difficult to be accepted. What transpires from their evidence is, it was Dr. Kadirappa, DW6, the husband of the first defendant and the father of second and third defendants, who might have finalized the transaction with ‘The Salvation Army’. It is not disputed that the suit property earlier belonged to Dr. Kadirappa and that he gifted it to defendants 1 to 3. Therefore the evidence given by DW6 is to be referred to now.
31. DW6 does not deny his acquaintance with the plaintiff, he has stated that he came to know him in the year April 1980; but he too states that the defendants did not enter into any agreement with the plaintiff. Stating that the signatures marked Ex.P.1(a) to P(c) are not the signatures of his wife and children, he states that they entered into agreement with Colonel Mannam Samuel of ‘The Salvation Army’. What he has stated is that the plaintiff and one 33 Captain Lazeruas were approaching him on behalf of ‘The Salvation Army’, and that he received earnest money of ` 15,000/- from the plaintiff in three instalments of ` 6,000/-, ` 5,000/- and ` 4,000/-. He has stated that the agreement was settled in his house; and he has stated further that in the month of August, 1980, one M.G. Sammuel, who succeeded Colonel Mannam Samuel, met him and told that he was not interested in purchasing the suit property as it was not suitable for their purpose.
32. DW6 has taken the name of one Captain Kumaraswamy in his examination-in-chief. What he has stated in this regard is that the plaintiff and Kumaraswamy met him and demanded to return the advance money. He has further stated that he met Captain Kumaraswamy after the plaintiff filed the suit and requested him to help the defendants by giving evidence with regard to facts within his knowledge 34 about the actual transaction, but he refused to depose as a witness giving the reason that he and the plaintiff belonged to the same organization; however he gave him four letters saying that he could make use of those letters if they were helpful. He produced these letters which are marked Ex.D4 to Ex.D7. He has also stated about contacting Mr.Lazareus in the year 1985 to request him to depose in their favour. But he sought excuse giving the same reason as Kumaraswamy gave. DW6 produced the letter as per Ex.D.12 written by the said Lazareus to him. It is also his evidence that he wrote certain letters to the Church, i.e., ‘The Salvation Army’ for expediting the transaction and those letters are Ex.D.8 and D.9. This witness was subjected to lengthy cross examination, but nothing worth mentioning here has been elicited from him in the cross examination, rather his answers do very well show his efforts to complete the 35 transaction with ‘The Salvation Army’ before and after institution of the suit, his efforts to meet Colonel Mannam Samuel and Captain Lazareus for the purpose of securing their presence before the court to speak in their favour.
33. With respect to Ex.D.4 to D.7, it was the argument of Sri. Shaker Shetty that they cannot be taken into consideration for, in the written statement there is no reference to these letters and they are not the originals. I do not think that this argument is sustainable. DW6 is not a party to the suit although he appears to be a person behind the entire transaction. He is just a witness. The general principle of appreciation of evidence is that if evidence is produced without any basis for it in the pleading, it is of no use and if no proof is provided for what is pleaded, it is also of no use. Probably in this background, Mr. Shaker Shetty might have argued. If 36 the entire written statement is seen, the consistent stand of the defendants is, as stated already, that they do not admit to have entered into agreement with the plaintiff and that their transaction was with ‘The Salvation Army’. This is the foundation of their pleading in the written statement. If the defendants examined DW6 as their witness to substantiate their specific plea of not having any transaction with the plaintiff, it is not necessary that whatever DW6 states as a witness should be reflected in the written statement, but what is essential is that his evidence should not deviate from the main fulcrum of the defence. If he says something within his knowledge about the transaction, it cannot be totally discarded for want of pleading.
34. It is true that Ex.D.4 to D7 are the photocopies. Objection is taken on the ground that they are not originals. But no suggestion is there in 37 the cross examination of DW6 that the letters as per Ex.D.4 to D7 were not written by Colonel Mannam Samuel and Lt. Colonel J.
Isreal. It is not the case of the plaintiff that the contents of these letters are false. Only suggestion given to DW6 was that these documents are concocted which DW6 has denied. It is true that the defendants could have examined Kumaraswamy, but the evidence of DW6 shows that he had made best efforts to bring him to court. Merely because the defendants did not apply to the court for issuing summons to him, that cannot be a ground for ignoring these documents when the circumstances clearly indicate that these letters were in fact written by those persons. It is very pertinent to mention here that Ex.D.4 to Ex.D.8 were shown to DW9 - Colonel Mannam Samuel when he was examined-in-chief and he admitted that those letters 38 were written by him and that they bear his signatures. Therefore the argument in this regard is rejected.
35. Two other important documents are Ex.D10 and Ex.D11. Ex.D10 is a legal notice got issued by the defendants to N.J.Samuel and Mamam Samuel on 03.01.1981, before institution of the suit by the plaintiff. By issuing notice to them, the defendants brought to their notice that they had obtained requisite permission and were ready to execute the sale deed pursuant to agreement dated 21.06.1980 and called upon them to pay the balance of sale consideration and obtain sale deed from them. To this notice, Col. N.J.Samuel and Col. Mannam Samuel got issued reply as per Ex.D11. In this reply, it is stated that Mr. Devaraj i.e., the plaintiff was helping them to search for a site in Bengaluru and that they had paid ` 15,000/- to him. It is clearly stated in Ex.D11 that Col. Mannam Samuel and Col. N.Samuel visited the 39 suit property in August 1980 and made it clear to Dr. K.Kadirappa that they were not interested in purchasing the suit property and that they had not authorized the plaintiff to enter into any agreement and further that they had asked the plaintiff to return ` 15,000/- to them.
36. Referring to Ex.D10 and D11, Sri. Shekhar Shetty argued that the plaintiff was not aware of exchange of notices, and that they are irrelevant. It is to be stated that Ex.D10 and Ex.D11 may be irrelevant to the plaintiff, but from the point of view of defendants, and to assess the evidence as a whole, Ex.D10 and Ex.D11, including Ex.D4 to Ex.D7, constitute state of things under which the plaintiff entered the picture between ‘The Salvation Army’ and the defendants, besides affording an opportunity for explaining the actual transaction. Section 7 of the Indian Evidence Act is applicable in this context. 40
37. DW4 and DW5 are the persons wrongly identified by the plaintiff. Probably they have been examined to prove that on 20.02.1996 they were present in the court hall and that they signed the order sheet pertaining to the suit to mark their presence in the court hall on that day. Their presence in the court on that day is not disputable because even in the impugned judgment, their presence is noted.
38. One point argued by Sri. S. Shaker Shetty was that the defendants could have produced the agreement dated 21.06.1980 with ‘The Salvation Army’ if really there was such a transaction between them, or that they could have sought production of the said agreement deed from ‘The Salvation Army’. He argued that adverse inference must be drawn against the defendants. Sri.R.Vijaya Kumar submitted that the defendants made an application under Order 41 12 Rule 8 of CPC for causing production of the agreement deed, and it was not produced by the concerned. Therefore they examined DW9. In regard to this argument, it may be stated that if the said agreement had been produced before the court, indeed it would have been the best evidence. Non production of the agreement alone cannot be a reason for disbelieving the defendants’ contention. No adverse inference can be drawn. The evidence given by DW1 to DW3, and DW6 finds corroboration from the evidence of DW9 as also ExD4 to D11 and therefore it may be inferred that the defendants might have entered into agreement with ‘The Salvation Army’, and not with the plaintiff. The genuineness of ExP1 may be doubted. Since the defendants have disputed their signatures on ExP1 and that the trial court has also held that the disputed signatures do not 42 tally with admitted signature, this aspect requires consideration.
39. The trial court did not look into the evidence of CW1 and his report because he was not the commissioner appointed by the court. It was the Director of Questioned Documents Section, Forensic Science Laboratory, Bengaluru who was appointed as the expert to give opinion with regard to the genuineness of the signatures found on Ex.P.1. The Director in fact examined the disputed and the admitted signatures, but also asked the Incharge Asst. Director, i.e., CW1 to give his opinion. This is very much observed by the trial court and CW1 has also stated that the examination was made by the Director also. For giving evidence, the Director did not come, but sent CW1 to the Court. Having observed that CW1 was not appointed as a commissioner, the trial court thought that it was not safe to rely upon the 43 evidence of CW1. No fault can be found with the decision of the trial court for this reason. Sri. S. Shaker Shetty relied upon a judgment of this Court in the case of Shamanna Setty Vs. B.L.Channegowda – (ILR2006Kar. 3588) and the High Court of Kerala in the case of Damodaran Vs. Karimba Plantation (AIR1959Kerala
358) to argue that the appointed commissioner cannot delegate the commission work to other person. Probably he might have referred to these judgments to emphasize the point that the evidence of CW1 and his report cannot be considered in this appeal. As stated already the report of the Director is also available and according to Order 26 Rule 10A(2) read with Order 26 Rule 10(2) of CPC, report of an expert is a good piece of evidence, however I also decline to look into the report of the Commissioner as also the evidence of CW1. 44
40. The trial court further compared the disputed signatures of the defendants found on the agreement with their admitted signatures and came to conclusion that there are differences in the signatures and thus disbelieved Ex.P.1. In this regard Sri. S. Shaker Shetty argued as though the court cannot exercise its power under Section 73 of the Indian Evidence Act. It was his submission that another commission should be issued for examination of the signatures, and the matter may be again remanded to the trial court for appointment of commissioner and decision afresh on merits of the case. He submitted that the court cannot assume the position of an expert and it is always better to have the opinion of an expert whenever hand writing or signature is disputed. He referred to some decisions, the first of which is in the case of Fakhruddin Vs. The State of Madhya 45 Pradesh (AIR1967SC1326. What is held in this decision is: “11. Both under Section 45 and Section 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether 46 expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that Court may accept that fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness”.
41. In the case of Ajit Savant Majagavi Vs. State of Karnataka (AIR1997SC3255, the Supreme Court has held - “37. This Section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. 47 admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or finger prints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The Section does not specify by whom the comparison shall made. However, looking to the other provision of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself”.
42. The learned counsel for the respondents also referred to two judgments of Supreme Court. In the case of Shashi Kumar Banerjee and others Vs. 48 Subodh Kumar Banerjee (Deceased by LRs) and others (AIR1964SC529, it is held - “The expert’s evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence”.
43. In the case of Murarilal Vs. State of MP (AIR1980SC531, it is held - “12. The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether writing is that of the person by whom it purports to have 49 been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh 50 (supra) were cases where the Court itself compared the writings”. (emphasis supplied) 44. It is quite clear as to why Sri. Vijay Kumar relied upon the above two decisions. According to him the Director also examined the signatures and he asked the Asst. Director only to confirm his opinion. Both examined the signatures independently and evidence of CW1, can be acted upon. But I have already opined that the evidence of CW1 will not be looked into.
45. The argument of Sri. S. Shaker Shetty, if accepted, will make Section 73 of the Indian Evidence Act redundant. In none of the decisions referred to above, it is held that the Court cannot take recourse to Section 73, what is emphasized is that the court cannot assume the role of an expert and it is better to obtain opinion of an expert. Since Sri. Shaker Shetty 51 argued that Section 73 cannot be invoked at all, it may be stated now that if the court finds that the differences and the dissimilarities in the signatures or the writings are not apparent or glaring so that an immediate opinion cannot be formed by the court, it is better that this task is entrusted to an expert who from his experience and with aid of technology, will give his opinion. Or in other words, if the dissimilarities and the differences are visible to the naked eye, there is no bar for comparing the signatures according to Section 73 of the Indian Evidence Act.
46. In this case the trial court has compared the admitted signatures of all the defendants with the disputed signatures on Ex.P.1. It is of the opinion that there are differences. Undertaking the same task of comparison, it may be stated that the opinion of the trial court is correct. Especially with regard to the 52 signatures of defendants 2 and 3, there are lot of differences which are apparent and therefore the signatures on Ex.P.1 do not appear to be genuine signatures. Ex.P.1 appears to be a created document. Plaintiff might have thought of misusing the situation when he saw ‘The Salvation Army’ backing out of the transaction as he was very much involved in finalizing the transaction between ‘The Salvation Army’ and the defendants.
47. Therefore on collation of the entire evidence of the plaintiffs as also the defendants, what is forthcoming is that the plaintiff’s entering into agreement as per Ex.P.1 with the defendants does not appear to be probable. There is no privity of contract between the plaintiff and the defendants. Merely for the reason that the plaintiff produced the original agreement and examined the attestors for proving execution of the agreement, in the circumstances 53 discussed above, it is not possible to hold that the defendants entered into agreement with the plaintiff for selling the suit property to him. Rather what is forthcoming is that there is preponderance of probability in the case of defendants that they entered into agreement with ‘The Salvation Army’. Ex.P.1 appears to be not a genuine document. I do not find any flaw in the findings of the trial court. Point No.1 is therefore answered in affirmative. POINT NO.2:
48. According to the trial court the plaintiff’s readiness and willingness to perform his part of the contract has not been established. It has answered this issue having opined that actually consideration of the issue was not necessary as the execution of the agreement was not proved. 54
49. It was a strange argument of Sri. S. Shaker Shetty that the plaintiff was not required to prove the issue relating to his readiness and willingness in view of execution of agreement being denied by the defendants. This argument is not acceptable; be that as it may, he also argued that the finding of the trial court that the plaintiff had no capacity to pay the balance of sale consideration is wrong. The plaintiff got issued a legal notice as per Ex.P.2 demanding specific performance. The plaintiff is also not required to deposit any amount before the court according to explanation (i) to Section 16(c) of The Specific Relief Act, and this being the position of law, conclusion of trial court is incorrect.
50. Sri. R.Vijaya Kumar argued that the answers given by PW1 in the cross examination indicate that his income was not enough to mobilize funds for paying the balance of sale consideration. He 55 should have produced his pass book to show that he had money with him. Further, the terms of Ex.P1 show that before the registration of the sale deed, the defendants were required to obtain permission from some authorities. The defendants, having entered into agreement with ‘The Salvation Army’, and in order to comply with the terms of that agreement applied to Urban Land Ceiling Authority for obtaining permission. One Lazarus also filed an affidavit before the Urban Land Ceiling Authority. If really the plaintiff had obtained an agreement from the defendants and that he was ready to perform his part of the contract, he should have filed an affidavit. This action being not taken by the plaintiff, it is difficult to say that he was ready and willing to perform his part of the contract.
51. Sri. S. Shaker Shetty’s reply was that the Urban Land Ceiling Act is not in force now, but it was in force at the time when the parties entered into 56 agreement and the required permission could have been obtained even after registration of the sale deed. The court could grant specific performance conditionally, in the sense that he could be directed to obtain necessary permission before completion of registration process. He referred to a judgment of Gujarat High Court in the case of Shah, Jitendra Nanalal Ahamedabad Vs. Patel Lallubhai Ishverbhai, Ahmedabad and others (AIR1984Gujarat 145).
52. Regarding this issue, it is to be said that, although according to explanation (i) to Section 16(c) of the Specific Relief Act, actual deposit of money before the court is not required, it does not mean that the plaintiff should not prove his financial capacity. The plaintiff was required to pay balance of ` 1,32,000/-. If he was questioned in the cross examination whether he could produce his bank pass book, it was only with view to ascertaining his 57 financial position, and not that he should have deposited any amount before the court. His evidence shows that he was a second hand car dealer and running an automobile workshop. He has stated that he was negotiating the sale of 4 or 5 cars in a year and getting brokerage of ` 1000 or ` 2000/- per car. He has not stated his income from repair of automobiles. He might have stated that he used to have cash of ` 50,000/- to ` 60,000/- with him, but this assertion appears to be self serving; as he has stated that he had ` 50,000/- in his Canara Bank account, the best way of proving it was by production of pass book, and non production of it improbabalizes his case.
53. ExD13 and D14 are the two documents produced by the defendants in proof of their applying for permission under Section 26 of the Urban Land (Ceiling & Regulation) Act. They are the affidavits 58 filed by K.Shubhacharita, the third defendant and captain G.Lazarus, representing ‘The Salvation Army’. Ex.D15 and Ex.D16 are a notice dated 19.08.1980 and an endorsement dated 29.08.1980 issued by the Assistant Commissioner of Urban Land Ceiling Authority. The defendants examined two witnesses, Dw7 and Dw8 in connection with these aspects. The evidence given by DW8, who worked as Assistant Commissioner of Urban Land Ceiling Authority is relevant. He speaks about Ex.D13 to D15. Sri.S. Shaker Shetty commented on his evidence by referring to one answer in the cross examination that he was seeing the documents, Ex.D13 and Ex.D14 for the first time in the court. According to him, this answer would indicate that he had not seen them any time earlier. But such a meaning cannot be attributed to it; all that can be inferred is that he might not have seen them any time earlier in the court than the day 59 he came to court to give evidence. Reference to Ex.D13 to D16 and evidence of DW8 is made only to mention that no such earnestness could be noticed from the evidence of PW1 to say that he too was ready and willing to perform his part of the contract. Therefore mere issuance of notice as per Ex.P2 is not enough. The judgment of the Gujarat High Court in the case of Shah, Jitendra Nanalal is altogether in a different context, the principal question there was whether any sale of a surplus land in contravention of Section 5(3) of the Urban Land (Ceiling & Regulation) Act was null and void. There were two suits, and one ended in a compromise. In the suit made by the appellant, decree of specific performance was denied though other reliefs were granted and hence he came up in appeal. In that context, the Gujarat High Court held that a conditional decree for specific performance 60 could be granted. Therefore this decision is not applicable here.
54. The net effect of the discussion on the point under consideration is that the plaintiff’s readiness and willingness to perform his part of the contract is not proved. The trial court may not have given elaborate reasons on the issue, but its conclusion is correct, therefore point no.2 is answered in affirmative. POINT NO.3:
55. Before concluding, it may be stated that both side counsel also argued on the other issue relating to discretionary power of the court in granting the relief of specific performance placing reliance on too many authorities. When two main issues go against the plaintiff, there is no need to advert to Section 20 of the Specific Relief Act (as it stood before 61 amendment by Act 18 of 2018) and the authorities cited in this regard. Therefore the conclusion is that in view of discussion on points 1 and 2, there are no grounds to interfere with the impugned judgment. The appeal stands dismissed with costs. Sd/- JUDGE Kmv/sd