Suit No.1808 of 1981. Case: Virsen Balwantsingh Solanki, carrying on business in the name and style of Bombay Land Developments Corporation Vs Ratansey Jaikaran Pandey (Pushpadevi Rajesh Mishra, a daughter of Bimalkumar Ratansey Pandey and Triveni alias Bagelu Son of Ratensy Pandey), Babulnath Jadunath Pandey and Mahabali Jaikaran Pandey (Devendrakumar Mahabali Pandey). High Court of Bombay (India)

Case NumberSuit No.1808 of 1981
CounselBharti A Desai, D D Madon, H J Engineer, K H Modi, S P Thorat
JudgesR.Y. Ganoo, J.
IssueEvidence Act - Sections 63(3) and 65; Indian Registration Act; Urban Land (Ceiling and Regulation) Act; Bombay Stamp Act
Judgement DateAugust 12, 2010
CourtHigh Court of Bombay (India)

Judgment:

R.Y. Ganoo, J.

The plaintiff had instituted this suit for specific performance of Agreement dated 28th January, 1979 against the original defendant Nos. 1 to 3 on the ground that original defendant Nos. 1 to 3 had by Agreement dated 28th January, 1979 (hereinafter referred to as the suit agreement) agreed to sell the property described in para 2 of the plaint (hereinafter referred to as the suit property) for total consideration of Rs. 3,81,000/-. During the pendency of the suit, defendant No. 1 expired and his heirs were brought on record as defendant Nos. 1A and 1B. Similarly, defendant No. 3 expired and his heir was brought on record as defendant No. 3A.

On 1st September, 2006 consent terms were arrived at between plaintiff and defendant No. 3A and consent decree was passed on 19th June, 2007 between plaintiff and defendant No. 3A. The Plaintiff and defendant No. 1A and 1B desired to arrive at settlement and file consent terms so as to grant decree in favour of the plaintiff as regards rights of the plaintiff to have specific performance against defendant Nos. 1A and 1B. Accordingly, consent terms dated 10th January, 2008 were placed on record duly signed by the plaintiff on one hand and defendant Nos. 1A and 1B on the other and this Court passed consent decree on 15th January, 2008 against defendant Nos. 1A and 1B as regards prayer for specific performance of the suit agreement in regard to the suit property. This mean, defendant No. 1A and 1B after having stepped into the shoes of defendant No. 1 and defendant No. 3A after having stepped into shoe of defendant No. 3, consented for executing the Sale Deed in favour of plaintiff pursuant to the suit agreement. No formal conveyance is executed by defendant No. 1A, 1B and 3A in favour of the plaintiff as the decrees were to act as conveyance. The suit remained pending against defendant No. 2 as defendant No. 2 wanted to contest the suit.

It is to be noted that defendant No. 2 had taken out Notice of Motion No. 3824 of 2008 so as to seek permission to file written statement after condonation of delay in filing in filing the written statement. Said motion was dismissed by speaking order dated 20th January, 2009. Against the said order, defendant No. 2 filed appeal, however, he lost therein. As a result of this, defendant No. 2 was precluded from filing written statement and the suit proceeded without filing written statement. The plaintiff has approached the Court with a positive case that apart from the three persons against whom he had filed suit, there was one more person who had rights in respect of the suit property and his name was Mr. Shivbali J. Pandey. According to plaintiff, after the death of said Shivbali Pandey, his wife Tulsadevi stepped into the shoes of said Shivbali Pandey and she had entered into consent terms for selling her share to the plaintiff. Accordingly, plaintiff obtained from said Tulsadevi consent terms dated 1st April, 1986. It is also the case of the plaintiff that on the said document titled as consent terms, defendant No. 2 had tendered his signature thereby consenting to have a decree against him in regard to the suit property. This document titled as consent terms has been taken on record and marked as Exh.P-2. It is to be noted that the suit was not filed against Tulsadevi and these consent terms were not taken on record and order in terms of consent terms was not obtained. The plaintiff in the course of trial has heavily relied upon this document to show the existence of the suit agreement, desire on the part of defendant No. 2 to consent for a decree and admission of the fact that full consideration was paid to Tulsadevi and defendant No. 2. This document was also relied upon to contend that possession of the suit was handed over after this document in the nature of consent terms was signed. Defendant No. 2 has challenged this document. Fact remains that this document was not used to secure a consent decree. In the year 2008, plaintiff took out Notice of Motion No. 1247 of 2008 praying that on the strength of the aforesaid document Exh.P-2 this Court should pass a decree on the ground that defendant No. 2 has tendered his signature on the consent terms and has manifested his intention to consent for a decree. Eventually, plaintiff withdrew said Notice of Motion. The suit was then taken up for hearing on merits.

As the suit was to proceed on merits directions were given to enable the parties to proceed for trial. Accordingly, plaintiff filed his evidence affidavit as well as compilation of documents. The Commissioner was appointed to record the evidence. It is to be noted that the documents on which the plaintiff wanted to rely upon were not marked as exhibits and/or for identification before sending the suit for recording of evidence. It is to be noted that defendant No. 1 had not filed written statement as such he was not entitled to cross-examine the plaintiff's witness i.e. plaintiff PW-1 on factual aspect of the matter. This aspect missed the attention of the Commissioner as well as the plaintiff. Defendant No. 2 was permitted to cross-examine plaintiff PW-1. After the cross-examination on the part of defendant No. 2 was over, plaintiff closed his case. Defendant No. 2 did not lead any evidence. The matter was transferred to the Court for hearing of the arguments.

This Court noted the fact that the documents on which plaintiff wanted to rely upon have not been marked as exhibits. With the consent of learned advocates on both sides, the documents were taken up for marking and documents came to be marked as exhibits or for identification. In all, five documents came to be marked as exhibits as Exhs. P-1 to P-5. Exh. P-5 is a typed copy of suit agreement. After this exercise was carried out, it was noticed that in the course of cross-examination of PW-1, certain questions were asked by the learned advocate for the defendant No. 2. Objections thereto were raised by learned Counsel for the plaintiff. It was necessary to rule on each objection. That exercise was conducted by this Court and by a detailed order dated 5th August, 2010 various objections were attended to. After the aforesaid exercise was carried out, the matter was taken up for hearing of the arguments.

The plaintiff approached this Court stating that the three defendants entered into a suit agreement dated 28th January, 1979 for sale of the suit property though in the prayer clause, the date of the agreement was typed as 15th March, 1980. It is noticed that this typographical mistake was not noticed by the plaintiff till decree came to be passed against defendant No. 1A, 1B and defendant No. 3A. Plaintiff took out chamber summons and Court passed an order allowing amendment to change the date from 15th March, 1980 to 28th January, 1979. This amendment was granted before recording of evidence commenced. Defendant No. 2 did not challenge the order by which aforesaid amendment was granted. Though some arguments were advanced on this aspect of the matter, said argument cannot be accepted on the ground that there is no challenge to the order by which amendment was granted.

Defendant No. 2 has not filed written statement in the circumstances mentioned aforesaid. Hence, while considering the matter on merits, it was not necessary for the Court to frame formal issues and that is how in the present suit no formal issues have been framed.

The plaintiff gave concession to the defendant No. 2 and conceded that cross-examination conducted by defendant No. 2 can be read at the stage of hearing of the arguments. It appears that this was done by the plaintiff to have the suit decided at an earlier date. Hence, this Court has read the cross-examination conducted by advocate for defendant No. 2 while deciding the matter. The documents relied upon by plaintiff have been marked as Exhibits/for identification after hearing learned Counsels on both sides and by passing a speaking order dated 30th April, 2010.

The plaintiff claims that original defendant Nos. 1 to 3 were joint owners in respect of the suit property and they had agreed to sell the suit property to the plaintiff and were to receive consideration of Rs. 3,81,000/-. It is to be noted that defendant Nos. 1A, 1B and...

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