JUDGMENT
A.K. Sikri, J.
1. In this suit for specific performance and injunction filed by the plaintiff, following prayers are made:
(a) Pass a decree for specific performance in favor of the plaintiff and against the defendant directing the defendant to obtain lease deed from the office of the Delhi Development Authority and thereafter execute proper and requisite sale deed for transferring lawful and marketable title free from all encumbrances, right of ownership in respect of plot No. 37 area admeasuring 334 sq.mts.Sector-10, Dwarka Residential Scheme Dwarka, New Delhi. That this Hon’ble Court may further be pleased to direct that in case if the defendant fails, neglects, refuses or otherwise does not carry out the directions as prayed above, all such acts and things be carried out by any of the officials of this Hon’ble Court deems fit and proper in the facts and circumstances of this case.
(b) That in case if for any reason this Hon’ble Court comes to the conclusion that the plaintiff is not entitled to the relief of specific performance of agreement to sell dated 2.5.1996 in that even grant a decree for recovery of Rs. 32,00,000/- with 24% interest thereof be passed in favor of the plaintiff against the defendant with pendelite and future interest till the date of recovery of the amount.
(c) Grant of decree of permanent injunction in favor of the plaintiff and against the defendant while directing the defendant not to alienate, transfer, sell or encumber any right, title and interest in favor of any 3rd party except the plaint and not to dispossess the plaintiff from the suit property.
(d) Grant such other relief or reliefs which this Hon’ble Court may deem just and proper in the facts and circumstances of the present case.
2. According to the plaintiff, late Mr.Mange Ram, husband of the defendant was the owner and in possession of the agricultural land situate in the revenue estate of village Mehrauli, New Delhi. This land was acquired by the Union of India for the purpose of planned development of Delhi in the year 1961. There was large scale acquisition in the said year and the Government came out with the Scheme of Large Scale Acquisition, Development and Disposal of land under which alternative plots were allotted to the eligible persons whose lands were acquired. On acquisition of land late Mr. Mange Ram his case was also recommended by the Delhi Administration for allotment of alternative land. The DDA accordingly allotted a plot bearing No. 37 admeasuring 334 sq.mts., Sector-10, Dwarka Residential Scheme, Dwarka, New Delhi vide letter dated 12th January, 1996. However, before the possession of this land could be given to him, Mr. Mange Ram died and rights in the suit allotment were inherited by the defendant as all other legal heirs executed relinquishment deeds in her favor in respect of the sait property. Consequently, the DDA mutated the suit property in favor of the defendant and the defendant became the absolute owner thereof.
3. The defendant vide agreement to sell (hereinafter referred to as `the agreement’) dated 2nd May, 1996 agreed to sell the said property to the plaintiff for a total consideration of Rs. 32,00,000/-. A sum of Rs. 10 lacs was paid as earnest money on the same date. Out of this, Rs. 8 lacs were paid in cash and Rs. 2 lacs vide cheque bearing No. 000089 dated 2nd May, 1996 drawn on State Bank of Patiala, Bamnoli, New Delhi. The receipt of Rs. 10 lacs as earnest money was acknowledged in the agreement. Since certain payments were yet to be made to the DDA, it was also agreed in clause 2 of the agreement that out of the balance sale consideration to be paid to the DDA, the plaintiff shall deposit the amount of DDA as demanded against this plot and net balance amount shall be paid to the defendant within one month after the possession and execution of the lease deed of the aforesaid plot. The DDA raised a demand of Rs. 4,25,183/- on the defendant. The defendant approached the plaintiff with request to make the said payment. As agreed in the agreement, the plaintiff deposited this amount with the DDA vide pay order dated 9th May, 1996. With the deposit of this amount since the DDA was paid the entire amount demanded, possession of the suit property was given by the DDA to the defendant on 3rd July, 1996. After taking this possession, Mr. Sukhbir Singh, son of the defendant visited the house of the plaintiff on 18th July, 1996 and represented that the defendant was in great need of Rs. 5 lacs. The plaintiff accordingly paid Rs. 5 lacs to Mr. Sukhbir Singh which was accepted and acknowledged by him by executing a separate receipt. Thereafter, on 27th August, 1996 on the representation of the defendant to make balance payment, the balance amount of Rs. 12,74,817/- was also given. The defendant executed a separate receipt dated 27th August, 1996 acknowledging the receipt of this amount and handed over possession of the plot to the plaintiff along with the letter of possession of the same date. The defendant also executed various documents in favor of the plaintiff. After taking possession, the plaintiff constructed a boundary wall and one temporary room in order to safeguard the said property and also installed hand pump.
4. Since the lease deed in respect of the subject land was to be executed by the DDA in favor of the defendant and only thereafter the defendant could execute the sale deed in favor of the plaintiff, the plaintiff visited the office of the DDA on 2nd September, 1996 and enquired from the concerned dealing hand regarding execution of the lease deed of the property in the name of the defendant. He was told that necessary papers of the proposed lease deed were already sent to the defendant and she was requested to attend the office of the DDA for execution of the lease deed. Armed with this information, the plaintiff requested the defendant to visit office of the DDA for execution of the lease deed. The defendant promised that she would attend the office of DDA on 5th September, 1996 at 2PM. The plaintiff reached there at appointed date and time but the defendant did not attend the office of the DDA. On 6th September, 1996, the plaintiff again approached the defendant and questioned about her non-visit to the office of DDA on 5th September, 1996. She, however, refused to execute the lease deed. In these circumstances, legal notice was sent by the plaintiff’s counsel to the defendant which the defendant refused to accept the same and notice was returned back with the remarks ‘refused to accept’. Another reminder dated 13th October, 1996 was also sent through express courier which met the same fate. On 14th November, 1996, the defendant, her son and grandsons and their womenfolk visited the suit property and attempted to trespass into the said property. They even demanded further sum of Rs. 15 lacs from the plaintiff on the ground that the rates of property had gone up and threatened that otherwise the defendant shall sell the property to some other buyeRs. At this juncture, present suit was filed and it is stated that the plaintiff had already been ready and willing to perform his part of the obligation. In fact, according to the plaintiff, entire consideration has already been paid and only obligation is to bear the expenses of sale deed.
5. The suit came up for hearing on 28th November, 1996 when it was directed that summons be issued to the defendant for 27th January, 1997. Along with the plaint, the plaintiff also filed IA No. 11971/1996 under Order XXXIX Rule 1 & 2 CPC wherein exparte injunction order was passed restraining the defendant or their employees and representatives from alienating, transferring, encumbering with the whole or any part of the suit property and also from dispossessing the plaintiff from the suit property. This interim order is continuing.
6. After the receipt of the summons, the defendant put in appearance and filed written statement raising number of preliminary objections. Execution of the agreement dated 2nd May, 1996 is not denied. However, it is alleged that the same is void being contrary to public policy and otherwise unenforceable; the plaintiff is ineligible to hold or acquire plot in question in view of the provisions of Rule 43 of the Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981; the defendant has an imperfect title and, therefore, a bar to perform the contract; the agreement is also hit by provisions of Section 23 of the Contract Act and is, therefore, void; suit is not maintainable under Section 10 (a) & (b) of the Specific Relief Act; there was no delivery of possession as alleged by the plaintiff. It is also submitted that the relief of specific contract is a discretionary relief and cannot granted to a party who is guilty of approaching the court with unclean hands. According to the defendant, the plaintiff has converted the documents relied upon by him, such as, receipts and possession letter, namely, receipt dated 18th July, 1996 for Rs. 5 lacs allegedly issued by Mr. Sukhbir Singh and receipt dated 27th August, 1996 for Rs. 12,74,817/- and the possession letter of the said date allegedly issued by the defendant. Plea is made that the purported signatures and thumb impressions of the defendant and Mr. Sukhbir Singh be examined/verified from the Central Forensic Science Laboratory which shall reveal the truth. It is also contended that the suit is bad for non joinder of necessary parties and the DDA which is the necessary party, has not been imp leaded. Likewise, other legal heirs of late Mr. Mange Ram are not imp leaded. It is also contended that the defendant had no right to sell the plot without concurrence of other legal heirs of late Mr. Mange Ram. It is also contended that relief of mandatory injunction is not permissible. Valuation of the suit is also challenged on the ground that it is under valued.
7. On the basis of pleadings, following issues were framed on 28th September, 1999:
(i) Whether the alleged agreement dated 2.5.1996 is void, contrary to the public policy and unenforceable for being impossible for performance as alleged in para 1 of the Written Statement (Preliminary Objections)?
(ii) Whether the plaintiff is not entitled to hold or acquire the plot in suit in view of the provisions of Rule 43 of Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1983 as alleged in para 2 of the Written Statement (Preliminary Objections)?
(iii) Whether the impugned agreement dated 2.5.1996 is hit by the provisions of Section 23 of the Contract Act and as such as void and unenforceable as alleged in para 5 of the Written Statement (Preliminary Objections)?
(iv) Whether the suit is not maintainable in view of the provisions of Section 10 (a) & (b) of the Specific Relief Act as alleged in para 6 of the Written Statement (Preliminary Objections)?
(v) Whether there has been no delivery of possession over the suit property by the plaintiff to the defendant and as such there is no part performance of the contract as alleged in para 8 of the Written Statement (Preliminary Objections)? If so, its effect?
(vi) Whether the plaintiff has forged the documents and the same were never executed and issued by the defendant and her son as alleged in para 9 of the Written Statement (Preliminary Objections)?
(vii) Whether the suit is bad for non joinder of the necessary parties as alleged in paras 11 and 12 of the Written Statement (Preliminary Objections)?
(viii) Whether the defendant cannot sell the plot in suit without concurrence and exclusion of other LRs of late Shri Mange Ram as alleged in para 12 of the Written Statement (Preliminary Objections)? and para 5 of the Written Statement (Reply on Merits)? If so its effect?
(ix) Whether the plaintiff has always been ready and willing to perform his part of the contract as alleged in para 2 of the plaint?
(x) To what relief, if any, the plaintiff is entitled to?
8. During the proceedings, the defendant died on 13th June, 2001. The plaintiff, therefore, filed an application under Order XXII Rule 4 CPC for impleading her legal heirs as parties which was allowed vide order dated 30th October, 2002. The counsel for the legal heirs sought time to file amended written statement on their behalf. However, it was not filed and nobody appeared on the next date i.e. 21st February, 2003. The LRs of the defendant were accordingly proceeded exparte. However, thereafter, the LRs filed application for setting aside the exparte order which was allowed vide order dated 26th February, 2004 subject to payment of cost of Rs. 1,000/- and the LRs were permitted to take part in the proceedings. On 9th July, 2004 statement was made by the legal heirs/substituted defendants that the written statement already filed by the original defendant be read as written statement on their behalf as well. The case was accordingly set down for trial and vide order dated 18th January, 2005 Mr. Rajinder Singh Chaggar was appointed as the local commissioner to receive the statements of witnesses in examination-in-chief by way of affidavits and also to record the statements/cross-examination of the witnesses to be examined by the parties. The plaintiff examined his witnesses before the local commissioner. However, nobody appeared on behalf of the defendant before the local commissioner inspite of specific notices given to the legal heirs/defendants through counsel for various dates of hearings fixed by the local commissioner. Thus, the plaintiff’s witnesses were not cross-examined either. After recording the evidence of the plaintiff, the local commissioner filed the same along with his report. When the matter was listed before the court on 25th August, 2005 even on that date nobody appeared on behalf of the defendant. Since the report of the local commissioner had not been received court notice was issued to him for submitting his report and the case was adjourned to 9th December, 2005. On 9th December, 2005 also nobody appeared on behalf of the defendants. Report of the local commissioner had been received by the said date and after perusing the same and due to non-appearance of the defendants, order was passed proceeding exparte against the defendants. Arguments of learned counsel for the plaintiff were heard. The plaintiff wanted to support his submissions by written arguments and two weeks’ time was given to the plaintiff’s counsel to file his written arguments. He has since filed the written arguments as well.
9. After considering oral and written submissions of the learned counsel for the plaintiff and perusal of the record, my issue-wise findings are as under:
Issues No. 1,2 & 3:
10. These issues are interconnected and are taken up for consideration together. The genesis of the objection of the defendants, on the basis of which aforesaid issues are framed, are found in clause 5 (a) & (b) of the perpetual lease deed executed by the DDA in favor of Smt. Phutori Devi since deceased. This clause puts a restriction on the Lesser holder and bars sale of the leasehold land without the prior permission of the superior Lesser i.e. DDA/Union of India. This very clause came up for consideration before this court in the case of Kuldip Singh Suri v. Surinder Singh Kalra reported as . After referring to various judgments, the court brushed aside the argument that such an agreement was against public policy in the following words:
“Learned counsel for the plaintiff next submitted that assuming the transaction was one of argument to sell, the same is illegal in view of clause 6 of the perpetual sub lease. Clause 6 of the construction agreement in so far as it is relevant to the case in hand, reads as follows:
“6(a) The Sub-Lessee shall not sell, transfer, assign or otherwise part with the possession of whole or any part of the residential plot in any form or manner, benami or otherwise, to a person who is not a member of the Lessee.
(b) The Sub-Lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the residential plot to any other member of the Lessee except with the previous consent in writing of the Lesser which he shall be entitled to refused in his absolute discretion.”
It is a matter of common knowledge that in all sub leases executed on behalf of the President of India such like restrictive clauses have been incorporated. It is also a matter of common knowledge that due to such like restrictions the power of attorney sales in thousands have been effected. If the instant transaction is held to be illegal then in that eventuality thousands of such transactions on the same token would have to be declared as illegal. This would cause colossal loss and misery to the vendees. Though both the vendors and the vendees are in pari delicto, the vendors would be making capital out of their breach by getting back their properties which over the years have appreciated astronomically. It would be wholly inequitable to declare such agreements being violative of perpetual sub leases. Learned counsel for the plaintiff contended that the fetter imposed by clause 6 of the perpetual sub lease Ext.D-3 is meant to protect public interest as the land in Delhi has become a scarce commodity and therefore, any violation of the same would not only give impetus to the illegal sales but would also be conflict with public policy.
Argument though attractive must be repelled. Public policy is not a immutable concept. It must change with the march of time. The Supreme Court in Central Inland Water Transport Corporation Limited and Anr. v. Brojo Nath Ganguly and Anr. , has observed that public policy connotes some matter which concerns the public good and the public interest. The principles governing the doctrine of public policy must be and are capable, on proper occasion, of expansion or modification.
In Gherulal Parakh v. Mahadepdas Maiya and Ors. 1959 SC 781, to the Supreme Court summerising the doctrine of public policy observed as follows:-
The doctrine of public policy may be summarized thus: Public Policy or the policy of law is an illusive concept; it has been described as ‘untrustworthy guide’, ‘variable quality’, ‘uncertain one’, ‘unruly horse’, etc.
Thus it is clear that doctrine of public policy is a variable concept which must be fine tuned with demands of time and changing concerns for public good and public interest. Whether in the instant case the above said policy had achieved its desired goal is a question to be considered. The answer is not far to seek. Despite the incorporation of the restrictive clauses in the perpetual sub-leases executed by and between the DDA or L&DO on the one hand the sub lessees on the other properties have been changing hands though, what are known as, power of attorney sales. This has deprived the state of the stamp duty and registration fee chargeable on the sale deeds. Restrictions have created a situation where there is no incentive for observing honesty. Rather the policy has given boost to dishonesty. If such restrictive clauses did not exist, the sellers and buyers would have entered into straight and regular sale transactions resulting in generation of revenue for the State in as much as the buyers would have been liable to pay the stamp duty and registration fee. In practice the restrictive clauses have worked to the detriment of the State. In order to get over the restrictions a method of sale of the property through execution of power of attorneys, Wills, affidavits and agreements to sell has been devised. It may be mentioned that Government of India on February 14, 1992 has introduced a Scheme whereby lease hold properties acquired from the Government can be converted into free hold. This decision also provides for regularisation of power of attorney sales on payment of penalty. The Scheme originally applied to the DDA and the L&DO plots measuring 500 sq.meteRs. However, by a subsequent office order No. V.II-6/92 dated June 2, 1994 the Notification dated February 14, 1992 has been made applicable to plots up to 505 sq.meteRs. Therefore, by virtue of the office order plots measuring up to 505 sq.meters are to be treated as falling under the Scheme dated February 14, 1992. This policy decision of the Government is an eloquent testimony of the fact that the requirements of public interest change with the times and are not static. A time had come where in keeping with the ground realities the Government had to introduce a Scheme for regularising the sales on the basis of the power of attorneys. Experience shows that unnecessary restrictions add to deceitfulness in arranging ones affaiRs. The Government had rightly recognised the need for removal of such restrictions.”
11. Another contention that such an agreement would be void as no prior permission for entering into such a transaction was taken from DDA was also held as misconceived. The court observed:
“The argument of learned counsel for the plaintiff that if the transaction is considered to be an agreement to sell, then in that event the same would be clearly void as no prior permission for entering into such a transaction was taken from the DDA for the transfer of the land, is devoid of force. An agreement to sell does not amount to sale or transfer of the immovable property. Therefore, under clauses 6(a) and (b) of the perpetual sub lease, there is no bar for a sub lessee to enter into an agreement to sell. As per clause 6(a) if the sub lessee desires to sell or transfer an unbuilt plot to any person who is not a member of the lessee, he is required to take the consent in writing of the Lesser. The Privy Council in Motilal v. Nanhelal , laid down that if the vendor had agreed to sell the property which can be transferred only with the sanction of some government authority, the court has jurisdiction to order the vendor to apply to the authority within a specified period, and if the sanction is forthcoming to convey to the purchaser within a certain time. This proposition of law was followed in MRs. Chandnee Widya Wati Madden v. C.L. Katial , and R.C. Chandiok v. Chuni Lal Sabharwal . The Privy Council in Motilal v. Nanhelal (supra) also laid down that there is always an implied covenant on the part of the vendor to do all things necessary to effect transfer of the property regarding which he has agreed to sell the same to the vendee. In Ajit Prashad Jain v. N.K. Widhani and Ors. , this Court held that the permission from the Land & Development Officer is not a condition precedent for grant of decree for specific performance. While holding so this court relied upon the decision of the Supreme Court in MRs. Chandnee Widya Vati Madden v. Dr. C.L. Katial (supra) and Maharo Saheb Shri Bhim Singhji v. Union of India . At this stage it would be appropriate to reproduce the law laid down by this Court:-
“The permission from Land and Development Office is not a condition precedent for grant of decree for specific performance. In MRs. Chandnee Widya Vati Madden v. Dr. C.L. Katial the Supreme Court confirmed the decision of the Punjab High Court holding that if the Chief Commissioner ultimately refused to grant the sanction to the sale the plaintiff may not be able to enforce the decree for specific performance of the contract but that was no bar to the court passing a decree for that relief. The same is the position in the present case. If after grant of the decree of specific performance of the contract the Land and Development Office refuses to grant permission for sale the decree holder may not be in a position to enforce the decree but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract. I may also notice that Section 27(1) of the Urban Land (Ceiling and Regulation) Act, in so far as it imposes a restriction on transfer of any urban or unbanisable land with a building or a portion of such building, which is within the ceiling area, was declared invalid by Supreme Court in Maharo Sabheb Shri Bhim Singhji v. Union of India , and as such it may not be necessary to obtain permission under the said Act but that is not a matter with which I am concerned at this stage. Assuming such a permission is required that would be a matter for consideration after passing of the decree and at the stage of execution. No fault can be found out with the plaintiff’s anxiousness to take possession in terms of the agreement on payment of the amounts stipulated therein.
Therefore, having regard to the principle laid down in the above said decision of the Privy Council, which was subsequently reiterated by the Supreme Court and various High Courts, appropriate direction can be issued to the vendor to apply for permission of the appropriate authority as required under clauses 6(a) and (b) of the sub lease.”
12. As noted above, in the present case, the defendant has pressed into service the same restrictive clause which is dealt with in the aforesaid judgment. In view of the above authoritative pronouncement of this court, the objections taken by the defendants are devoid of any merit. It is further held therein that the permission from the office of the DDA is not a condition precedent for grant of decree of specific performance. The court can direct the vendor to apply to the office of DDA for permission. If the DDA ultimately refuses to grant the sanction of the sale, the plaintiff may not be able to enforce the decree for specific performance of contract but that was not a bar to the court passing a decree for that relief. During the pendency of the suit the deceased defendant obtained a perpetual lease deed in her favor from the DDA. There is an implied covenant on the part of the vendor to do all things necessary to effect transfer of the property regarding which he has agreed to sell the same to the vendee. Therefore, under clause 5 (a) & (b) of perpetual lease there is no bar for a lessee to enter into agreement to sell. As per clause 5 (a) if the lessee desires to sell or transfer an unbuilt plot to any person, he is required to take the consent and writing of the Lesser. Thus the agreement to sell is enforceable and is not contrary to public policy and the agreement to sell dated 2nd May, 1996 is not hit by the provisions of the Indian Contract Act.
13. Issues No. 1 to 3 are, therefore, decided in favor of the plaintiff and against the defendants.
Issue No. 4:
14. Onus to prove this prove was on the defendants. It was for the defendants to demonstrate as to what were the circumstances which could compel the court not to pass the decree for specific performance. The defendants have not led any evidence. It may be noted that the explanation to Section 10 of the Specific Relief Act categorically provides that the breach of contract to transfer of immovable property cannot be adequately relieved by the compensation in money unless and until contrary is proved. It was for the defendants to rebut this statutory presumption which they have failed to do so. This issue , therefore, stands in favor of the plaintiff and against the defendants.
Issue No. 6:
15. It would be appropriate to deal with this issue before coming to the issue No. 5. This issue is because of the allegation of the defendants that two receipts and letter of possession are forged. It may be noted that the execution of the agreement is not in dispute. On the same date, cheque dated 2nd September, 1995 was given for Rs. 2 lacs and the said cheque was encashed is also not in dispute. In the agreement the defendant has acknowledged payment of Rs. 8 lacs in the form of cash as well. Receipt of Rs. 2 lacs is otherwise also proved by producing a certificate dated 8th September, 1996 issued by the State Bank of Patiala, Bamnoli Branch (Ex.PW-1/4). The plaintiff has also proved payment of Rs. 4,25,183/- to the DDA directly as Ex.PW-1/5. It was given to the DDA by the plaintiff vide application dated 10th May, 1996 (Ex.PW-1/6). In this backdrop, I may refer to the disputed receipts. The plaintiff produced original agreement dated 2nd May, 1996 which is Ex.PW-1/2 which bears the thumb impressions of the defendants at points B to B-2 and the same is also witnessed by the son of the defendant Mr. Sukhbir Singh and Mr. Ishwar Singh and the receipt of Rs. 10 lacs is also produced on record in original which is Ex.PW-1/3 and said receipt also bears the thumb impressions of the deceased defendant at point A and witnesses Mr. Sukhbir Singh and Mr. Ishwar Singh. The plaintiff has proved the above said documents by producing the original as the primary evidence and also proved the contents of the same by calling the attesting witnesses.
16. In so far as receipt dated 18th July, 1996 executed by Mr. Sukhbir Singh is concerned, which is Ex.PW-1/7, it is stated that his signatures appear at point A. The plaintiff has proved the said receipt by producing the original as a primary evidence and also proved the contents of the said receipt by calling the attesting witness Mr. Ishwar Singh. Likewise, receipt of Rs. 12,47,817/- is proved as Ex.PW-1/8 and a categorical statement is made that the said receipt bears the thumb impression of Smt. Phutori Devi at point A and the same is also witnessed by Mr. Ishwar Singh and Mr. Sukhbir Sigh and same is also having the photographs of deceased defendant at point E and the said receipt is Ex.PW-1/8.
17. Likewise, the plaintiff has led the evidence to show that possession letter dated 27th August, 1996 (x.PW-1/9) bears the thumb impression of the deceased defendant at point A and the same is witnessed by Mr. Ishwar Singh at points C & D and also having the photographs of the deceased defendant at point E. There is no cross-examination to the plaintiff’s witnesses and the testimony of the plaintiff has gone unrepresented. The defendants have also not taken any steps for getting the said document examined through the Central Forensic Science Laboratory. It may be noted that the onus of proving this issue was on the defendants and they have miserably failed to discharge this onus. The plaintiff, on the other hand, has proved these documents through his witnesses. The testimony of the plaintiff’s witnesses, which is not disputed at all, is to be believed in view of the law laid down in the following judgment of the Calcutta High Court in the case of A.E.G. Carapiet v. A.Y. Derderian reported as wherein the Calcutta High Court held that wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. This is not merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. This much a counsel is bound to do when cross-examining that he must put to each of his opponent’s witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. In the present case, the defendants have failed to cross-examine the plaintiff’s witnesses.
18. Likewise, in the case of Bijai Ram Kanshi Ram and Anr. v. Jai Ram Ganga Ram and Anr. reported as , the legal position was reiterated in the following manner:
“The statements of the above three witnesses were recorded on commission. The defendant, despite notice, did not appear before the Commissioner in person, or through pleader. Consequently, these witnesses were not cross-examined. The result would be that the evidence of these witnesses must be accepted, unless there are some inherent improbabilities.
In any authority is necessary for this proposition, reference may be made to -`Karnidan Sarda v. Sailaja Kanta Mitra’ AIR 1940 Pat 683 (K), where a Division Bench of that High Court observed that:
It cannot be too strictly emphasised that the system of administration of justice allows of cross-examination of opposite party’s witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be accepted unless of course, there are any inherent improbabilities.
19. Therefore, this issue also stands decided in favor of the plaintiff and against the defendants.
Issue No. 5:
20. Once it is established that the defendants had executed letter of possession and had received the entire consideration, it almost follows as a matter of consequence that the possession of the suit property was given by the defendants to the plaintiff. In addition, there is an unchallenged testimony of the plaintiff in this behalf. Therefore, this issue is also decided in favor of the plaintiff and against the defendants.
Issues No. 7 & 8:
21. Present suit is a suit for specific performance of the agreement executed between the plaintiff and the defendants. In the said agreement, neither the DDA nor the sons and daughters of late Mr. Mange Ram were the parties. Further, all the sons and daughters of deceased Mange Ram executed a relinquishment deed dated 16th February, 1996 in favor of the deceased defendant Smt. Phutori Devi by which they relinquished their all rights, title and interest in respect of the suit plot in favor of the deceased defendant and said document is also registered before the Sub-Registrar-III, Delhi. Certified copy of the said relinquishment deed is already on record as Ex.PW-1/1. The plaintiff has proved the said relinquishment deed by producing the certified copy of the same. On the basis of the said relinquishment deed the name of the deceased defendant Smt. Phutori Devi was also entered in the mutation in respect of the plot in question in the record of DDA. Hence, neither the DDA nor the other legal heirs of deceased Mange Ram are the necessary and proper party in the present suit as alleged in the written statement. In any case, after the death of Smt. Phutori Devi all the other legal heirs of deceased Mange Ram were also brought on record. However, they chose not to file their separate written statements or led any evidence in support of the above said objection. Hence, the issues No. 7 and 8 are decided in favor of the plaintiff and against the defendants.
Issue No. 9:
22. It has already been established from the findings recorded on the previous issues that the plaintiff has paid the entire consideration, therefore, readiness and willingness on the part of the plaintiff only relates to incurring the expenditure towards execution and registration of the sale deed. Specific averment is made in this behalf in the plaint. It is also specifically stated by the plaintiff that he is ready and willing to do all the necessary acts for the execution and registration of the sale deed.
23. Therefore, this issue also stands decided in favor of the plaintiff and against the defendants.
Relief:
24. In view of the findings recorded on the aforesaid issues, the plaintiff is entitled to the decree of specific performance of the agreement to sell dated 2nd May, 1996. Decree as prayed for is accordingly passed. The defendants are directed to execute the sale deed in favor of the plaintiff; in respect of the suit property the expenses thereof shall, however, be borne by the plaintiff. This decree would further be subject to the DDA granting permission by the DDA to execute the sale deed in favor of the plaintiff. However, the defendants are directed to apply to the DDA for permission to sell the suit land to the plaintiff. In case the defendants fail to make such an application within one month from the date of this judgment and decree, the plaintiff shall be entitled to take such steps on behalf of the defendants. The plaintiff shall also be entitled to costs. Decree be drawn in these terms.
25. Suit is disposed of accordingly.