BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/11/2011 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.(MD) No.43 of 2006 and C.M.P.(MD) No.284 of 2006 and M.P.(MD) No.1 of 2009 Alageswari ... Appellant/Plaintiff Vs. 1.Athimuthu Manoharan 2.Grace Vedamanicka Nadar 3.Navaneethi ... Respondents/Defendants Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree of the learned Principal District Judge, Thoothukudi dated 18.06.2003 in A.S.No.14 of 2002 confirming the judgment and decree of the learned Principal District Munsif, Thoothukudi dated 26.09.2001 in O.S.No.319 of 1997. !For Appellant ... Mr. Senior Counsel for Mr.S.Kadarkarai ^For 1st Respondent ... Mr.S.Sivathilakar For Respondents 2 & 3 ... Mr.S.Subbiah * * * * * :JUDGMENT
This Second Appeal is focussed by the original Plaintiff animadverting
upon the judgment and decree dated 18.06.2003, passed in A.S.No.14 of 2002 by
the learned Principal District Judge, Thoothukudi in confirming the judgment and
decree dated 26.09.2001, passed in O.S.No.319 of 1997 by the learned Principal
District Munsif, Tuticorin.
2. The parties, for the sake of convenience, are referred to hereunder
according to their litigative status and ranking before the trial Court.
3. The facts giving rise to the filing of this Second Appeal as stood
exposited from the records would run thus:
The plaintiff filed the suit for specific performance of the suit
agreement to sell dated 20.12.1995, which emerged between D1, the Power Agent of
D2 and the plaintiff.
4. The 1st defendant filed written statement, supporting the case of the
plaintiff.
5. The 2nd defendant filed the written statement resisting the suit on the
ground that the agreement to sell is an anti-dated document, which emerged after
the cancellation of the power deed executed by D2 in favour of D1.
6. The 3rd defendant, who purchased the second item of the suit
properties, separately filed written statement supporting the contentions of D2.
7. Whereupon, relevant issues were framed by the trial Court.
8. During trial, the plaintiff examined herself as P.W.1 along with P.W.2
and marked Exs.A.1 to A.5 on her side. The defendants 1 and 2 examined
themselves as D.W.1 and D.W.2 along with D.W.3 and marked Exs.B.1 to B.32 on
their side.
9. Ultimately, the suit was dismissed by the trial Court, as against which
the appeal was filed by the plaintiff for nothing but to be dismissed.
10. Being aggrieved by and dissatisfied with the judgment and decree of
the first appellate Court, the plaintiff preferred this Second Appeal on various
grounds, suggesting the following substantial questions of law:
“(A) Whether the 2nd defendant is entitled to let in evidence against the
terms and conditions of registered power of attorney deed dated 18.05.1995?
(B) Whether the 2nd defendant has power to cancel the deed of power of
attorney especially when she has received the entire sale consideration under
Ex. 12 which is not disputed?
(C) Whether the finding of the lower court that the sale agreement is not
proved in view of the admitted fact that the plaintiff is in possession?
(D) Whether the courts below right in holding that the suit property are
not in existence when Annakannu Ariso Rani has not questioned the same?
(E) Whether D2 has right to sell the property under Ex.B.14 in view of
Ex.B.12?
(F) Whether the lower appellate court is correct dismissing the
application to appoint commissioner to measured and note to physical features of
the suit property?”
(Extracted as such)
11. My learned Predecessor appointed an advocate Commissioner, during the
pendency of this Second Appeal to visit the suit property, measure it and submit
a report. Wherefore the Advocate Commissioner also submitted a report.
12. I would like to fumigate my mind with the principles as found
enunciated and enshrined in the following decisions of the Honourable Apex
Court:
(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court
Cases 545.
(ii) Kashmir Singh v. Harnam Singh and another reported in 2008 (4) SCALE
300.
(iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1.
13. The aforesaid precedents would indicate and exemplify that unless any
substantial question of law is involved, the question of entertaining a Second
Appeal would not arise. Having that in mind, I heard both sides.
14. Learned Senior Counsel for the appellant/ plaintiff advanced his
arguments, the pith and marrow of which would run thus:
Both the Courts below failed to take into consideration the relevant
documents in the proper perspective in deciding the lis. Quite against the terms
and conditions of the power deed, D2 adduced evidence before the Court. D2 had
no power to cancel the power deed executed by D2 in favour of D1. Even though
the plaintiff has been in possession and enjoyment of the suit property, the
Courts below held as though the agreement to sell was not proved to be a genuine
one. The Courts below were not justified in holding that the first item of the
suit properties is a non-existent one. Annakannu Athirshtarani, already
purchased property from D2 through D1 on the western side of the entire extent
of 12 cents of land. D2 had no right to sell under Ex.B.14, the eastern extreme
of the said 12 cents of land in view of Ex.B.12 the agreement having been
executed by D2 in favour of D1. The building bearing door Nos.2/127A has been in
existence long prior to the emergence of the power deed and the suit agreement
to sell. However, both the Courts below failed to take note of the said fact and
simply went tangent in deciding against the plaintiff.
15. The learned counsel for D1 would support the arguments of the learned
Senior Counsel for the plaintiff.
16. In a bid to shoot down and mince meat, torpedo and pulverise the
arguments as put forth and set forth on the side of the plaintiff and D1, the
learned Counsel for D2 and D3 would advance his arguments, the long and short of
it would run thus:
(a) As against the concurrent findings of the fact that Ex.A.1 – the
agreement to sell is an anti-dated and cooked up document, no Second Appeal
would lie and absolutely there is no perversity or illegality in such finding.
(b) Ex.A.1 is apparently found written on non-judicial stamp paper dated
20.12.1995, alleged to have been purchased from a stamp vendor in Srivilliputhur
but actually the document is purported to have been executed at Thoothukudi,
which is 118 Kms. away from Srivilliputhur.
(c) In fact the unregistered sale deed – Ex.A.2, purported to have emerged
on 08.08.1997 in favour of the plaintiff at the instance of D1 is also a cooked
up document, which came into existence only after the cancellation of the power
deed – Ex.A.3 by D2 as per Ex.B.25 dated 03.10.1997. The scribe as well as the
attesting witnesses in A1 and A2, is one and the same.
(d) The Courts below adverted to all these documents appropriately and
appositely, properly and correctly and rendered a finding of fact that after
cancellation of Ex.A.3 – the power deed dated 18.05.1995, by D2 as per Ex.B.25
dated 03.10.1997, those documents, viz. Exs.A.1 and A.2 were concocted and
brought about.
(e) D1 had not sought any relief based on Ex.B.12. D.W.2 (D2), explained
and expounded as to how D2 was brought about illegally by D1. According to her,
D1 misused the confidence reposed by D2 on D1 and got her signature while she
was signing one other deed and in fact she did not receive Rs.38,500/- from D1
as full and final settlement of the sale consideration in respect of the suit
property.
(f) The power deed Ex.A.3 does not contemplate the first item of the suit
properties as found set out in Ex.A.1, the suit agreement.
Accordingly, the learned counsel would pray for the dismissal of the Second
Appeal.
17. The nutshell admitted and unassailable or at least the undeniable
facts absolutely necessary and germane for the disposal of the Second Appeal
would run thus:
D2 claimed to be the original owner of 12 cents of land. But the
Commissioner’s Report would reveal that in stricto-sensu, she was owning only an
extent of 11.43 cents on ground. Admittedly, as per Ex.A.3, dated 18.05.1995,
the power deed executed by D2 in favour of D1, the later executed a sale deed in
favour of Annakkan Athirshtarani an extent of 3 cents of land on the western
extreme of the total extent of the said 12 cents. As such, there remained only 9
cents. D2 directly sold to D3 an extent of 6 cents to the east of the aforesaid
3 cents. Ex.A.3, the power deed bears the followed description of properties:
“jgrpy; tptuk;
J]j;Jf;Fo gjpt[ khtl;lk;, J]j;Jf;Fo BkY]h; rhh;gjpthsh; rufk;, J]hj;Jf;Fo
jhYfh, Bfhuk;gs;sk; fpuhkk; gFjp 1 Bfhuk;gs;sk; Cuhl;rp kd;wk; 2tJ thh;L bjw;Fj;
bjUtpy; i& fpuhkk; FoapUg;g[ ej;jk; rh;Bt 28 ek;ghpy; vdf;F ghj;jpag;gl;l
kidapy; Bkw;fila cs;s kid tPL tifawhf;fSf;F khyhtJ:
fpHBky; bjUt[f;F tlf;F ehsJ Bjjpapy; ehd; etepjp mth;fSf;F fpiuak; bra;J bfhLf;Fk; kidf;Fk; Bkw;F 31/4 ek;ghpy; cs;s kid tPL tifawhf;fSf;F fpHf;F gp.uh$ghz;o, gp.Btjkzp nth;fs; kid tPL tifawhf;fSf;F bjw;F
ne;j ehd;F khYf;Fs;gl;l kid brz;L 3f;F rJuo 1306.87 cs;s kida[k; i&
kidapy; fspkz; Rth; itj;J Bky; XL bghl;l gq;rhaj;J Bghh;L 2/127 ek;gh; Vw;gl;l
tPLk;, kpd; nizg;g[k;, gps&t[l; ff;T!; cs;go nJt[k;,
2. i& i& tptug;go i& rh;Bt ek;ghpy; fpHf;fila cs;s kidf;F khy;:
fpHBky bjUt[f;Fk; tlf;F gp.uh$ghz;o, gp.Btjkzp nth;fs; kidtPL tifawht[f;Fk; bjw;F bjd;tly; re;Jf;Fk; Bkw;F ehsJ Bjjpapy; etepjp mth;fSf;F fpiuak; bra;J bfhLf;Fk; kidf;Fk; fpHf;F
ne;j ehd;F khYf;Fs;gl;l kid brz;L 3 mst[s;s kida[k; Mf bkhj;jk; mapl;lk;
2f;F brz;L 6 mst[s;s kida[k; jgrpy; tptuk; rhp. i& brhj;J jw;fhy rg;otp&d;go
rh;Bt 28/5 ek;ghpy; cs;sJ.”
18. Ex.B.12, the agreement dated 20.05.1995 emerged between D1 and D2;
wherein the recitals would demonstrate and display, exemplify and project that
D1 paid a sum of Rs.38,500/- as full sale consideration for the properties found
described in Ex.A.3 to D2, which fact D2 would dispute as though she only signed
Ex.B.12 unknowingly and that she did not receive any amount much less the said
sum of Rs.38,500/- from D1.
19. The contention of the plaintiff is that on 20.12.1995, D1 executed
Ex.A.1 – the agreement to sell, in respect of the following items of properties:
“jgrpy;
J]j;Jf;Fo hpo, J]j;Jf;Fo BkY]h; rg;;hp rufk;, J]hj;Jf;Fo tl;lk;,
Bfhuk;gs;sk; fpuhkk; gFjp-1 Bfhuk;gs;sk; Cuhl;rp kd;wk; 2tJ thh;L bjw;F bjUtpy;
i& fpuhkk; FoapUg;g[ ej;jk; rh;Bt 28 ek;ghpy; brzL 12y; Rthd;jhuUf;F
ghj;jpag;gl;l kidapy; Bky;g[uk; kj;jpapy; kid kid tPL tifawhf;fSf;F khy;:
md;df;fd; mjph;&luhzpf;F ehd; fpiuak; bra;J bfhLj;jpUf;Fk; kid tPL
tifawhf;fSf;Fk; fpHf;F, etepjp mth;fs; kid epyj;Jf;Fk; Bkw;F, fpHBkByhoa
Buhl;Lf;Fk; tlf;F, gp.uh$ghz;o, gp.Btjkzp nth;fs; kidtPL tifawhf;fSf;Fk; bjw;F,
ne;j ehd;F khYf;Fs;g;gl;l kid epyk; fpHBky; tljiy ypA;!; 19 i& bjd;jiy ypA;!; 17
fpHBky; tlg[uk; brhe;jr;Rth; kuhkj;J Btiy bra;a bjd;tlypy; tlf;fila
Bghlg;gl;Ls;s 3 ypA;!; mfy kid cl;gl Bky;jiy ypA;!; 66, i& fPH;jiy ypA;!; 66f;F
rJu ypA;!; 1,188f;F rJuo 517.492f;Fr; brz;L 1.188 mst[s;s kid epyKk; mjpy;
fl;oa[s;s fy;fhiuf;fl;L Xl;lLf;F Bghl;l gq;rhaj;J 2/127V ek;gh; Vw;gl;l tPL 1k;
nJt[k;,
2) i& i& i& fpuhkk;, FoapUg;g[ ej;jk;, rh;Bt 28 ek;ghpy; brz;L 12y;
Rthd;jhh;f;F ghj;jpag;gl;l kidapy; fpHf;fila kid epyj;Jf;F khy;: etepjp mth;f;s
kid epyj;jpw;Fk; fpHf;F, bjd;tly; re;Jf;Fk; Bkw;F, fpHBkByhoa Buhl;Lf;F tlf;F,
gp.Btjkzp mth;fs; kid tPL tifawhf;fSf;Fk; bjw;F, ne;j ehd;F khYf;Fs;g;gl;l kid
epyk; fpHBky; tljiy ypA;!; 27 i& bjd;jiy ypA;!; 30 tlg[uk; fpHBky; brhe;jr;Rth;
kuhkj;J Btiy bra;a bjd;tlypy; tlf;fila Bghlg;gl;Ls;s 3 ypA;!; mfy kid cl;gl
Bky;jiy ypA;!; 67 i& fPH;jiy ypA;!; 67f;F rJu ypA;!; 1909.5f;F rJuo 831.778f;F
brz;L 1.90 mst[s;s kid epyKk; mjpy; tlg[uk; fpHBky; brhe;j fhk;gt[z;l; RtUk;,
thifkuk; 1k;, ePuof; fHpg;gplk; 1k; cs;go jgrpy; tpguk; rhp.
i& brhj;J ehsJ cl;ghptpd;go rh;Bt 28/5 ek;ghpy; cs;sJ. J]hj;Jf;Fo
K.kh.c.ePjpkd;w K.c.t.vz;.545/91 Bfhh;l; fhgp b$uhf;!; i& Rthd;jhh; vdf;F vGjpf;
bfhLj;j 108/1995 ek;gh; b$duy; gth; gj;jpuk; b$uhf;!; fhgpa[k; Rthd;jhh; fpBu!;
khpak;khs; bgaUf;Fhpa gl;lht[k; ehd; jA;fsplk; je;Js;Bsd;.”
20. It has to be noted that the first item of the properties as found set
out in Ex.A.1 does not tally with the first item of the properties found
exemplified in Ex.A.3. In fact, after selling the said 6 cents of land in the
middle, which is to the east of the property sold to said Annakkan
Athirshtarani, there was no land. However, the building bearing door No.2/127A
is claimed to be in existence as per Ex.A.1. Under the earlier sale deed in
favour of Annakkan Athirshtarani, there is no reference to the structure bearing
door No.2/127A and for that matter the building bearing door No.2/127A is not
contemplated in the power deed also.
21. Based on such fact, the learned counsel for D2 and D3 would vehemently
argue that D1, the power of attorney was not authorised to sell the land as well
as the building bearing door No.2/127A at all, but he purely for the purpose of
putting D2 in trouble did choose to incorporate such description as the first
item of the properties in Ex.A.1. No doubt that is also a fact to be considered.
Apparently there was no land belonged to D2 at all to the west of the said 6
cents sold by D2 to D3 to the east of the 3 cents sold to Annakkan
Athirshtarani.
22. Admittedly, the plaintiff is none but D1’s wife’s brother and that
fact was taken note of by the Courts below and also commented upon that there
was nothing to indicate that out of the sale consideration of Rs.21,000/-, a sum
of Rs.20,000/- was paid by plaintiff in favour of D1. No doubt, one of the
attesting witness to Ex.A.1 as well as Ex.A.2 – Pandi was examined and cross-
examined. But there is no adequate explanation at all as to why for the purpose
of scribing Ex.A.1, the non-judicial stamp paper should have been purchased only
at Srivilliputthur, which is 118 Kms. from Thoothukudi, the situs of execution
of Ex.A.1.
23. If really Ex.A.1 emerged on 20.12.1995 genuinely and that too in
consideration of having paid a sum of Rs.20,000/- out of the total sale
consideration of Rs.21,000/- by the plaintiff to D1, certainly neither the
plaintiff nor D1 would have waited further for completing the sale in the form
of a pukka registered sale deed. The preponderance of probabilities would govern
the adjudication in civil case. If accordingly viewed, D1 would have had no
reason to hesitate to execute the sale deed in favour of the plaintiff on
receipt of the pitherance so to say Rs.1,000/- being the remaining sale
consideration from the plaintiff. Ex.A.2 alleged to have been emerged on
08.08.1997, long prior to the cancellation of the power deed under Ex.B.25 by D2
as against D1. The principle on Res Ipsa Loquitur could rightly be applied in
this factual scenario.
24. I recollect the popular adage, ‘witness might lie, but the
circumstances would not do so’. Disaster is found written on Exs.A.1 and A.2 in
the wake of the peculiar facts and circumstances involved in this case.
25. No doubt, there erupted some misunderstanding between D1 and D2, but
D1 had not chosen to initiate any legal action. Ex.B.5, dated 28.10.1997, the
copy of the letter would reveal that D1 sent a reply to D2’s letter regarding
the cancellation of power deed and in that he narrated the facts that he entered
into an agreement to sell with the plaintiff and also executed a sale deed in
her favour which remained unregistered for which, no doubt D2 did not reply. But
the learned counsel for D2 and D3 would submit that such a letter i.e., Ex.B.5
emerged only after the presentation of the plaint by the plaintiff on
27.10.1997.
26. It is also a fact to be noted that after the cancellation of the power
deed – Ex.A.3, vide Ex.B.25 by D2, the remaining 3 cents was sold by D2 in
favour of the same D3, who had already purchased the 6 cents of land. As such,
the whole bit and caboodle of facts placed before me would connote and denote
that a dispute erupted between D1 and D2 and in that connection D2 cancelled
Ex.A.3 the said power deed; whereupon obviously and axiomatically for the
purpose of safeguarding the interest of D1, Exs.A.1 and A.2 emerged at the
instance of D1 and to that effect both the Courts below rendered a finding,
which in my opinion is not perverse or illegal. Wherefore for the first time in
Second Appeal, this Court cannot be called upon to give any finding that Exs.A.1
as well as Ex.A.2, was anterior to such cancellation.
27. The fact also remains that after filing of the suit, D2 filed a
counter claim for recovery of possession of the property, which is in the
possession of the plaintiff on the ground that after obtaining injunction in the
suit, the plaintiff barged into the suit property and that was ordered.
28. There is nothing to indicate that D1 ever raised his little finger to
question the factum of the power having been cancelled by D2 in his favour. As
such I am of the considered view that absolutely there is no reason to interfere
with concurrent finding of facts rendered au fait with law by both the Courts
below.
29. I would like to recollect and recall the decision of the Hon’ble Apex
Court in Citadel Fine Pharmaceuticals v. Ramaniyam Real Estates (P) Ltd.
reported in (2011) 9 Supreme Court Cases 147. Certain excerpt from it would run
thus:
“57. There is another aspect of the matter also. In the instant case by asking
for specific performance of the contract, the plaintiff purchaser is praying for
a discretionary remedy. It is axiomatic that when a discretionary remedy is
prayed for by a party, such party must come to court on proper disclosure of
facts. The plaint which it filed before the court in such cases must state all
the facts with sufficient candour and clarity. In the instant case the plaintiff
purchaser made an averment in the plaint that the defendant vendor be directed
to return the advance amount of Rs10,00,000 with interest at the rate of 24%
from the date of payment of the said amount till the realisation and an
alternative prayer to that effect was also made in the prayer clause (c).
58. However, the fact remains that prior to the filing of the suit the defendant
vendor returned the said amount of Rs 10,00,000 by its letter dated 4-9-1996
by an account payee cheque in favour of the plaintiff and the same was sent to
the plaintiff under registered post which was refused by the plaintiff on 6-9-
1996. The plaintiff suppressed this fact in the plaint and filed the suit on 9-
9-1996 with a totally contrary representation before the court as if the amount
had not been returned to it by the vendor. This is suppression of a material
fact, and disentitles the plaintiff purchaser from getting any discretionary
relief of specific performance by the court.
59. In this connection we may refer to the Principle of Equitable Remedies by
I.C.F. Spry, (4th Edn., Sweet & Maxwell, 1990). Dealing with the question of
“clean hands” the learned author opined that where the plaintiff is shown to
have materially misled the court or to have abused its process, or to have
attempted to do so, the discretionary relief of specific performance can be
denied to him. In laying down this principle, the learned author relied on a
decision of the English Court in Armstrong v. Sheppard & Short Ltd., (1959) 2 QB
384, QB at p.397. (See Spry, Equitable Remedies, p. 243.)
60. This Court has also taken the same view in Arunima Baruah v. Union of India,
(2007) 6 SCC 120. At p. 125, para 12 of the Report, this Court held that
it is trite law that to enable the court to refuse to exercise its discretionary
jurisdiction suppression must be of a material fact. This Court, of course, held
that what is a material fact, suppression whereof would disentitle the suitor to
obtain a discretionary relief, would depend upon the facts and circumstances of
each case. However, by way of guidance this Court held that a material fact
would mean that fact which is material for the purpose of determination of the
lis.
61. Following the aforesaid tests, this Court is of the opinion that the
suppression of the fact that the plaintiff refused to accept the cheque of Rs
10 lakhs sent to it by the defendant under registered post with
acknowledgment due in terms of Clause 9 of the contract is a material fact. So
on that ground the plaintiff purchaser is not entitled to any relief in its suit
for specific performance.”
A mere poring over and perusal of the said decision would leave no doubt in the
mind of the Court that in a suit for specific performance there should not be
any suppression of fact or falsity involved and for that matter if a litigant
approaches the Court with false statements, he should be non-suited.
30. On balance, I do not see any question of law, much less any
substantial question of law is involved in this matter and the Second Appeal
deserves to be dismissed.
31. In the result, the Second Appeal is dismissed. No costs. Consequently,
connected M.Ps. are dismissed.
32. The learned counsel for D1 would make an extempore submission after
hearing this judgment, that this Court might give liberty to D1 to take
independent action to seek his remedy as against D2 and others. However, it is
open for him to do so, if law permits.
sj
To
1.The Principal District Judge,
Thoothukudi.
2.The Principal District Munsif,
Thoothukudi.
