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2011 (2) Supreme 427
SUPREME COURT OF INDIA
P. Sathasivam and Dr. B.S. Chauhan, JJ.
H. Siddiqui (dead) by Lrs. — Appellant
versus
A. Ramalingam — Respondent
Civil Appeal No. 6956 of 2004
Decided on : 4-3-2011
AIR 1966 SC 1457; AIR 2000 SC 1759; (2010) 4 SCC 491; (2010) 9 SCC 712 – Relied upon
(b) Indian Evidence Act, 1872 – Section 65 – Admitting one’s signature on a document is not admitting contents of the document –Moreover, admissibility of a document is one thing and its probative value is quite different thing – A document, although admissible as evidence may not have any probative value. (Para 12)
AIR 1983 SC 684; AIR 2010 SC 2933 – Relied upon
(c) Code of Civil Procedure, 1908 – Order XLI Rule 31 – First appeal – Appellate Court is mandated to independently assess the evidence of the parties and consider the relevant points which arise for adjudication – Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment – Rather it must give reasons for its decision on each point independently to that of the trial court. (Para 18)
AIR 1963 SC 146; AIR 1967 SC 1124; (2006) 3 SCC 224; (2007) 8 SCC 600; AIR 2007 SC 2380; JT (2010) 10 SCC 551 – Relied upon
(d) Code of Civil Procedure, 1908 – Order XLI Rule 31 – First appeal – Judgment in the first appeal must address itself to all the issues of law and fact – The judgment must give reasons in support of the findings.
(2001) 3 SCC 179; (2001) 4 SCC 756 – Relied upon
(e) Courts below not considering the damages clause in the agreement – Said clause 11 providing for damages to the appellant in case of non-execution of the sale deed by the respondent – Adjudication by the courts below not being in accordance with law, further adjudication of the question of cost escalation etc. not warranted. (Para 21)
AIR 1993 SC 1742; (2002) 8 SCC 146; (2004) 6 SCC 649; (2006) 7 SCC 756; (2008) 12 SCC 67; (2010) 7 SCC 717 – Referred
Facts of the case:
This case involves specific performance of agreement to sale of an immovable property.
Finding of the Court:
Impugned judgment cannot be sustained.
Key Points: - The appellate court must independently assess evidence and provide reasons on all issues in a first appeal, per requirements discussed for Order XLI Rule 31 CPC (!) (!) - Admissibility of documents under Section 65 of the Indian Evidence Act is distinct from its probative value; mere admission of signature does not prove contents; document must be proved in accordance with law (!) (!) (!) - The case was remitted to the High Court to decide afresh in accordance with law, and a reminder to decide expeditiously; the clause regarding liquidated damages in the agreement is relevant to relief in case of non-execution (!) (!) (!) - The High Court must address issues of power of attorney execution and its admissibility before proceeding, failing which remand or reconsideration is required (!) (!) - Clause 11 of the agreement provides liquidated damages and refund of earnest money in case of default, affecting the available relief for specific performance (!) (!)
JUDGMENT
Dr. B. S. Chauhan, J. —
1. This appeal has been preferred against the judgment and order dated 3.2.2004 passed by the High Court of Karnataka at Bangalore in Regular First Appeal No. 265 of 1999.
2. FACTS:
(A) The Appellant who had been inducted as a tenant at an initial stage filed suit No. 30/1981 on 1.1.1981 for specific performance of contract in the City Civil Court, Bangalore alleging that the power of attorney holder of the respondent entered into the agreement dated 25.6.1979 to sell the suit property i.e. 1/3rd share of the respondent in the property being No.43, Mission Road, Shanti Nagar, Bangalore-27 to him for a consideration of Rs.40,000/- by receiving an advance of Rs.5,000/-.
(B) The said agreement was duly registered and according to the terms incorporated therein, the sale deed was to be executed on or before 30.12.1980. The respondent failed to take necessary steps to act according to the agreement. Thus, the appellant/plaintiff issued notice to the respondent on 5.3.1980 through his lawyer.
(C) The appellant/plaintiff allegedly paid the balance amount on 15.5.1980. As the time limit for the execution of the sale deed had expired, and the sale deed was not executed, the appellant/plaintiff filed the suit for specific performance.
(D) The respondent denied the execution of any power of attorney in favour of his brother with regard to alienation of the property. In fact the power of attorney had been given only for management of the property and not creating any right to transfer the same.
(E) In view of the pleadings, the Trial Court framed issues and after conclusion of the trial decreed the suit vide judgment and decree dated 3.11.1998.
3. Being aggrieved, the respondent preferred Regular First Appeal No. 265 of 1999 before the High Court of Karnataka which has been allowed by the impugned judgment and decree dated 3.2.2004. Hence, this appeal.
4. Shri K. K. Mani, learned counsel appearing for the appellant has submitted that as the appellant had proved that the agreement to sell dated 25.6.1979 was not obtained by the appellant through any kind of fraud, there was no justification for the High Court to set aside the judgment and decree of the Trial Court for specific performance on the grounds: the property was situated in Bangalore; the sale consideration was inadequate; and as a result of a long lapse of time on account of pendency of the case before the courts there has been a steep rise in the market value of the property. There can be no justification for not giving effect to the registered agreement to sell. The appellant had paid a sum of Rs.65,500/-, though the consideration as per the agreement had been only to the extent of Rs.40,000/-. The judgment and order of the High Court is liable to be set aside for the reasons that geographical location of the property or inadequate consideration and rise/escalation of price during the pendency of the case in court cannot be the grounds for reversal of the judgment and decree of the Trial Court.
5. On the contrary, Shri Rajiv Dutta, learned senior counsel appearing for the sole respondent has vehemently opposed the appeal contending that the respondent never executed the power of attorney in favour of his brother enabling him to transfer the suit property. Power of attorney had never been filed before the Trial Court nor had it been proved. The photocopy of the same was shown to the respondent during the time of his cross-examination wherein he has admitted his signature thereon only. The respondent had never admitted its contents or genuineness of the same. Therefore, the power of attorney itself had not been proved in terms of Sections 65 and 66 of the Indian Evidence Act, 1872 (hereinafter called Act 1872) and, thus the question of proceeding further by the Trial Court could not arise. More so, it is not probable that the appellant paid a sum of Rs.65,500/- instead of Rs.40,000/- as consideration fixed in the agreement to sell. The agreemen
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