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SUPREME COURT OF INDIA
DIPAK MISRA, V. GOPALA GOWDA, JJ.
Surjit Singh & Ors. – Appellants
Versus
Gurwant Kaur & Ors. – Respondents
Civil Appeal No. 8283 of 2014 (Arising out of S.L.P. (C) No. 18676 of 2012)
Decided on: 27-08-2014
AIR 1960 SC 941 – Relied upon
(b) Res judicata – Does not apply to interlocutory orders which do not decide merits of the controversy – Successive applications based on same set of facts in such cases can be rejected on the ground of abuse of the process of the Court but not by principle of res judicata. (Para 16)
AIR 1964 SC 993; (1972) 2 SCC 54; (2013) 9 SCC 349 – Relied upon
(c) Code of Civil procedure, 1908 – Order XLI rule 27(1)(a) and (a)(a) – Documents not taken on record by trial court u/s 151 CPC – High Court approving the same – Cannot be reconsidered – Rule 27(1)(a) and (a)(a) not attracted. (Para 18)
(d) Code of Civil procedure, 1908 – Order XLI rule 27(1)(b) – Appellate court may require production of additional evidence – When – Test – Whether court would be able to pronounce judgment without the additional document. (Para 18)
AIR 1931 PC 143; AIR 1951 SC 193 – Relied upon
(e) Administration of Justice – Judicial propriety – Trial court rejecting u/s 151 CPC to admit additional documents – High Court affirming – Appellate court on subsequent occasion admitting additional documents under Order XLI rule 27(1)(b) – Documents being not clinching were not necessary in the interest of justice – Rule 27(1)(b) does not apply – Appellate court and High Court both erred in law. (Para 19)
7 Moo Ind App 283(PC); 10 Moo Ind App 340 (PC); 10 Moo Ind App 431 (PC) – Relied upon
(2000) 6 SCC 359; (1969) 2 SCC 74 – Referred
AIR 1963 SC 1526; AIR 1979 SC 553; (1994) 4 SCC 659; JT 2002 (6) SC 16 – Distinguished
Facts of the case:
The respondent No. 1 instituted Civil Suit No. 78 of 2003 in the Court of the learned Additional Civil Judge (Senior Division), Patti, district Taran Taran, for specific performance of contract entered into between him and the appellant No. 1, the predecessor-in-interest of appellants Nos. 2 to 4 and the respondent No. 2 for sale of land at the rate of Rs.3,22,500/-per Killa which included all rights attached to the land.
It was averred in the plaint that the defendant in the Civil suit had received Rs.50,000/-on 7.2.2003 and a further sum of Rs. 50,000/-on 25.2.2003 as against the determined price of 3,22,500/-per killa as per the agreement. As stipulated in the agreement the balance amount was to be paid on 3.6.2013 at the time of execution and registration of sale deed before the sub Registrar, Patti. It was also recited in the agreement that the suit land was already mortgaged with the State Bank of Patiala and the defendants should clear the loan before execution of the sale deed in favour of plaintiff failing which the deposited amount would be forfeited. The plaintiff, as averred in the plaint, went to the office of the sub-Registrar but the defendants did not turn up. As there was breach of contract by the defendants, for they failed to execute and register the sale deed in favour of the plaintiff, he initiated the civil action for specific performance of contract or in the alternative for recovery of Rs.2,00,000/-as compensation.
Plaintiff’s application under Section 151, CPC for filing additional documents was dismissed.
Civil Revision thereagainst was dismissed by High Court.
Plaintiff’s suit was dismissed.
During appeal plaintiff’s application under Order XLI Rule 27 of CPC was allowed.
High Court declined to interfere.
Finding of the Court:
Both the trial court and the High Court erred in law.
Result: Appeal allowed.
Judgment
Dipak Misra, J.
Leave granted.
2. The respondent No. 1 instituted Civil Suit No. 78 of 2003 in the Court of the learned Additional Civil Judge (Senior Division), Patti, district Taran Taran, for specific performance of contract entered into between him and the appellant No. 1, the predecessor-in-interest of appellants Nos. 2 to 4 and the respondent No. 2 for sale of land admeasuring 28 K 12 M bearing khata Khatoni 330/1254, 1256, 331/1261 and Killa Nos. 34/25 (712), 40/1/1 (4-15), 10/2 min (0-8), 41/5 min (2-8) 6/1 (7-5) 15/1 (2-16), 34/162 (3-8), situated in village Talwandi Sobha Singh Tehsil Patti District Amritsar as per Jamabandi for the year 1997-98 at the rate of Rs.3,22,500/-per Killa which included all rights attached to the land.
3. It was averred in the plaint that the defendant in the Civil suit had received Rs.50,000/-on 7.2.2003 and a further sum of Rs. 50,000/-on 25.2.2003 as against the determined price of 3,22,500/-per killa as per the agreement. As stipulated in the agreement the balance amount was to be paid on 3.6.2013 at the time of execution and registration of sale deed before the sub Registrar, Patti. It was also recited in the agreement that the suit land was already mortgaged with the State Bank of Patiala and the defendants should clear the loan before execution of the sale deed in favour of plaintiff failing which the deposited amount would be forfeited. The plaintiff, as averred in the plaint, went to the office of the sub-Registrar but the defendants did not turn up. As there was breach of contract by the defendants, for they failed to execute and register the sale deed in favour of the plaintiff, he initiated the civil action for specific performance of contract or in the alternative for recovery of Rs.2,00,000/-as compensation.
4. The defendants entered contest and filed the written statement contending, inter alia, that the suit was not maintainable; that the plaintiff was not ready with the balance amount; that the stand put forth by the plaintiff that he had come to Tehsil complex on 3.6.2003 along with the balance sale consideration and the attesting witnesses was farther from the truth, for the original defendants remained present in the office of Sub Registrar, Patti from 9.00 a.m. to 5.00 p.m. but the plaintiff did not turn up as he was not ready with the balance consideration; and that the defendants moved an application before the concerned Sub-Registrar for marking their presence and gave an affidavit which was duly signed by the Sub-Registrar. The further stand of the defendants was that the plaintiff and her relatives tried to take forcible possession of the property in dispute as a consequence of which FIR No. 97 dated 9.6.2003 for offences punishable under Sections 307, 326, 323, 148 and 149 of the Indian Penal Code and Section 25 of the Arms Act was registered.
5. The learned trial Judge framed as many as six issues, recorded the evidence and, eventually, dismissed the suit filed by the plaintiff. It is apt to mention here that during the pendency of the suit the plaintiff had filed an application under Section 151 of the Code of Civil Procedure (CPC) for filing of additional documents with the prayer that the said documents should be accepted as additional evidence. It was stated in the application that in her evidence she had already deposed that she had got Rs.9,00,000/-from her husband’s brother, Gian Singh, and he was having Rs.1,00,000/-in her account bearing No. 1313. It was also averred that she was under the impression that her father was prosecuting the case and had filed the statement of accounts bearing No. 1-29 of Gian Singh and of plaintiff’s bearing No. SB/17274 but inadvertently her father could not produce the said statement of accounts and pass books, and she had no knowledge about the same. In the said backdrop a prayer was made for acceptance of the documents.
6. The learned trial Judge, after perusing the material on record, passed the following order:-
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