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2011 Supreme(AP) 1059
2012 (4) ALT 659
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
L. NARASIMHA REDDY, J.
Udatha Mallaiah - Appellants
Vs.
Lingala Pentaiah - Respondent
Second Appeal Nos. 1490 of 2004, Alongwith Second Appeal Nos. 1492 of 2004
Decided On: 29.11.2011
For Appellant: Sri. K. Raghuveer Reddy
For Respondents: Sri. K. Arvinda Rao
Headnote:
Specific Relief Act - Section 16-(c) - Appeals – Suit for specific performance of Agreement – 1st defendant died and his legal representatives were brought on record as defendants – Defendant nos.1 and 2 are owners of two separate bits of land and that the agreement was executed by the 1st defendant, on behalf of himself and his son, for sale of the suit schedule property, admeasuring for a consideration of and that on the date of agreement itself, a sum of was paid as advance. Receipt is said to have been issued therefore –1st defendant promised to get the signature of his son defendant on the agreement and when there was no progress in that direction the plaintiff gave the agreement of sale to the 3rd defendant for obtaining the signature of the 2nd defendant it is stated that having promised to get the signature, the 3rd defendant did not return the agreement of sale, at all, and instead purchased the property - Notice was issued requiring the defendants 1 to 3 to execute the sale deed, after receiving the balance of consideration. Alleging that the defendants did not respond to the notice, the plaintiff filed the suit – Held, Learned counsel for the plaintiff submits that the sentence extracted above was a slip of tongue of his client and the same need not be taken into account, since it runs contrary to the specific pleadings. It is here that the importance of evidence needs to be appreciated. Howsoever well-drafted and well-presented a pleading may be, its acceptability would depend upon the oral version of a person, who filed it - Importance of cross-examination in legal proceedings hardly needs any emphasis - It is ultimately what comes out in the cross-examination that deserves to be treated as nearer to truth - statements contrary to what they have pleaded or stated earlier. In case the contradictory statement was a slip of tongue the law provides for the facility of re-examination so that such inadvertent omission or error can be rectified or explained - Failure to avail the facility of re-examination or to take other steps to neutralise a particular statement made contrary to the pleadings would have its own effect. In the instant case, the plaintiff did not take recourse to any such methods. The inescapable conclusion is that the plea of the plaintiff as regards the agreement of sale is an utter falsehood - plaintiff insisted that possession was delivered to him when the agreement was entered into. It has already been mentioned that the so-called agreement is non-existent. Even in Ex. A-1, there is no mention about the delivery of possession. On the other hand, PW-5 categorically stated in his cross-examination that possession was not delivered - There are other inconsistencies in the evidence of the plaintiffs witnesses - Appeals are accordingly allowed.
L. NARASIMHA REDDY
1. These two Second Appeals arise out of two suits between almost the same parties. Hence, they are disposed of through a common judgment. Defendants in O.S. No. 65 of 2001, on the file of Junior Civil Judge, Bodhan, are the appellants in S.A. No. 1492 of 2004. The sole plaintiff in O.S. No. 158 of 2002 of the same Court filed S.A. No. 1490 of 2004 against the sole defendant therein. During the pendency of O.S. No. 65 of 2001, the 3rd defendant was added as party. Further, the 1st defendant died and his legal representatives were brought on record as defendants 4 to 8. For the sake of convenience, the parties are referred to, as arrayed in O.S. No. 65 of 2001.
2. The plaintiff filed the suit against defendant No. 1, and his son, defendant No. 2 for the relief of specific performance of an agreement of sale, dated 10-04-1997. He pleaded that defendants 1 and 2 are owners of two separate bits of land and that the agreement was executed by the 1st defendant, on behalf of himself and his son, for sale of the suit schedule property, admeasuring Ac. 2.11 guntas for a consideration of Rs. 65,974/-, and that on the date of agreement itself, a sum of Rs. 50,000/- was paid, as advance. Receipt, Ex. A-1, is said to have been issued therefore. It was pleaded that the 1st defendant promised to get the signature of his son, the 2nd defendant, on the agreement and when there was no progress in that direction, the plaintiff gave the agreement of sale to the 3rd defendant for obtaining the signature of the 2nd defendant it is stated that having promised to get the signature, the 3rd defendant did not return the agreement of sale, at all, and instead, purchased the property. A notice was issued on 03-03-2001, requiring the defendants 1 to 3 to execute the sale deed, after receiving the balance of consideration. Alleging that the defendants did not respond to the notice, the plaintiff filed the suit on 04-04-2001.
3. The suit was contested by the defendants 1 and 2. It was pleaded that they did not execute any agreement of sale at all in favour of the plaintiff. It was also pleaded that in respect of the same property, they entered into agreement of sale with the 3rd defendant and that thereafter executed a sale deed.
4. The 3rd defendant in O.S. No. 65 of 2001 filed O.S. No. 158 of 2002 against the plaintiff, for the relief of perpetual injunction in respect of that very property. Naturally, the plaintiff pleaded the same facts, which he asserted in his plaint in O.S. No. 65 of 2001; but in the form of written-statement.
5. The trial Court clubbed both the suits and through a common judgment dated 13-10-2003, dismissed O.S. No. 65 of 2001 and decreed O.S. No. 158 of 2002. The plaintiff filed A.S. Nos. 29 of 2003 and 27 of 2004 in the Court of VII Additional District and Sessions Judge, (Fast Tract Court), Nizamabad at Bodhan. The lower Appellate Court allowed the appeals on 14-10-2004. The result was that the suit for specific performance was decreed and the one, tiled by the 3rd defendant for injunction was dismissed. Hence, these two second appeals.
6. Sri K. Raghuveer Reddy, learned counsel for the defendants submits that the lower Appellate Court reversed the decrees passed by the trial Court without any basis and by drawing untenable inferences. He contends that the plaintiff was not sure as to the agreement of sale, inasmuch as in the plaint and in the notice, he pleaded that it was not available with him, whereas in his evidence, he stated that it is filed into the Court. Learned counsel submits that the lower Appellate Court committed error in law, by observing that oral evidence adduced in respect of the non-existent agreement deserves to be treated as secondary evidence. He further submits that the plaint in O.S. No. 65 of 2001 is silent as to the readiness and willingness on the part of the plaintiff and thereby the suit was liable to be dismissed, as required under Section 16-(c) of the Specific Relief Act (for
