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1973 Supreme(MP) 51
High Court Of Madhya Pradesh
Shiv Dayal and R. J. Bhave, JJ.
PRITAM DAS - Appellant
Versus
AKBARI - Respondents
First Appeal 27 Of 1965
Decided On : 04/19/1973
P.L.Inamdar, R.A.Roman
Clause 26 of the Letters Patent of the High Court of Judicature at Nagpur, which governs the Madhya Pradesh High Court, overrides the provisions of Section 98, Civil Procedure Code, and makes no distinction between 'a point of law' and 'a point of fact'. Therefore, the High Court could refer the question of fact to a third judge for his opinion.
Headnote:
AGREEMENT - EXECUTION - PRIOR TO PLAINTIFF'S AGREEMENT - PROOF - CIRCUMSTANTIAL EVIDENCE - ADMISSIBILITY - COURT'S DISCRETION - LETTERS PATENT OF HIGH COURT - CLAUSE 26 - INTERPRETATION - REFERENCE TO THIRD JUDGE - QUESTION OF FACT - COMPETENCY.
Fact of the Case:
The plaintiff entered into an agreement with defendant No. 2 to purchase a house for Rs. 20,000/- on 30-11-1958. The defendants relied on two agreements (Exs. D-1 and D-2) dated 17-10-1958 and 18-11-1958 respectively, executed by the owner of the house in favour of the third defendant, the Bata Shoe Company, for a consideration of Rs. 19,500/-. The trial court admitted the agreements into evidence, despite the plaintiff's objection that they were not filed at the earliest opportunity or were not disclosed as they were not in existence and were subsequently manufactured. The trial court found that the agreements were genuine and dismissed the plaintiff's suit. On appeal, the High Court differed on the issue of whether the agreements were executed before the plaintiff's agreement. The case was referred to a third judge for his opinion.
Finding of the Court:
The third judge, after considering the evidence and the surrounding circumstances, concluded that the agreements (Exs. D-1 and D-2) were ante-dated and were brought into existence after the plaintiff's notice in "hamari Aawaz" was published. The court held that the failure of the third defendant to examine the witnesses whose oath would have been of great significance warranted adverse inference against them. Similarly, the fact that the third defendant refused to give inspection of the agreement, referred to in the notice (Ex. P-7), before the suit was filed and their failure to produce it for a very long time warranted adverse inference against them.
Issues: 1. Whether the agreements (Exs. D-1 and D-2) relied on by the defendants were executed before the agreement for sale between the plaintiff and defendants 1 and 2 was executed? 2. Whether the High Court could refer the question of fact to a third judge for his opinion?
Ratio Decidendi: 1. The court held that the agreements (Exs. D-1 and D-2) were ante-dated and were brought into existence after the plaintiff's notice in "hamari Aawaz" was published. The court relied on the following circumstances to reach this conclusion: a. The third defendant's failure to examine the witnesses whose oath would have been of great significance warranted adverse inference against them. b. The third defendant's refusal to give inspection of the agreement, referred to in the notice (Ex. P-7), before the suit was filed and their failure to produce it for a very long time warranted adverse inference against them. c. The discrepancies between Exs. D-1 and D-2 and Ex. D-3 (the sale-deed). d. The improbability of there being no record of any kind in the Head Office of a limited Company regarding previous negotiations. 2. The court held that Clause 26 of the Letters Patent of the High Court of Judicature at Nagpur, which governs the Madhya Pradesh High Court, clearly lays down that if the Judges of a Division Court are equally divided, the case shall then be heard upon that point by one or more of the other judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. The court held that Clause 26 overrides the provisions of Section 98, Civil Procedure Code, and makes no distinction between 'a point of law' and 'a point of fact'.
Final Decision: The court allowed the appeal, set aside the decree of the trial court, and passed a decree granting specific performance of the contract to the plaintiff with costs in both the courts.
( 1 ) ON a difference between Honourable Justice Shiv Dayal and Honourable Justice s. B. Sen, the following question has been referred to me for my decision:-" whether the agreements (Exs. D-1 and D-2 ). relied on by the defendants, were executed before the agreement for sale between the plaintiff and defendants 1 and 2 was executed ?"
( 2 ) TO appreciate the circumstances In which the difference between the honourable Judges arose it is necessary to narrate a few facts. The original defendant No. 1 Hidayatullah owned the suit house situate in Lashkar, Gwalior, near the Town Hall. In one portion of the ground-floor the plaintiff has his shop, while the other portion is occupied by the Bata Shoe Company (the third defendant ). Hashmatullah (defendant No. 2) is the son of defendant No. 1 hidayatullah. Hashmatullah had entered into an agreement with the plaintiff to transfer the suit house for a consideration of Rs. 20,000/- on 30-11-1958. Under this agreement, a sum of Rs. 1,000/- was to be paid by way of earnest money, and rest of the amount was to be ipaid at the time of registration. Inasmuch as hashmatullah had entered into this agreement on behalf of his father as his mukhtyar Aam and inasmuch as he had not 'produced the necessary documents to satisfy the plaintiff that he had the said authority, only Rs. 200/- were paid to him by way of earnest money and he was requested to produce the necessary documents after which another agreement was to be executed. On 8-12-1958. Hashmatullah sent a letter to Pritam Das, the plaintiff, asking him to fix a date for examining the relevant documents at Gwalior and after which and receiving the balance of Rs. 800/- Hashmatullah had shown his willingness to execute another agreement. Accordingly, on 21-12-1958, Hashmatullah executed an agreement (Ex. P-l)agreeing to transfer the property for Rs. 20,000/ -. On that date. he was paid Rs. 800/- thus making up the earnest money originally agreed upon. The agreement was signed by Bishandas (P. W. 1) and Hariram (P. W. 2 ). It was also authenticated by Shri Dalani, Notary, Gwalior. On that date, Hashmatullah had also shown to the plaintiff a registered power of attorney from his father dated 2410-1958. The original agreement dated 30-11-1958, it is alleged, was returned to hashmatullah. On 29-12-1958, Hashmatullah sent another letter (Exhibit P-5)asking the plaintiff to fix a date for completing the sale of the suit house. On 24-11959. Pritam Das. the plaintiff, published a notice (Ex. P-6) in the newspaper "hamari AAWAZ" informing the general public that the plaintiff had entered into an agreement to purchase the house through Hashmatullah s/o Hidayatullah and inviting objections of any claimants within 15 days. It appears that the local agents of the Bata Shoe Company came to know about this agreement and informed their office. On 26-2-1959 a notice (Ex. P-7) was sent on behalf of the bata Shoe Company by their counsel Shri Muzumdar informing the plaintiff that hashmatullah had, under a power of attorney granted to him by his father, entered into a valid agreement for sale of the house with the Bata Shoe Company for a consideration of Rs. 10,500/- on 18-11-1958 and that Hidayatullah was also a confirming party to the said sale and that the notice referred to in "hamari aawaj" dated 24-1-1959 was of no avail to the plaintiff.
( 3 ) ON 4-3-1959. Hashmatullah sent a letter (Ex. P-10) to the plaintiff expressing his helplessness in the matter of completing the sale and asking him to take back his amount of Rs. 1,000/ -. Hashmatullah had stated in the letter that he had come to know from his father that he had already entered into a prior agreement with the Bata Shoe Company, to sell the house to them. On receipt of this letter, on the same day Pritam Das sent a letter to Hashmatullah informing him about the claim put forward by the Bata Shoe Company and asking Hashmatullah to come personally and clarify the true position. He had also sent
