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1973 Supreme(MP) 20
IN THE HIGH COURT OF MADHYA PRADESH
R.J. Bhave, Shiv Dayal Shrivastava and S.B. Sen, JJ.
Pritamdas
Vs.
Akabari & others
F.A. No. 27 of 1965
Decided On: 20.02.1973
For Appellant/Petitioner/Plaintiff: R.A. Roman
For Respondents/Defendant: P.L. Inamdar
Headnote:(1) Evidence Act, 1872 - S. 114 - independent persons shown in the list of witnesses - not produced - presumption.
The defendant in his list of witnesses mentioned two persons who were expected to be reliable, but did not produce them, and in their place produced other less respectable persons. In such circumstances it can be presumed that those two respectable persons, if they would have been produced, would not have supported the defendant's case and hence were kept back. [Para 10
(2) Practice - ante-dated document bearing stamp-paper - problem of proof.
It is not very difficult to procure ante-dated stamp papers and to bring into existence the documents like Exs. D-1 and D-2. When such documents are brought into existence, it is difficult to prove by direct evidence that they are ante-dated documents. This is specially so when the executants thereof and the witnesses are prepared to support the same. The surrounding circumstances in such cases acquire great significance when one is required to decide the question whether they are antedated documents. [Para 14
(3) Civil P.C., 1908 - S. 98 - two judges differing on point of fact - reference can be made to a third judge - Letters Patent (Nag.) - Cl. 26.
(4) Letters Patent (Nag.) - Cl. 26 - overrides provisions of section 98 (2), C.P.C. - reference to third judge can be made on a question of fact.
At one time, there was a controversy on the point as to whether there could have been any reference on a question of fact. But sub-section (3) which was added in 1928 to section 98 clearly lays down that nothing contained in section 98 shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court.
Clause 26 of the Letters Patent which over-rides the provisions of section 98, Civil Procedure Code, makes no distinction between 'a point of law' and 'a point of fact'. Similarly, it does not provide for automatic confirmation of the decision of the lower Court if there is a difference between the Judges and there is no majority. [Para 17
R.J. Bhave, J.
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 plain 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 paid at the time of registration. Inasmuch as Hashmatullah had entered into this agreement on behalf of his father as his Mukhtayar A am 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-1) 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 24-10-1958. The original agreement dated 30-11-1958 it is alleged, was returned to Hashmatullah. On 29.12.1958, Hashmatullah sent another letter (Ex. P-5) asking the plaintiff to fix a date for completing the sale of the suit house. On 24-1-1959, 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 son of Hidayatullah arid 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. 19,500 on 18-11-1958 and that Hidayatullah was also a confirming party to the said sale and that the notice, referred to in "HAMARI, AAWAZ" 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 2-3 letters to
