Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 6956 of 2004

H. Siddiqui (dead) by Lrs. ...Appellant

Versus

A. Ramalingam ...Respondent

J U D G M E N T

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. 1/3

rd

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.

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(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

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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 agreement dated 25.6.1979 contained clause 11

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according to which if the sale deed was not executed, the earnest

money of Rs.5,000/- received by alleged power of attorney holder

would be refunded to the purchaser together with the like amount of

Rs.5,000/- as liquidated damage for breach of contract. Thus, at the

most, the appellant was entitled to receive a sum of Rs.10,000/- but

the question of decreeing the suit could not arise. The appellant had

been a tenant. He never paid any consideration. Earlier there has been

a prior sale of 1/3

rd

share in the same property (share of the brother of

the respondent) in favour of D. Narendra and the appellant had filed

the suit against him also claiming that the said part of the property

could have been sold to him. The alleged payment of Rs.65,500/- or

Rs.40,000/- as a sale consideration is nothing but mis-representation

by showing forged receipts prepared by the appellant in collusion with

the son of the alleged power of attorney holder at the time of litigation

with D. Narendra. The appeal lacks merit and is liable to be

dismissed.

6.We have considered the rival submissions made by learned

counsel for the parties and perused the record.

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7.Admittedly, there had been litigation between the appellant and

other co-sharers when 1/3

rd

share of the said property was sold in

favour of D. Narendra by the brother of the respondent. Appellant

herein has lost the said case. Before the Trial Court, the appellant

while filing the suit has impleaded the respondent and his brother, R.

Viswanathan, the alleged power of attorney holder. In the First

Appeal, before the High Court, both of them had been the parties.

However, before this Court the alleged power of attorney holder, R.

Viswanathan, has not been impleaded as respondent for the reasons

best known to the appellant.

8.The Trial Court taking into consideration the pleadings had

framed the following issues:-

“1.Whether the defendants prove that the agreement

of sale dated 25.6.1979 was taken by the plaintiff by

practicing fraud on the II defendant as per the written

statement of D1 and D2?

2.Whether the plaintiff proves payment of amount as

alleged in the plaint?

3.To what relief the plaintiff is entitled to.

Additional Issues:

1.Whether the suit is bad for non-joinder of

necessary parties?

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2.Whether the agreement dated 25.6.1979 is

unenforceable?”

9.In view of the pleadings, as the respondent has specifically

denied the execution of a power of attorney in favour of R.

Viswanathan, defendant No.2 in the suit (not impleaded herein), the

main issue could be as to whether the power of attorney had been

executed by the respondent in favour of R. Viswanathan enabling him

to alienate the suit property and even if there was such power of

attorney whether the same had been proved in accordance with law.

10.Provisions of Section 65 of the Act 1872 provide for permitting

the parties to adduce secondary evidence. However, such a course is

subject to a large number of limitations. In a case where original

documents are not produced at any time, nor, any factual foundation

has been led for giving secondary evidence, it is not permissible for

the court to allow a party to adduce secondary evidence. Thus,

secondary evidence relating to the contents of a document is

inadmissible, until the non production of the original is accounted for,

so as to bring it within one or other of the cases provided for in the

section. The secondary evidence must be authenticated by

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foundational evidence that the alleged copy is in fact a true copy of

the original. Mere admission of a document in evidence does not

amount to its proof. Therefore, the documentary evidence is required

to be proved in accordance with law. The court has an obligation to

decide the question of admissibility of a document in secondary

evidence before making endorsement thereon. (Vide: The Roman

Catholilc Mission & Anr. v. The State of Madras & Anr., AIR

1966 SC 1457; State of Rajasthan & Ors. v. Khemraj & Ors.,

AIR 2000 SC 1759; Life Insurance Corporation of India & Anr. v.

Ram Pal Singh Bisen, (2010) 4 SCC 491; and M. Chandra v. M.

Thangamuthu & Anr., (2010) 9 SCC 712).

11.The Trial Court decreed the suit observing that as the parties

had deposed that the original power of attorney was not in their

possession, question of laying any further factual foundation could not

arise. Further, the Trial Court took note of the fact that the respondent

herein has specifically denied execution of power of attorney

authorising his brother R. Viswanathan to alienate the suit property,

but brushed aside the same observing that it was not necessary for the

appellant/plaintiff to call upon the defendant to produce the original

power of attorney on the ground that the photocopy of the power of

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attorney was shown to the respondent herein in his cross-examination

and he had admitted his signature. Thus, it could be inferred that it is

the copy of the power of attorney executed by the respondent in

favour of his brother (R. Viswanathan, second defendant in the suit)

and therefore, there was a specific admission by the respondent

having executed such document. So it was evident that the respondent

had authorised the second defendant to alienate the suit property.

12.In our humble opinion, the Trial Court could not proceed in

such an unwarranted manner for the reason that the respondent had

merely admitted his signature on the photocopy of the power of

attorney and did not admit the contents thereof. More so, the court

should have borne in mind that admissibility of a document or

contents thereof may not necessary lead to drawing any inference

unless the contents thereof have some probative value.

13. In State of Bihar and Ors. v. Sri Radha Krishna Singh &

Ors., AIR 1983 SC 684, this Court considered the issue in respect of

admissibility of documents or contents thereof and held as under:

“Admissibility of a document is one thing and its

probative value quite another - these two aspects

cannot be combined. A document may be

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admissible and yet may not carry any conviction

and the weight of its probative value may be nil.”

14.In Madan Mohan Singh & Ors. v. Rajni Kant & Anr., AIR

2010 SC 2933, this Court examined a case as a court of fifth instance.

The statutory authorities and the High Court has determined the issues

taking into consideration a large number of documents including

electoral rolls and school leaving certificates and held that such

documents were admissible in evidence. This Court examined the

documents and contents thereof and reached the conclusion that if the

contents of the said documents are examined making mere

arithmetical exercise it would lead not only to improbabilities and

impossibilities but also to absurdity. This Court examined the

probative value of the contents of the said documents and came to the

conclusion that Smt. Shakuntala, second wife of the father of the

contesting parties therein had given birth to the first child two years

prior to her own birth. The second child was born when she was 6

years of age; the third child was born at the age of 8 years; the fourth

child was born at the age of 10 years; and she gave birth to the fifth

child when she was 12 years of age.

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Therefore, it is the duty of the court to examine whether

documents produced in the Court or contents thereof have any

probative value.

15.The Trial Court rejected the contention of the respondent that

the appellant/plaintiff had paid more than what had been agreed in the

agreement to sell, and hence changed the terms of agreement

unilaterally, observing that in such a fact-situation it cannot be said

that the terms of the agreement had been unilaterally altered by the

appellant/plaintiff. Such a remark/observation could not have been

made without any explanation furnished by the appellant, as under

what circumstances the appellant-purchaser, without being asked by

the respondent-seller, to enhance the consideration amount has paid

more and it cannot be held to be natural human conduct in public and

private business. Such conduct of the appellant remains most

improbable.

16.The High Court while dealing with the First Appeal has framed

only the following two issues:

“(a)Whether the findings and reasons recorded

on issue Nos. 1 and 2 and Addl. Issue Nos. 1 & 2

by the Trial Court in holding that defendants have

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not proved that they have not executed agreement

of sale in favour of plaintiff and the same has been

obtained by the plaintiff by making use of power of

attorney holder of second defendant which

amounts to fraud and mis-representation warrant

interference with the same by this court in exercise

of its Appellate power and jurisdiction?

(b)Whether the Trial Court was right in not

exercising its discretionary power under sub-

section (2) of Section 20 while granting judgment

and decree for specific performance in favour of

plaintiff if it has not exercised its power under the

above provisions of the Act, whether, this Court

has to remand the case to the trial court after

setting aside the judgment and decree for the

consideration regarding this aspect of the case?”

17.The High Court failed to realise that it was deciding the First

Appeal and that it had to be decided strictly in adherence with the

provisions contained in Order XLI Rule 31 of the Code of Civil

Procedure, 1908 (hereinafter called CPC) and once the issue of

alleged power of attorney was also raised as is evident from the point

(a) formulated by the High Court, the Court should not have

proceeded to point (b) without dealing with the relevant issues

involved in the case, particularly, as to whether the power of attorney

had been executed by the respondent in favour of his brother enabling

him to alienate his share in the property.

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Order XLI, Rule 31 CPC:

18.The said provisions provide guidelines for the appellate court as

to how the court has to proceed and decide the case. The provisions

should be read in such a way as to require that the various particulars

mentioned therein should be taken into consideration. Thus, it must

be evident from the judgment of the appellate court that the court has

properly appreciated the facts/evidence, applied its mind and decided

the case considering the material on record. It would amount to

substantial compliance of the said provisions if the appellate court’s

judgment is based on the independent assessment of the relevant

evidence on all important aspect of the matter and the findings of the

appellate court are well founded and quite convincing. It is

mandatory for the appellate court to independently assess the evidence

of the parties and consider the relevant points which arise for

adjudication and the bearing of the evidence on those points. 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. Thus, the entire evidence must be considered

and discussed in detail. Such exercise should be done after

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formulating the points for consideration in terms of the said provisions

and the court must proceed in adherence to the requirements of the

said statutory provisions. (Vide: Thakur Sukhpal Singh v. Thakur

Kalyan Singh & Anr., AIR 1963 SC 146; Girijanandini Devi &

Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G.

Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3

SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC

600; and Gannmani Anasuya & Ors. v. Parvatini Amarendra

Chowdhary & Ors., AIR 2007 SC 2380)

19.In B.V. Nagesh & Anr. v. H.V. Sreenivasa Murthy, JT

(2010) 10 SCC 551, while dealing with the issue, this Court held as

under:

“The appellate Court has jurisdiction to reverse

or affirm the findings of the trial Court. The first

appeal is a valuable right of the parties and unless

restricted by law, the whole case therein is open

for re-hearing both on questions of fact and law.

The judgment of the appellate Court must,

therefore, reflect its conscious application of

mind and record findings supported by

reasons, on all the issues arising along with the

contentions put- forth and pressed by the

parties for decision of the appellate Court. Sitting

as a court of appeal, it was the duty of the High

Court to deal with all the issues and the evidence

led by the parties before recording its findings.

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The first appeal is a valuable right and the

parties have a right to be heard both on questions

of law and on facts and the judgment in the first

appeal must address itself to all the issues of law

and fact and decide it by giving reasons in support

of the findings. [Vide Santosh Hazari vs.

Purushottam Tiwari, (2001) 3 SCC 179 and

Madhukar and Others vs. Sangram and Others,

(2001) 4 SCC 756]”

20.More so, none of the courts below had taken into consideration

Clause 11 of the agreement dated 30.6.1979 which reads as under:

“11.In the event of any default on the part of the

vendors in completing the sale the earnest money

paid herewith shall be refunded to the purchasers

together with a like amount of Rs.5,000/- (Rupees

five thousand only) as liquidated damages for

breach of contract.”

Thus, in case of non-execution of the sale deed, the appellant

could get the earnest money with damages.

21.So far as the issues of inadequate consideration and rise in price

are concerned, both the parties have argued the same at length and

placed reliance on a large number of judgments of this Court,

including: Chand Rani (Smt.) (dead) by Lrs. v. Kamal Rani

(Smt.)(dead) by Lrs., AIR 1993 SC 1742; Nirmala Anand v.

Advent Corporation (P) Ltd. & Ors., (2002) 8 SCC 146; P.

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D’Souza v. Shondrilo Naidu, (2004) 6 SCC 649; Jai Narain

Parasrampuria (dead) & Ors. v. Pushpa Devi Saraf & Ors., (2006)

7 SCC 756; Pratap Lakshman Muchandi & Ors. v. Shamlal

Uddavadas Wadhwa & Ors., (2008) 12 SCC 67; and Laxman

Tatyaba Kankate & Anr. v. Taramati Harishchandra Dhatrak,

(2010) 7 SCC 717.

22.In view of the above, as we are of the considered opinion that

the courts below have not proceeded to adjudicate upon the case

strictly in accordance with law, we are not inclined to enter into the

issue of inadequate consideration and rise in price.

However, the judgment impugned cannot be sustained in the

eyes of law.

23.In the facts and circumstances of the case, we remit the matter

to the High Court setting aside its judgment and decree (impugned)

and request the High Court to decide the same afresh in accordance

with law, as explained hereinabove. As the case has been pending for

three long decades, we request the High Court to decide it

expeditiously. However, it is clarified that any observation made

herein shall not adversely affect the cause of either parties.

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24.With the above observations, the appeal stands disposed of.

There shall be no order as to costs.

……………………..J.

(P. SATHASIVAM)

……………………..J.

(Dr. B.S. CHAUHAN)

New Delhi,

March 4, 2011

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