Pushpender Singh v. Ashok Kumar & Ors.

1. These are two regular second appeals under Section 100 CPC against the order dated 4.6.2011 passed by the learned Additional District Judge. R.S.A. Nos.140/2011& 144/2011 Page 1 of10 ) M

2. Briefly stated the facts leading to the filing of the present appeals are that the appellant/defendant is allegedly carrying on his business in shop bearing No.F-121/8, Ground Floor, Vidhyut Gali, Vijay Chowk, Laxmi Nagar, Delhi-110092 which was taken by him on rent from the respondent No. 1/plaintiff on an alleged monthly rent of ^5,000/- vide rent agreement dated 13.6.2006. It is alleged by him that in the month of ^ January, 2007, in pursuance to the directions issued by the Hon'ble ^ Supreme Court, the MCD started demolition drive in the area and respondent No.l had accordingly persuaded the appellant that it would be profitable to purchase the shop in question. Accordingly, the appellant is stated to have entered into an agreement to purchase the shop from the respondent No.l for a total consideration of ^2,50,000/- out of which an A_ amount of ^1,40,000/- is purported to have been paid by the appellant to the respondent No.l under an agreement-cum-receipt on 26.2.2007. It is alleged that the appellant was always ready and willing to perform his part of the contract and had even offered to pay the balance amount of ?1,10,000/- to the respondentNo.l by 26.6.2007 so as to perfect his title. The date has relevance on account of the fact that the entire transaction was to be completed by 26.6.2007. Since the respondent No.l did not R.S.A. Nos.140/2011 & 144/2011 Page 2 of10 )/ come forward to complete the transaction, the appellant was constrained to file a suit bearing No.736/2007 for specific performance and permanent injunction against the respondents for perfecting his title. This suit was allegedly filed by the appellant in the first week of July, 2007. The appellant further alleges that the respondent No.l, as a counter blast to this suit, also chose to file a suit bearing No.393/2007 for possession, permanent injunction, damages and recovery of rent. Both these suits ^ were clubbed together and after completion ofpleadings and framing of the issues, the parties were permitted to adduce evidence and both the suits were decided by the learned trial court vide a common judgment on 28.9.2010. The suit of the appellant for specific performance was dismissed while as the suit filed by the respondent No.l for possession, damages, permanent injunction and recovery ofrent was decreed.

3. Feeling aggrieved by the said judgm^ent, the appellant herein V preferred two separate appeals against the two orders passed vide a comm.onjudgment. These appeals were R.C.A. No.81/2010 and 6/2011. Both these appeals were decided by the learned Additional District Judge against the appellant by a common detailed order on 4.6.2011. The appellate court affirmed the finding of fact returned by the court below ) sj R.S.A. Nos. 140/2011 & 144/2011 Page 3 of10 A that the appellant herein was not able to prove the grant of relief of specific performance in respect of the suit property in his favour while as the appellant himself had admitted that he was inducted as a tenant in respect of the,shop in question. Though, the testimony of the respondent No.l in this regard was slightly shaky but nevertheless as the appellant himself had admitted that he is the tenant inducted by the respondent, the suit for possession, permanent injunction and damages, etc., was allowed.

4. Still feeling aggrieved by the dismissal of his both the appeals, the appellant has preferred the present regular second appeals.

5. I have heard Mr. Dateer, the learned counsel for the appellant on these appeals. He has contended that both these appeals raise a substantial question of law and, therefore, deserve to be heard on merits. For urging the point that what constitutes a substantial question of law, Mr. Dateer has referred to the judgments passed in Janki Dhobi & Ors. vs. Sitaram Singh & Ors.; AIR 1985 PATNA 140 and Civil Appeal No.5781/2008 titled Jatinder Singh & Anr. Vs. Mehar Singh & Ors. and has contended that the Ikrarnama, which was a receipt-cum-agreement to sell the shop in question to the appellant, could not be exhibited and, therefore, he had filed an application under Order 41 Rule 27 CPC before A- R.S.A. Nos.140/2011 & 144/2011 Page 4 of10 V the first appellate court which has not been dealt with. A photocopy of the said document was annexed as Mark-A by the counsel for the respondent. It is further contended that this constitutes a substantial question of law and the matter deserves to be heard. With regard to the production of additional evidence, the learned counsel has placed reliance.on the judgments passed in Sankaranarayanan vs. Rama Gupthan; 1979 Kerala Law Times 744 and in Thatithoi Chiru & Ors. vj'. Nirigampao Kabui & Ors.; AIR 1990 Gauhati 7 and in essence, the learned counsel has contended that he be given an opportunity to adduce additional evidence to prove the agreement to sell in his favour.

6. So far as R.S.A. No.144/2011 against the decree of possession, arrears of rent and damages is concerned, the learned counsel raised a grievance that none of the issues, which the appellant wanted to be framed in the suit, has been actually framed and, therefore, this has v- resulted in serious prejudice to the appellant. The counsel has not been able to formulate or point it out these issues which ought to have been framed. Therefore, this submission is totally inchoate.

7. I have carefully considered the submissions made by the learned counsel and have gone through the judgments of the two courts below. I R.S.A. Nos. 140/2011 & 144/2011 Page 5 of10 have also gone through the judgments that have been cited by the learned counsel for the appellant.

8. There is no dispute about the fact that according to Section 100 of the CPC, the second appeal is permissible only when a substantial question of law is involved. As to what is meant by a substantial question of law is no more res integra. In this regard, the courts have consistently -•* held that a question which is not decided by the court earlier and which ^ has wide ramifications will be a substantial question of law and this cannot be put in a straight jacket formula and would vary from case to case. Nevertheless, it has also been held that a finding of fact arrived at by the court below, which is not supported by the evidence or which is perverse or which is grossly eiToneous and cannot be substantiated, will /U also involve a substantial question of law.

9. So far as the present case is concerned, admittedly, the case of the appellant was that the respondent No. 1 is purported to have executed an agreement dated 26.2.2007 for the sale of the shop in question for a total consideration of f[2],50,000/-. This document ought to have been proved by the appellant while as the appellant has not proved this document. Only a photocopy of the document/Ikramama has been exhibited which X R.S.A. Nos.140/2011 &144/2011 ^ Page 6of10 v' is purported to be thumb marked by the respondent No.l. The document admittedly was signed by some witnesses also and it has come on record that apart from the bare uncorroborated statement of the appellant, as a plaintiff in a suit for specific performance, there is no corroborative evidence brought on record by him. He has not examined any of the witnesses to the document and even the handwriting or the finger print A expert has not been examined to establish that the document in question - was signed by the respondent No.l. The agreement to sell was allegedly bearing the thumb mark of the respondent No.l and for this purpose; finger print expert could have been examined to obtain an opinion more so, when the respondent was denying having- signed any document or having,put his thumb impression on the same. Therefore, this factum was not proved by the appellant that the document of agreement to sell or agreement to purchase was proved by preponderance of probabilities. The appellant, in the first appeal, filed an application under Order 41 Rule 27 CPC to produce additional evidence. In the first instance, the first appellate court ought to have passed an order rejecting the application. It is not clear as to whether any order on the said application was passed or c R.S.A. Nos.140/2011 & 144/2011 Page 7 of10 A - -V'. 2^ not. The appellant has neither placed on record the order sheet nor is it his case that this application was not considered at all.

10. Normally, the application for additional evidence would be permissible only when the evidence, which is sought to be produced additionally by the appellant, is a kind of evidence (oral or documentary) which was either not within the control or knowledge of the appellant or it is newly discovered evidence. The purpose of additional evidence is not to till up the lacunas left in the case of a party. The appellant/plaintiff having sufficient opportunity to adduce evidence before the trial court / and having failed to do so, cannot be permitted to fill up the lacunae at the belated stage by simply filing an application under Order 41 Rule 27 CPC. That is not the purpose of Order 41 Rule 27 CPC because in case the purpose of Order 41 Rule 27 is made available to a litigant for the purpose of filing up of the lacunae then practically no trial would see the light of the day because in successive forums, the appellant may be induced to file an application for production of additional evidence.

11. As against this, the learned trial court as well as the appellate court has clearly dealt with the evidence produced by the respondent, who has examined not only himself but additionally two more witnesses. The R.S.A. Nos.140/2011 & 144/2011 Page 8 of10 >/ learned trial court has no doubt commented on the demeanor of the respondent by saying that his testimony is slightly shaky. This testimony of the respondent being shaky looses significance because the appellant himself has admitted that he was inducted as a tenant in the suit premises. If that be the position, a fact which is admitted need not be proved because the whole purpose of an admission is to reduce the area of controversy and that is why, the admission and denial of documents takes place before framing of issues. Therefore, I do not find any infirmity so far as the factual findings are concerned and they can certainly be not said to be perverse because it has withstood the scrutiny of two courts below and a concurrent finding has been returned in this regard.

12. So far as the judgments which have been relied upon by the appellant are concerned, I have gone through the same and they are not applicable to the facts ofthe present case because the factum of additional evidence being adduced or permitted to be adduced at the second appeal stage has been observed to be permissible, provided the appellant is able to show that the document which is sought to be produced now, at this point of time, will have a vital bearing and it was not within the power and control ofthe party concerned. cL 'V R.S.A. Nos. 140/2011 & 144/2011 Page 9 of10

13. In view of the above, the appellant has not been able to establish before this court that any substantial question of law is involved in any of the two matters. Rather, the questions which have been formulated by the appellant are essentially questions pertaining to appreciation of evidence which the two courts have already undergone.

14. For the reasons mentioned above, I am of the considered opinion •0^^ that no substantial question is involved in the matter and accordingly, I both the appeals are without any merit and the same are dismissed. Vy' MARCH ^'',"2013 V.K. SHALI, J.,