PREM AGGARWAL Vs. DEVIKA GUPTA

JUDGEMENT

(1.) This is a suit for the specific performance of an agreement dated 27/10/1989 in respect of Property No. 127, Babu Park, Kotia Mubarakpur, New Delhi for aconsideration of Rs. 15,05,000.00. It has been stated that a sum of Rs. 101.00 had beenpaid in cash along with a cheque for a sum of Rs. 15,000.00 to late Sh. V.P. Guptasignificantly the suit was not filled during the life time of Late Shri V. P. Gupta thealleged signatory of the Agreement to Sale. In the Written Statement the contestingdefendants have stated, inter alia that Defendants No.2, the son of Late Shri V.P.Gupta had jointly purchased, with the latter, the property in suit. This is undoubtedlypurely a legal issue which would be determined in the context of and on a perusal ofthe registered sale Deed. However, the widow of Late Shri V.P. Gupta, DefendantNo. 1 as well as his son, Defendant No.2 have catergorically stated that the agreementrelied upon was not executed by Late Shri V.P. Gupta and that the documents filledby the Plaintiff are fabricated, forged, contain interpolations and are not in thehandwriting of Late Shri V.P. Gupta various others legal objections have beenraised including the submission that even if the forged document is taken intoconsideration, it does not contain all the necessary concomitants of an Agreement tosell and. therefore, has no legal efficacy. The Written Statement was filled on behalf ofDefendant No. 1 on 31/07/1996 and on behalf of Defendant No. 2 on 23rd April,7831996. Since then the case is languishing because of the Plaintiff's failure to file theReplication. The final opportunity for filling the Replication was granted by orderdated 15/07/1999. It contended by learned counsel for the Defendants that inorder to further protract proceedings the Plaintiff has filled the IA 10771/1999. Thepresent application is under order VI Rule 16 read with Section 151 of the code ofcivil procedure.

(2.) In support of the application learned counsel for the Plaintiff has submitted that insub-paras (i), (vii) of para-1 of the preliminary submissions the Defendants havementioned other transactions based on information received by them. It is hiscontention that this palpably is hearsay evidence and, therefore, these avermentsshould be struck of. The argument is misconceived. At this stage a party is expectedonly to plead material particulars. How these particulars are to be proved is left to thetrial stage. It is an unjustified prejudgment that these statements would be baired ashearsay since the defendants may well produce the witness from whom the statementoriginated. Thereafter, the general grievance that is made in these averments allegedlyslanderous in respect of the Plaintiff and her husband. The grievance is articulated ingeneral reference to para-2, 3 and 5 to 7 of the preliminary submissions. No doubt theDefendant has made reference to other transaction as well as levelled aspersionagainst immoral or rather unethical and unprincipled character of the Plaintiff and herhusband. The question is whether these pleadings to be struck of.

(3.) The suit is for specific performance of the contract, Had the execution of theagreement been admitted,perhaps the Plaintiff may have been justified in seekingrecourse to order VI Rule 16. In such a case what would have to be proved by theplaintiff is her readiness and willingness to perform the agreement and her conduct inthe existence and execution of other transaction may have been unnecessary,scandalous, frivolous or vexatious, where,however, as in the present case, Defendantshave provided instances where the Plaintiff has claimed to have entered into numerousother similar agreements, these facts would be relevant in order to establish whetherthe agreement was infact executed and also whether the Plaintiff had sufficient fundsto make payment against all these agreements. The execution of the documentsrelied upon by the Plaintiff is itself under challenge, on the ground that it is fabricatedand forged. The existence offacts substantiating this accusation by bringing in othertransaction is certainly relevant. It affords a valid defence in the suit. The building ofsuch facts is nor unnecessary frivolous or vexatious. If it discloses that the Plaintiff isinvolved in land scandals, it would not fall under the prescription of the word scandalousas used in this Rule. In a suit for specific performance it would be scandalous life forthe defendants to urge points on the personal life of the Plaintiff which would have nobearing on the defense put forward. This is not so in the facts and circumstances ofthe present case.