MOHAMMAD ABDUL HAKEEM Vs. NAIYAZ AHMED

JUDGEMENT

(1.) Sri Wasim Ahmed Khan representing the appellants had pointed out that on 8-1-2003 this Court admitted the Second Appeal on the following grounds: 1. Whether under Section 2(d)(e) of the Contract Act, an agreement which is not signed by the vendee, but only signed by the vendor is a concluded contract or not ? 2. Whether under the provisions of the Specific Relief Act, a concluded contract which is not signed by the vendee can be a complete contract, and whether a suit on the basis of an unconcluded contract can be filed for specific performance of the same ?

(2.) In C.M.P.No.24829/2002 on the self-same day, an order of status quo was granted and the Second Appeal was directed to be posted immediately after Sankranti vacation. The learned Counsel also pointed out that apart from the substantial questions of law referred to supra, several other substantial questions of law also are involved and the said questions are as hereunder : 1. Whether the Judgment and decree of the appellate Court are not vitiated for non-framing of Points for consideration in accordance with Order 41 Rule 31 of the Code of Civil Procedure? 2. Whether the suit as framed is maintainable in view of the Section 15 of the Specific Relief Act 1963 ? 3. Whether examination of G.P.A. as PW-1 would be sufficient even in the absence of the plaintiff ? 4. Whether denial of execution of agreement of sale by 2nd defendant in the written statement was appreciated in accordance with law by framing the relevant Issue especially in view of Order 22 Rule 4(2) of the Code of Civil Procedure ? 5. Whether the motive for fabrication of Exs.A-2 and A-3 had been appreciated in proper perspective ? 6. Whether the Courts below had not recorded perverse findings in relation to Exs.A-2 and A-3 especially in the light of the contradictory evidence of PW-1 and PW-2 on essential aspects ? 7. Whether the Courts below are justified in comparing the disputed signatures without the assistance of an expert opinion in the peculiar facts and circumstances of the case ?

(3.) The learned Counsel while elaborating his submissions had pointed out to the findings recorded by the Court of first instance and also the appellate Court and the contradictory statements made by PW-1 and PW-2 in relation to payment of consideration and the place where the payment was made and had commented that though these are findings in relation to facts, definitely they are perverse findings. The learned Counsel also had pointed out to para-7 of the Judgment of the appellate Court where a cryptic point for consideration was framed which would not convey any meaning at all. The learned Counsel also made elaborate submissions on the aspect of validity of Exs.A-2 and A-3 and the specific denial relating to the same in the written statement filed by the 2nd defendant. The Counsel would maintain that along with the 1st defendant, the 2nd defendant also was originally impleaded as a party and on whatever ground it may be, as a original party to the litigation, the 2nd defendant is entitled to take a specific stand of questioning the validity of Exs.A-2 and A-3 and hence the approach adopted by both the Courts below that the 1st defendant who was alive at the relevant point of time and who had the opportunity to deny the same had not denied and hence it can be taken that these documents Exs.A-2 and A-3 are genuine, cannot be sustained. The Counsel also would maintain that the 2nd defendant was impleaded as a party even while instituting the suit and the other defendants were brought on record after the death of the 1st defendant and hence the principle that the legal representatives cannot take any stand inconsistent or contrary to the stand taken by the original defendant may not be applicable in the facts and circumstances of the present case. The Counsel also would maintain that in this regard a specific issue may have to be framed and proper findings are to be recorded. The learned Counsel also while further elaborating his submissions had taken this Court through the evidence of DW-1 where the motive for fabrication of Exs.A-2 and A-3 also had been pointed out. In the light of the reasons in detail explained by DW-1, the Counsel contended that the relief of specific performance should not have been granted. The learned Counsel also had pointed out certain inherent improbabilities and would contend that no prudent man who had paid almost the total sale consideration except a paltry sum would keep quiet and for such sufficiently a long time and would not approach the Court after long lapse of time. The learned Counsel also contended that there was no prior notice even before the institution of the suit and whether the question of limitation is raised or not, it is the duty of the Court to record a finding even on the question of limitation and since the suit is barred by limitation, the relief should have been negatived by the Courts below. The learned Counsel also would point out that though the disputed signatures can be compared with the admitted signatures by the Court, normally that practice should not be resorted to and it is always better and safe to have an opinion of expert in this regard and inasmuch as the burden is on the plaintiff to prove this aspect, this question also should have been seriously considered by both the Courts below. The learned Counsel also made elaborate submissions relating to the nature of the contract and would contend that unless both the vendor and the vendee sign the agreement of sale it should be taken to be a unilateral contract and on the strength of such document a suit for specific performance cannot be maintained. Attention was drawn to several provisions of the Indian Contract Act 1872 in this regard. Reliance also was placed on certain decisions to substantiate his contentions.