PRITAMDAS Vs. AKABARI

JUDGEMENT

(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 : -

(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.) THE case was fixed for filing written statement on 11.9.1959. On that date, an application was made for extending the time for filing the written statement. On that very day the plaintiff had moved an application alleging therein that the defendants were colluding and conspiring to prepare an antedated false document. The case was, however, adjourned to 18 -9 -1959. On the adjourned date, the third defendant filed their written statement, but the alleged agreement was not filed. Subsequently, written statements were also filed oh behalf of defendants 1 and 2. On 15 -10 1959, the Court ordered the parties to produce original documents. On 27 -10 -1959, the date fixed for that purpose, the plaintiff filed his documents. The defendants stated before the Court that they had no documents to file. The case was fixed for issues on 24 -11 -1959. The issues were framed on 16 -12 -1959 and the case was fixed for 26 -12 -1959 for filing the lists of witnesses. On 26 -12 -1959 the plaintiff filed his list of witnesses. The defendants 1 and 2 stated that they did not wish to file any list of witnesses, while the third defendant took time.