SHRICHAND Vs. TEJINDER SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiff under Clause 10 of the Letters Patent against the order of single Judge in Misc. 1st Appeal No. 151 of 1975 dated 278-1976 by which the learned single Judge has set aside the ex parte decree passed against the respondents. The 1st Additional District Judge, Jabalpur, had dismissed the respondents' application for setting aside of the ex parte decree.

(2.) It is necessary to give a background of the present litigation between the parties in order to fully understand the facts and circumstances of the case. The suit out of which the present proceedings arise was filed by the plaintiff on 4-31968 for specific performance of contract of sale D/- 12-7-1958 and for recovery of Rs. 4,750/- on account of the oat-standing interest. The plaintiff's case was that he was in need of money for filing an appeal in the High Court against his father Komalchand and other members of his family against the decree in a partition suit. Raghubir Singh, father of the respondents, was a tenant of Komalchand and he had a decree for eviction against Raghubir Singh. When the plaintiff approached Raghubir Singh he agreed to advance the required amount of Rs. 2,000/- provided the plaintiff executed sale-deed in his favour in respect of house No. 166, Napier Town, Jabalpur, in which he was a tenant. The plaintiff accordingly executed a registered sale-deed for Rs. 10,000/- in favour of Raghubir Singh though only Rs. 2,000/- was paid and the balance amount of Rs. 8,000/- remained with Raghubir Singh on the condition that he would pay interest at the rate of 1% per month and whenever within 10 years the plaintiff would return the sum of Rs. 2,000/-Raghubir Singh would execute a deed of reconveyance. On the same day, a registered agreement of reconveyance was also executed by Raghubir Singh in favour of the plaintiff. Raghubir Singh paid interest up to 12-2-1961 but thereafter he stopped paying interest. The plaintiff used to pass receipts for the payments of interest. The interest accrued after 12-2-1961 came to Rs. 6,750/-and after adjusting the loan of Rs. 2,000/-taken by the plaintiff, the balance amount of Rupees 4,750/- remained outstanding against Raghubir Singh. The plaintiff asked Raghubir Singh to execute a reconveyance deed but on one pretext or another Raghubir Singh was avoiding to execute the deed, hence this suit was filed against the present respondents as Raghubir Singh died on 9-2-1968. The defendant No. 1 alone filed his written statement and resisted the claim in suit and denied that only Rs. 2,000/- was paid towards the sale-deed of 12-7-1958. In fact, their father Raghubir Singh paid the balance amount of Rs. 8,000/-on 4-5-1963 and the plaintiff had passed receipt. Since the plaintiff has not complied with the agreement of reconveyance by tendering the amount of Rs. 10,000/-he was not entitled to any relief in the suit. Raghubir Singh had paid all the interest that was due on the amount of Rs. 8,000/- till 4-5-1963.

(3.) The plaintiff contended that the receipt was a forged and fabricated document and a stamp containing his signature in one of the receipts passed by him towards the interest paid by Raghubir Singh has been lifted and this receipt of 4-5-1963 has been manufactured. The two attesting witnesses to this receipt are real maternal uncles of respondents and a commission was issued from time to time for examination of these two witnesses. Ultimately, the witnesses could not be examined as one of them residing at Delhi refused to give evidence and the other who was residing in Calcutta was alleged to have later shifted to Delhi and did not attend before the Commissioner and left for Jallander but the defendants stated that they would examine him in Court and did not agree to wait for his return to Delhi. On 20-10-1973 the trial Court proceeded ex parte against the defendants and an ex parte decree was passed on 1-11-1973. However, the ex parte decree was set aside on 8-5-1974. Though the learned trial Judge found that no sufficient cause was shown for setting aside of the ex parte decree, but since the defendant No. 1 wanted to contest the suit an opportunity should be given to contest the suit in the interest of equity and justice by awarding cost of Rs. 350/-. Thereafter, the defendants again remained absent on 1-11-1974 and an ex parte decree was passed on that day after recording evidence of the plaintiff as the counsel for the defendant No. 1 reported no instructions.