R.B.S. CHAHAL Vs. CHANDER PRAKASH MALHOTRA

JUDGEMENT

(1.) The civil revision has been brought under Article 227 challenging the order dismissing a petition filed for rejection of a plaint. The suit had been filed by the respondents for declaration that the sale deed dated 07.04.1998 as regards 1/8th share claimed by the plaintiff in the house in Sector 10, Chandigarh said to have been made in favor of the defendant-petitioner before this Court purporting to be in execution of a decree for purchase of the undivided share in suit for partition, was null and void. The defendant claimed to be a third party purchaser of 7/8th share from members of the family while the plaintiff was the person in possession of a fractional share. The suit for partition yielded to a decree demarcating the respective entitlements of parties and purchase by third party itself had come about during the pendency of the suit. In the final decree proceedings, the report was that the property was not capable of being divided and by the intervention of a Court order from this Court, the property was directed to be sold amongst the sharers themselves after determination of a price and the first option was to be given to the plaintiff himself as a person in possession and if the amount of 7/8th share could not be paid then the defendant could exercise the right of purchase of the 1/8th share. It was pursuant to the final decree and direction of this Court that determination of price was said to have been made and on the alleged inability of the plaintiff to pay the 7/8th share as determined, the defendant purported to purchase plaintiffs 1/8th share under the sale deed dated 07.04.1998. The suit had been filed on a plea that the Court was misled into thinking that the consideration for the payment had been made by deposit in the manner known to law but actually the consideration had not been made and therefore, the sale was vitiated. The defendant's contention was that the plaintiff had engaged himself in vexatious litigation over long period of time and he has caused obstruction at every turn, right from the stage from the preliminary decree to the final decree and still later to the stage when the valuation of the property was determined and when the property was to be bid amongst sharers. The suit itself was yet another attempt to lock up the property in a long drawn litigation. The defendant would contend that even before the date of sale on 07.04.1998, the defendant had delivered a banker's cheque drawn in the name of the plaintiff and submitted to Court and the Court had received the cheque. The custody of the cheque which in legal parlance would be a custodia legis must be taken to be a valid tender and the plaintiff, who deliberately failed to take custody of the document from Court, was taking advantage of his own lapse and was trying to make out a case as though the consideration had not been paid. The defendant had moved, therefore, an application under Order 7 Rule 11 to contend that the suit was vexatious and it was without a valid cause of action. The cause of action alleged that there had been a fraud, which was already agitated in various forums upto the High Court when the sale was held in execution of the final decree were all rejected at every forum upto the Supreme Court. The defendant could take possession after a long period of time and the cause of action as urged in the suit is purely a make belief cause of action for the purpose of filing the plaint but there exists really no valid cause of action since the consideration had validly passed and there was proof on the file of the Court to support the validity of transaction of sale.

(2.) At the stage of revision after some brief arguments, I wanted to assure to myself that the payment said to have been made by the defendant in Court was as per law since the plaintiff had a fundamental objection raised in the plaint that a fraud had been practised on Court that the consideration had been paid when actually it was not done. The contention was that on the date of sale, the amount had not been even credited to the suit and the sale deed had been executed even without consideration having come to the Court. Since it was contended by the defendant that the amount had been credited to the treasury in the manner directed by this Court already, I had summoned the Treasury Officer and allowed for evidence to be brought with reference to their original registers. I had also given opportunities to both parties to cross-examine the Treasury Officer, who was examined as Court witness. The evidence brought through the Treasury Officer bears out that a cheque No. 106221 issued on 08.01.1996 was taken in the name of the plaintiff but it had not been delivered and accepted by the plaintiff but taken by the Court in its custody and sent to the District Treasury Officer. The Treasury Officer who was brought before Court as a witness had given evidence relating to the usual procedures, which are adopted for taking custody of the Court deposits and his evidence would show from the register that the amount of Rs. 2,50,000/- had been received to the credit of the suit titled R.B.S. Chahal v. Chander Paraksh Malhotra, on 23.07.2001. The treasury cheque appears to have been encashed by the Court and put in FD on 04.06.2002. There had been cross examination of this witness both at the instance of the plaintiff and the defendant and it was attempted to be elicited by the plaintiff that the receipt of the cheque in the name of a private party was not in conformity with Rules. There were certain objections taken with reference to the fact that the bank itself could not have accepted the deposit without a seal enfacing the challan and the banker's cheque drawn in the name of the party could not have been validly accepted through a challan for the bank in turn to give credit to the Treasury Officer as amount brought through the Treasury. Officer.

(3.) There are certain issues relating to the manner of deposit which would require to be examined and I would not undertake the exercise, for it would mean concluding an issue of what the trial Court is bound to do and a decision from this Court at this time would again mean closing an advantage for party to take an adjudication by trial Court and subject it for a reappraisal at a higher forum. If litigations have to come to a stop, a short-cut can never be that a case is instituted at the higher Court straight away. The different tiers of judicial administration are necessary in order that reappraisals are done and there is an accumulated wisdom at various tiers for every higher Court to adjudge making a judgment of how the matter has been deliberated at one level so that another opinion can also be seen setting it up against one opinion and the decision taken. The dialectics of judicial discourse with two conflicting opinions that yield to a view is perhaps the best test of a considered opinion.