SHANTI DEVI Vs. RAM SAHAI

JUDGEMENT

(1.) THIS civil first appeal under Section 96 C. P. C. has been filed against the judgment and decree passed by the Addl. District Judge No. 6, Jaipur City, Jaipur in Civil Suit No. 155/1991, whereby suit for recovery of Rs. 18,840/- has been dismissed.

(2.) THE facts in brief are that appellant-plaintiff filed a suit in the trial court with the averments that respondentdefendant applied for allotment of a house in the Rajasthan housing Board and for that purpose his application was registered with the Housing Board on depositing a sum of rs. 4600/ -. Since the defendant was in need of money and plaintiff was in need of a house so the defendant agreed to transfer his rights in relation to the house allotted to him to the plaintiff for Rs. 11,000/- to which the plaintiff agreed and an agreement was executed on 28. 11. 1985. It is also averred that plaintiff paid a sum of Rs. 11,000/- to the defendant and defendant at the time of executing the agreement also executed a will and a registered power of attorney in favour of plaintiff. It is further averred that defendant on receiving information from the Rajasthan Housing board that as per Lottery his allotment has been reserved, therefore, he was required to deposit reservation money Rs. 6000/- within a month, second installment of Rs. 6000/- before 7 months and third installment of Rs. 4,400/-before 13 months failing which interest at the rate of 24% per annum would be charged. The plaintiff as per the information supplied by defendant deposited Rs. 6000/- on 25. 10. 1988 and rs. 6000/- on 7. 2. 1989 but when time came for depositing the third installment, the defendant persuaded the plaintiff to cancel the agreement dated 28. 11. 1985 after receiving the amount from him paid by the plaintiff earlier. It is also averred that in view of persuasion made by the defendant another agreement was executed on 31. 12. 1989 by which the earlier agreement dated 28. 11. 1985 was cancelled and the defendant returned rs. 11000/- only to the plaintiff and for the rest of Rs. 12,000/-the defendant promised to pay after some time but the same was not paid. Therefore, it became essential to file suit for recovery of balance amount of Rs. 12,000/- along with interest. The defendant-respondent filed written statement, wherein it was admitted that two agreements were executed between the parties; one was dated 28. 11. 1985 for transfer of the allotted house to the plaintiff and another agreement dated 31. 12. 1989 by which the earlier agreement was cancelled as the total amount was paid. It was also specifically stated inter alia in the written statement that no amount was due against defendant. The suit was filed only to harass him, therefore, the suit was liable to be dismissed. The learned trial court on the basis of pleadings of the parties framed two issues including the relief. In the evidence plaintiff-appellant examined herself as P. W. 1 and the defendant got examined himself as D. W. 1 and other two witnesses namely Nand Kishore Notary Public and Anil Kumar d. W. 3 his son. The learned court after conclusion of the trial and after hearing final submissions in the matter dismissed the suit vide judgment and decree dated 20. 5. 1993. Hence the present appeal has been filed.

(3.) IT has been contended by the learned counsel that in the instant case, the learned trial court has failed to properly appreciate the agreement executed between the parties because photo stat copy of the agreement kept by the plaintiff would show that in original agreement interpollution was made by adding some words, which were not earlier when the agreement was signed by the plaintiff. It is also contended that defendant and his witnesses in connivance with each other committed offence of perjury as false document was prepared as in the photo stat copy of the agreement kept by the plaintiff. The words, which were added by the defendant subsequently were missing.