Reportable

IN THE SUPREME COURT OF  INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No.  6956 of 2004

H. Siddiqui (dead) by Lrs.           ...Appellant  

Versus

A. Ramalingam                    ...Respondent

J U D G M E N T

Dr. B. S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order  

dated 3.2.2004 passed by the High Court of Karnataka at Bangalore  

in Regular First Appeal No. 265 of 1999.  

2. FACTS:

(A) The Appellant who had been inducted as a tenant at an initial  

stage filed suit No. 30/1981 on 1.1.1981 for specific performance of  

contract in the City Civil Court, Bangalore alleging that the power of

attorney holder  of the respondent  entered into the agreement dated  

25.6.1979 to sell the suit property i.e. 1/3rd share of the respondent in  

the property being No.43, Mission Road, Shanti Nagar, Bangalore-27  

to him for a consideration of Rs.40,000/- by receiving an advance of  

Rs.5,000/-.  

(B) The said agreement was duly registered and according to the  

terms incorporated therein,  the sale deed was to be executed on or  

before 30.12.1980.  The respondent failed to take necessary steps to  

act  according to  the  agreement.  Thus,  the  appellant/plaintiff  issued  

notice to the respondent on 5.3.1980 through his lawyer.    

(C) The appellant/plaintiff  allegedly paid the balance amount  on  

15.5.1980. As the time limit for the execution of the sale deed had  

expired,  and the sale deed was not  executed,  the appellant/plaintiff  

filed the suit for specific performance.  

(D) The respondent denied the execution of any power of attorney  

in favour of his brother with regard to alienation of the property. In  

fact the power of attorney had been given only for management of the  

property and not creating any right to transfer the same.   

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(E) In view of the pleadings, the Trial Court framed issues and after  

conclusion of the trial decreed the suit vide judgment and decree dated  

3.11.1998.  

3. Being aggrieved, the respondent preferred Regular First Appeal  

No. 265 of 1999 before the High Court of Karnataka which has been  

allowed by the impugned judgment and decree dated 3.2.2004. Hence,  

this appeal.  

4. Shri K. K. Mani, learned counsel appearing for the appellant  

has submitted that as the appellant had proved that the agreement to  

sell dated 25.6.1979 was not obtained by the appellant through any  

kind of fraud, there was no justification for the High Court to set aside  

the judgment and decree of the Trial Court for specific performance  

on  the  grounds:  the  property  was  situated  in  Bangalore;  the  sale  

consideration was inadequate; and as a result of a long lapse of time  

on account of pendency of the case before the courts there has been a  

steep  rise  in  the  market   value  of  the  property.  There  can  be  no  

justification for not giving effect to the registered agreement to sell.  

The  appellant  had  paid  a  sum  of  Rs.65,500/-,  though   the  

consideration as per the agreement had been only to  the extent of  

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Rs.40,000/-. The judgment and order of the High Court is liable to be  

set aside for the reasons that geographical location of the property or  

inadequate  consideration  and  rise/escalation  of  price  during  the  

pendency of the case in court cannot be the grounds for reversal of the  

judgment and decree of the Trial Court.  

5. On  the  contrary,  Shri  Rajiv  Dutta,   learned  senior  counsel  

appearing for the sole respondent has vehemently opposed the appeal  

contending that the respondent never executed the power of attorney  

in  favour of  his  brother  enabling him to transfer  the  suit  property.  

Power of attorney had never been filed before the Trial Court nor had  

it  been  proved.  The  photocopy  of  the  same  was  shown  to  the  

respondent during the time of his cross-examination  wherein he has  

admitted  his  signature  thereon  only.  The  respondent  had  never  

admitted its contents or genuineness of the same. Therefore, the power  

of attorney itself  had not been proved in terms of Sections 65 and 66  

of the Indian Evidence Act, 1872 (hereinafter called Act 1872) and,  

thus the question of proceeding further by the Trial Court could not  

arise.  More so, it  is not probable that the  appellant paid a sum of  

Rs.65,500/-   instead  of  Rs.40,000/-  as  consideration  fixed  in  the  

agreement to sell. The agreement dated 25.6.1979 contained clause 11  

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according  to  which  if  the  sale  deed was not  executed,  the  earnest  

money  of  Rs.5,000/-  received  by alleged power  of  attorney  holder  

would be refunded to the purchaser together with the like amount of  

Rs.5,000/- as liquidated damage for breach of contract.   Thus, at the  

most, the appellant was entitled to receive a sum of  Rs.10,000/- but  

the question of decreeing the suit could not arise.   The appellant had  

been a tenant. He never paid any consideration. Earlier there has been  

a prior sale of 1/3rd share in the same property (share of the brother of  

the respondent) in favour of D. Narendra  and  the appellant  had filed  

the suit against him also claiming that the said part of the property  

could have been sold to him.  The alleged payment of Rs.65,500/- or  

Rs.40,000/- as a sale consideration is nothing but mis-representation  

by showing forged receipts prepared by the appellant in collusion with  

the son of the alleged power of attorney holder at the time of litigation  

with  D.  Narendra.   The  appeal  lacks  merit  and  is  liable  to  be  

dismissed.  

6. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.  

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7. Admittedly, there had been litigation between the appellant and  

other  co-sharers  when 1/3rd share  of  the  said  property  was  sold  in  

favour of D. Narendra by the brother of the respondent.  Appellant  

herein  has lost  the  said case.  Before the Trial  Court,  the appellant  

while filing the suit has impleaded the respondent and his brother, R.  

Viswanathan,   the  alleged  power  of  attorney  holder.   In  the  First  

Appeal, before the High Court, both of  them had been the parties.  

However, before this Court the alleged power of attorney holder, R.  

Viswanathan, has not been impleaded as respondent for the reasons  

best known to the appellant.  

8. The  Trial  Court  taking  into  consideration  the  pleadings  had  

framed the following issues:-   

“1. Whether the defendants prove that the agreement  of  sale  dated  25.6.1979  was  taken  by  the  plaintiff  by  practicing  fraud on the  II  defendant  as  per  the  written  statement of D1 and D2?

2. Whether the plaintiff proves payment of amount as  alleged in the plaint?

3. To what relief the plaintiff is entitled to.

Additional Issues:  

1. Whether  the  suit  is  bad  for  non-joinder  of  necessary parties?

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2. Whether  the  agreement  dated  25.6.1979  is  unenforceable?”

9. In  view  of  the  pleadings,  as  the  respondent  has  specifically  

denied  the  execution  of  a  power  of  attorney  in  favour  of  R.  

Viswanathan,  defendant No.2 in the suit (not impleaded herein), the  

main issue could be as to whether the power of attorney had been  

executed by the respondent in favour of R. Viswanathan enabling him  

to  alienate  the  suit  property  and  even  if  there  was  such  power  of  

attorney whether the same had been proved in accordance with law.  

10. Provisions of Section 65 of the Act 1872 provide for permitting  

the parties to adduce secondary evidence. However, such a course is  

subject  to  a  large  number  of  limitations.  In  a  case  where  original  

documents are not produced at any time, nor, any factual foundation  

has been led for giving secondary evidence, it is not permissible for  

the  court  to  allow  a  party  to  adduce  secondary  evidence.    Thus,  

secondary  evidence  relating  to  the  contents  of  a  document  is  

inadmissible, until the non production of the original is accounted for,  

so as to bring it within one or other of the cases provided for in the  

section.  The  secondary  evidence  must  be  authenticated  by  

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foundational evidence that the alleged copy is in fact a true copy of  

the  original.  Mere  admission  of  a  document  in  evidence  does  not  

amount to its proof. Therefore, the documentary evidence is required  

to be proved in accordance with law.  The court has an obligation to  

decide  the  question  of  admissibility  of  a  document  in  secondary  

evidence  before  making  endorsement  thereon.  (Vide:  The  Roman  

Catholilc Mission  & Anr. v. The State of Madras & Anr.,  AIR  

1966 SC 1457;   State of Rajasthan & Ors. v. Khemraj & Ors.,  

AIR 2000 SC 1759; Life Insurance Corporation of India & Anr. v.  

Ram Pal Singh Bisen, (2010) 4 SCC 491; and  M. Chandra v. M.  

Thangamuthu & Anr., (2010) 9 SCC 712).  

11. The Trial Court decreed the suit observing that as the parties  

had  deposed  that  the  original  power  of  attorney  was  not  in  their  

possession, question of laying any further factual foundation could not  

arise.  Further, the Trial Court took note of the fact that the respondent  

herein  has  specifically  denied  execution  of   power  of  attorney  

authorising his brother R. Viswanathan to alienate the suit property,  

but brushed aside the same observing that it was not necessary for the  

appellant/plaintiff to call upon the defendant to produce the original  

power of attorney on the ground that the photocopy of the power of  

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attorney was shown to the respondent herein in his cross-examination  

and he had admitted his signature.  Thus, it could be inferred that it is  

the  copy  of  the  power  of  attorney  executed  by  the  respondent  in  

favour of his brother (R. Viswanathan, second defendant in the suit)  

and  therefore,  there  was  a  specific  admission  by  the  respondent  

having executed such document. So it was evident that the respondent  

had authorised the second defendant to alienate the suit property.  

12. In our humble opinion,  the Trial  Court  could not  proceed in  

such an unwarranted manner for the reason that the respondent had  

merely  admitted  his  signature  on  the  photocopy  of  the  power  of  

attorney and did not admit the contents thereof. More so, the court  

should  have  borne  in  mind  that  admissibility  of  a  document  or  

contents  thereof  may  not  necessary  lead  to  drawing  any  inference  

unless the contents thereof have some probative value.  

13.          In  State of Bihar and Ors. v. Sri Radha Krishna Singh &  

Ors., AIR 1983 SC 684, this Court considered the issue in respect of  

admissibility of documents or contents thereof and held as under:

“Admissibility of a document is one thing and its   probative value quite another - these two aspects   cannot  be  combined.   A  document  may  be   

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admissible and yet may not carry any conviction   and the  weight of its probative value may be  nil.”

14. In Madan Mohan Singh & Ors. v. Rajni Kant & Anr.,  AIR  

2010 SC 2933, this Court examined a case as a court of fifth instance.  

The statutory authorities and the High Court has determined the issues  

taking  into  consideration  a  large  number  of  documents  including  

electoral  rolls  and  school  leaving  certificates  and  held  that  such  

documents were admissible  in evidence.   This  Court  examined the  

documents and contents thereof and reached the conclusion that if the  

contents  of  the  said  documents  are  examined  making  mere  

arithmetical  exercise  it  would  lead  not  only  to  improbabilities  and  

impossibilities  but  also  to  absurdity.   This  Court  examined  the  

probative value of the contents of the said documents and came to the  

conclusion  that  Smt.  Shakuntala,  second  wife  of  the  father  of  the  

contesting parties therein had given birth to the first child two years  

prior to her own birth.  The second child was born when she was 6  

years of age; the third child was born at the age of 8 years; the fourth  

child was born at the age of 10 years; and she gave birth to the fifth  

child when she was 12 years of age.

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Therefore,  it  is  the  duty  of  the  court  to  examine  whether  

documents  produced  in  the  Court  or  contents  thereof  have  any  

probative value.

15. The Trial Court rejected the contention of the respondent that  

the appellant/plaintiff had paid more than what had been agreed in the  

agreement  to  sell,  and  hence  changed  the  terms  of  agreement  

unilaterally, observing that in such a fact-situation it cannot be said  

that the terms of the agreement had been unilaterally altered by the  

appellant/plaintiff.  Such  a  remark/observation  could  not  have  been  

made without  any explanation furnished by the appellant,  as  under  

what circumstances the appellant-purchaser, without being asked by  

the respondent-seller,  to enhance the consideration amount has paid  

more and it cannot be held to be natural human conduct in public and  

private  business.  Such  conduct  of  the  appellant  remains  most  

improbable.  

 16. The High Court while dealing with the First Appeal has framed  

only the following two issues:  

“(a) Whether the findings and reasons recorded   on issue Nos. 1 and 2 and Addl. Issue Nos. 1 & 2   by the Trial Court in holding that defendants have   

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not proved that they have not executed agreement   of sale in favour of plaintiff and the same has been   obtained by the plaintiff by making use of power of   attorney  holder  of  second  defendant  which   amounts to fraud and mis-representation warrant   interference with the same by this court in exercise   of its Appellate power and jurisdiction?

(b) Whether  the  Trial  Court  was  right  in  not   exercising  its  discretionary  power  under  sub- section (2) of Section 20 while granting judgment   and decree for specific performance in favour of   plaintiff if it has not exercised its power under the   above provisions of  the Act,  whether,  this  Court   has  to  remand  the  case  to  the  trial  court  after  setting  aside  the  judgment  and  decree  for  the  consideration regarding this aspect of the case?”  

17. The High Court failed to realise that it was deciding the First  

Appeal and that it had to be  decided strictly in adherence with the  

provisions  contained  in  Order  XLI  Rule  31  of  the  Code  of  Civil  

Procedure,  1908  (hereinafter  called  CPC)  and  once  the  issue  of  

alleged power of attorney was also raised  as is evident from the point  

(a)  formulated  by  the  High  Court,  the  Court  should  not  have  

proceeded  to  point  (b)  without  dealing  with  the  relevant  issues  

involved in the case, particularly, as to whether the power of attorney  

had been executed by the respondent in favour of his brother enabling  

him to alienate his share in the property.  

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Order XLI,  Rule  31 CPC:

18. The said provisions provide guidelines for the appellate court as  

to how the court has to proceed and decide the case.  The provisions  

should be read in such a way as to require that the various particulars  

mentioned therein should be taken into consideration.  Thus, it must  

be evident from the judgment of the appellate court that the court has  

properly appreciated the facts/evidence, applied its mind and decided  

the  case  considering  the  material  on  record.   It  would  amount  to  

substantial compliance of the said provisions if the appellate court’s  

judgment  is  based  on  the  independent  assessment  of  the  relevant  

evidence on all important aspect of the matter and the findings of the  

appellate  court  are  well  founded  and  quite  convincing.   It  is  

mandatory for the appellate court to independently assess the evidence  

of  the  parties  and  consider  the  relevant  points  which  arise  for  

adjudication and the bearing of the evidence on those points.  Being  

the final court of fact, the first appellate court must not record mere  

general expression of concurrence with the trial court judgment rather  

it must give reasons for its decision on each point independently to  

that of the trial court.  Thus, the entire evidence must be considered  

and  discussed  in  detail.  Such  exercise  should  be  done  after  

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formulating the points for consideration in terms of the said provisions  

and the court must proceed in adherence to the requirements of the  

said statutory provisions. (Vide:  Thakur Sukhpal Singh v. Thakur  

Kalyan Singh & Anr.,  AIR 1963 SC 146;  Girijanandini Devi &  

Ors.  v.  Bijendra  Narain  Choudhary,  AIR  1967  SC  1124;  G.  

Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3  

SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC  

600;  and  Gannmani  Anasuya  &  Ors.  v.  Parvatini  Amarendra  

Chowdhary & Ors., AIR 2007 SC 2380)

19. In  B.V.  Nagesh  &  Anr.  v.  H.V.  Sreenivasa  Murthy,  JT  

(2010) 10 SCC 551, while dealing with the issue, this Court  held as  

under:  

“The   appellate Court has jurisdiction to reverse   or affirm the findings of the trial Court. The first   appeal is a valuable right of the parties and unless   restricted by law, the whole case therein is open  for re-hearing both on questions of fact and law.   The  judgment  of  the    appellate  Court  must,   therefore, reflect its conscious application        of   mind     and   record    findings supported by   reasons,  on all  the issues arising along with the   contentions put-  forth and pressed     by    the   parties for decision of the appellate Court.  Sitting  as a court of appeal, it was the duty of the High  Court to deal with all the issues and the evidence   led  by  the  parties  before  recording  its  findings.   

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The    first    appeal is a valuable right and the   parties have a right to be heard both on questions   of law and on facts and the judgment in the first   appeal must address itself to all the issues of law  and fact and decide it by giving reasons in support   of  the  findings.  [Vide  Santosh  Hazari  vs.   Purushottam  Tiwari,  (2001)  3  SCC  179  and  Madhukar  and  Others  vs.  Sangram and  Others,   (2001) 4 SCC 756]”

20. More so, none of the courts below had taken into consideration  

Clause 11 of the agreement dated 30.6.1979 which reads as under:  

“11. In the event of any default on the part of the  vendors in completing the sale the earnest money  paid herewith shall be refunded to the purchasers   together with a like amount of Rs.5,000/- (Rupees   five  thousand  only)  as  liquidated  damages  for  breach of contract.”  

Thus, in case of non-execution of the sale deed, the appellant  

could get the earnest money with damages.  

21. So far as the issues of inadequate consideration and rise in price  

are concerned, both the parties have argued the same at length and  

placed  reliance  on  a  large  number  of  judgments  of  this  Court,  

including:  Chand  Rani  (Smt.)  (dead)  by  Lrs.  v.  Kamal  Rani  

(Smt.)(dead)  by  Lrs.,  AIR  1993  SC  1742;   Nirmala  Anand  v.  

Advent  Corporation  (P)  Ltd.  &  Ors.,  (2002)  8  SCC  146;  P.  

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D’Souza  v.  Shondrilo  Naidu,  (2004)  6   SCC  649;  Jai  Narain  

Parasrampuria (dead) & Ors. v. Pushpa Devi Saraf & Ors., (2006)  

7  SCC  756;  Pratap  Lakshman  Muchandi  &  Ors.  v.  Shamlal  

Uddavadas  Wadhwa  &  Ors.,  (2008)  12  SCC  67;  and  Laxman  

Tatyaba Kankate & Anr.  v.  Taramati  Harishchandra Dhatrak,  

(2010) 7 SCC 717.  

22. In view of the above, as we are of the considered opinion that  

the  courts  below  have  not  proceeded  to  adjudicate  upon  the  case  

strictly in accordance with law, we are not inclined to enter into the  

issue of inadequate consideration and rise in price.   

However,  the judgment impugned cannot be sustained in the  

eyes of law.  

23. In the facts and circumstances of the case, we remit the matter  

to the High Court setting aside its judgment and decree (impugned)  

and request the High Court to decide the same afresh in accordance  

with law, as explained hereinabove. As the case has been pending for  

three  long  decades,  we  request  the  High  Court  to  decide  it  

expeditiously.  However,  it  is  clarified  that  any  observation  made  

herein shall not adversely affect the cause of either parties.

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24. With  the  above  observations,  the  appeal  stands  disposed  of.  

There shall be no order as to costs.  

          ……………………..J.            (P. SATHASIVAM)

          ……………………..J.            (Dr. B.S. CHAUHAN)

New Delhi, March 4, 2011

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