DHEERAJ DEVELOPERS PRIVATE LIMITEDversusDR. OM PRAKASH GUPTA AND OTHERS

                          [2016] 2 S.C.R. 29


          DHEERAJ DEVELOPERS PRIVATE LIMITED                                A
                                   v.
           DR. OM PRAKASH GUPTA AND OTHERS
                 (Civil Appeal No.1672 of2016 etc.)
                        FEBRUARY 23, 2016                                   B

        [KURIAN JOSEPH AND R. F. NARIMAN, JJ.)
      Specific Performance - Suit for specific performance -
Dismissed by trial court - Decreed by High Court in first appeal -
On appeal, held: High Court decreed the suit only on the basis of C
finding on genuineness of a document, while several other aspects
of the mat/er including the a~pect of readiness and willingness also
required consideration -Appeals allowed and remitted lo High Court
for hearing afresh.
    CIVIL APPELLATE JURISDICTION : CIVIL APPEAL No.
                                                                            D
16720F2016
      From the Judgment and Order dated 27.07. I 2 in FA No. 174 of
2005 dated 28.09.2012 in RP No. 305 of2012 dated 28.09.2012 in RP
No. 174 of2005 passed by the High Coui1 ofM.P. at Gwalior
                                 WITH                                       E
      C.A.No.1673of2016
                  &
      C.A. No. 1674-1675 of2016
       A.K. Srivastava, Vivek K. Tankha, Sr. Advs., Sushi I Kumar Jain,     F
Puneet Jain, Ms. Christi Jain, Abhinav Gupta, Manu Maheshwari, Apurv
Taran, Ms. Pratibha Jain, B.K. Satija, Talha Rahman, Nish it Agrawal,
M. ShoebAlam, Rameshwar Prasad Goyal, Varun Thakur, Ms. Shraddha
Saran, Shankar Divate, Harsh Parashar, Vaibhav Srivastava, Sachin Pujari,
S.S. Khanduja, Ms. Meenakshi Kalra, Yash Pal Dhingra, Vikrant Yadav,        G
Ms. Sakshi Kakkar, C.D. Singh, Tapan Trivedi, Advs., for the appearing
parties.
      The Judg_ment of the Court was delivered by
      KURIAN, J. I. We have heard learned counsel for the parties.

                                   29                                       H
30              SUPREME COURT REPORTS                          [2016] 2 S.C.R.


A          2. Delay condoned.
           3. Leave granted.
           4. By the impugned judgment, the High Court in First Appeal,
     against the judgment dated 8'" April, 2005 in Civil Suit No. 93A/l 996
     (renumbered Civil Suit No. 20A/200 I; 6A/2003) on the file of the Vlll
B    Additional District Judge, Gwalior, reversed the decree for specific
     performance.
           5. The Trial Court had framed the following issues:-

      S. No             ISSUE                               CONCLUSION
c
      I.      Whether defendant No.I             executed Unproved
              agreement to sell of suit land in favour of
              plaintif!S in the year 1975?

      2.      Whether defendant No. I had executed fresh Unproved
D             agreement to sell of suit land in favour of
              plaintif!S Oil 15.1.1989 as prices of suit land
              had risen md a mutual compromise had
              arrived between plaintiffs and defendant
              No.I?
E
      3.      Whether plaintiffs are entitled to get the sale No
              deed of suitland 5 Bigha having satiated the
              sum of Rs. Two Jakh Eighteen thousand to
              defendant No. I according to the agreement
              to sell dated 15.01.1989 and to get the
F             vacmt possession of suit land?

      4.      Whether suitland is governn-i:nt land due to Unproved
              which plaintiffs have not got the right to
              sell/transler the same?

G     5.      Whether plaintiffs did not issue notice under Suit        was
              Section CPC to defendant No.2? If yes, then instituted having
              its effect?                                   obtained
                                                            permission from
                                                            the Court.

H
   DHEERAJ DEVELOPERS PRIVATE LIMITED v. DR. OM                               31
            PRAKASH GUPTA [KURIAN, J.]

                                                                              A
   6.       Whether defendants Nos. 3 to 11 are          Proved.
            bonafide purchasers of suitland? If yes,
                                                         Plaintiffs are
            then its effect?
                                                         not enti tied to
                                                         get the relief
                                                         sought.
                                                                              B
   7.       Whether plaintiffs have undervalued the No
            suit land have satiated deficient court
            fee? If yes, then its effect?
   8.       Relief and cost?                             Suit
                                                         dismissed.           c

           . Additional issue :

  9.       Whether an order dated 24.01.1996 passed No
           in the suit No. 4 IA/95 bears the effect of                        D
           res judicata in this case? If yes. then its
           effect?

        All the issues were answered against the plaintiffs.
      6. On re-appraisal of the evidence. the High Cou11 took the view        E
that Exhibit P-1 was genuine and therefore, decreed the suit. It will be
appropriate to incorporate herein the following paragraph as also the
decreetal portion of the impugned judgment passed by the High Court:_-
        "21. Learned counsel for the respondents have pointed during
        argument that agreement Exhibit P-1 is a suspicious document          F
        looking to the other agreement Exhibit D-13 in which rate of suit
        land has been mentioned as 2.50 rupees per square ft. But this
        agreement has been written on plain paper that put on 15.01.1989
        and not signed by consenting parties who have signed the
        agreement Exhibit P-1 on the same day. Therefore, in the absence      G
        of signatures of any witness or consenting party agreement Exhibit
        D-13 cannot be relied, even the agreement Exhibit P-1 which is
        signed not only by the parties but also by the witnesses and family
        members of defendant No. l who have given their consent for the
        agreement. Learned counsel appearing for the respondents have
                                                                              H
32       SUPREME COURT REPORTS                         [2016] 2 S.C.R.



A    also raised certain objections for disbelieving the agreement Exhibit
     P-1 but considering the fact that by Exhibit D-10, defendant No. I
     Harcharan Singh has admitted the execution of agreement Exhibit
     P-1 and even after admission and having knowledge about
     document Exhibit P-1 he has not taken any step against the
     appellants for fabrication of document Exhibit P-1. This fact along
B
     with admission of defendant No. I shows that agreement Exhibit
     P-1 is a genuine document. ft cannot be disbelieved on the ground
     that notice in the paper regarding agreement mentioning different
     date of agreement as the execution and contents of agreement
     Exhibit P-1 has been admitted by defendant No. I in Exhibit D-10,
c    therefore, evidence against such admission before the trial Court
     which contained detailed postmortem of agreement Exhibit P-1
     on several grounds cannot be confirmed looking to the admission
     of defendant No. I in Exhibit D·· l 0 which has not been considered
     by learned trial Court while doing microscope surgery of the
     agreement Exhibit P-1."
D
     "24. Therefore, the judgment passed by the learned trial Court is
     hereby set-aside and the appeal filed by the appellant is hereby
     allowed. The suit filed before the learned trial Court is allowed in
     favour of sole appellant Dr. Om Prakash Gupta as under:-

E       {A) Respondent/defendant No. I is directed to execute the
        sale-deed of5 bighas ofland Survey No. 792/3-4 according to
        agreement dated 15.01.1989 after taking consideration of
        Rs.2, 18,000/-@ Rs.2/- per swuare ft. (according to agreement)
        and hand over the vacant possession of the above land to the
        plaintiff/appellant Dr. Om Prakash Gupta. If the defendant
·F      No. I fails to execute the sale deed within 30 days after deposit
        of payment of consideration amount to him or to deposit in the
        trial Court, the trial Court shall execute the sale deed in favour
        of appellant/plaintiff Dr. O.P. Gupta.
        (B) Since sale deed of above mentioned suit land have been
G       executed by defendant No. I during pendency of the suit and
        purchasers are not bonafide purchasers, therefore, the sale
        deed by law executed by defendant No. I in favour of respondent
        Nos. 2, 3 to 11 are hereby declared null and void.
        (C) The respondent No. I shall pay the cost of appellant and
H       the respondents shall bear their own cost.
   DHEERAJ DEVELOPERS PRIVATE LIMITED v. DR. OM                              33
            PRAKASH GUPTA [KURIAN, J.]

          (D) Counsel fee be calculated according to the rules if pre-       A
          certified."
      7. We have referred to the factual matrix only to a very limited
extent for the reason that the High Court apparently has gone. wrong in
decreeing the suit only on the basis of the finding on genuineness of
Exhibit P-1 document. It should have been borne in mind that suit was        B
for specific performance and obviously there were also several other
aspects of the matter including the aspect of readiness and willingness
which required consideration by the High Court.
      8. In that view of the matter, we allow these appeals, set aside the
impugned judgment and remit the First Appeal No. 174 of 2005 to the          c
High Court.
       9. Needless to say that the appeal(s) are to be heard afresh. The
parties are free to urge all available contentions under law, before the
High Court.
       1O. lt is made clear that we have not expressed any opinion on the    D
merits of the case including the validity or genuineness of documents as
also on the readiness and willingness aspect and it is for the High Court
to consider all those aspects.
       11. No order as to costs.
                                                                             E
~alp~na K. Tripathy                                       Appeals allowed.