Mst. BASWAR SULTAN vs Mst. ADEEBA ALVI
The petitioner sought leave to appeal against a High Court judgment that dismissed her revision petition and upheld an Appellate Court's decision rejecting her suit for specific performance. The petitioner alleged that the respondent entered into an agreement to sell, received partial payments, but failed to execute the sale deed. Initially, the trial court decreed the suit in the petitioner's favor, finding the agreement genuine. However, the Appellate Court reversed this, declaring the agreement bogus and fictitious, a finding affirmed by the High Court. The core legal questions concern whether the Appellate and High Court erred in their findings given the respondent's prior admission of the agreement's execution in her original written statement and court testimony, and whether the respondent could subsequently adopt a contradictory stance in an amended written statement denying the agreement's validity. The Supreme Court granted leave to appeal to examine whether the lower courts were legally justified in disregarding these admissions and whether oral evidence could be considered against the contents of the deed, thereby settling the scope of judicial review regarding evidentiary admissions and pleadings.
- Can a defendant be permitted to adopt a stance in an amended written statement that contradicts an admission made in the original written statement?
- Does an admission of the execution of a deed in a written statement and court testimony preclude a court from later declaring the deed as bogus?
- To what extent can oral evidence be considered against the contents of a written agreement to sell?
ORDER
ABDUR RAHMAN KHAN, J.-- Leave to appeal is sought from the I judgment dated 29.3.2000, delivered by a Division Bench of the High Court, whereby, the revision petition filed by the petitioner was dismissed and the judgment of the Appellate Court dismissing the suit of the petitioner, was maintained.
2. Petitioner/plaintiff brought a suit for specific performance against the defendant/respondent on the allegation that the defendant had entered into an agreement to sell on 10.2.1983 with the plaintiff and. Received Rs.30,000/- as advance. However, the defendant failed to perform her part in the agreement to sell and, therefore, the plaintiff sued her for this purpose. During the proceedings of the said suit the defendant recovered Rs.72,000/- on 18.4.1983, and Rs.55,000/- on 4.9.1983 and as such the total amount received is Rs. 1,57,000/-. The the limit for the execution of sale-deed was five months from 4.9.1983. It is alleged that in the above circumstances the suit was withdrawn. Thereafter the present suit was filed wherein the prayer is that the defendant should be directed to execute the sale-deed in favour of the petitioner on receipt of the balance amount or to return the amount already received.
3. It is to be noted that the defendant filed two written statements and in the one appearing on page 33 of the paper book she had admitted the execution of the agreement to sell, but condemned the petitioner for noncompliance of her part under the agreement. But in the amended written statement she denied the execution and described the agreement to sell as forged and fictitious.
4. The learned trial Court held that the agreement to sell was genuine and that the parties were bound by it and, accordingly, decreed the suit qn payment of the balance amount of Rs.43,000/-.
The Appellate Court came to a different conclusion than the one reached by the trial Court as it.
Held that the agreement to sell was bogus and fictitious. A learned Judge in the High Court by the impugned judgment affirmed the judgment of the Appellate Court.
5. We heard the learned counsel for the petitioner and the one appearing for the caveator and went through the relevant portion of the record.
6. The learned counsel raised the following points in support of this petition:--
(i) The execution of the agreement to sell was admitted in the original written statement and in the statement in Court appearing at Page 58 filed by the defendant/respondent wherein she stated "I have read the agreement deed Ex.PW-1/1, PW-2/1 and PW-3/1 which correctly bears my signature".
And again "I (Hamid Ali Mirza, J.) have seen the signature of my father and brother as marginal witnesses on the original deed Ex.PW-1/1, PW-2/1 and PW-3/1, which are the signatures of my father and brother". It was therefore, submitted that the appellate and revisional Courts had drawn incorrect inference from proved facts.
(ii) Whether in view of the above admission of the defendant in the written statement and in her statement in Court the learned Appellate Court and the learned High Court were still legally justified to hold that the gift deed had not been proved because of the non-entry of the number of identity Cards of the executant and the marginal witnesses of the gift deed?
(iii) Whether the respondent/defendant could be allowed to plead a case different from the one as stated in the original written statement?
(iv) Whether any oral evidence could be led or could be considered as against the contents of the deed?
We grant leave to consider, in detail the above submissions.