Self-Serving Evidence Can't Discharge Onus Of Proof Placed On Plaintiff To Prove Existence Of Valid Agreement In Suit For Specific Performance: Supreme Court

The Supreme Court has held that the onus of proof placed on Plaintiff to prove an existence of a valid agreement in Suit for Specific Performance cannot be discharged with a self- serving evidence.

The Court was considering an Appeal against decree and the judgment of the High Court whereby findings of the Trial Court and Appellate Court concluding that agreement to sell was not genuine were reversed.

The division bench of Justice Ahsanuddin Amanullah and Justice SVN Bhatti observed, "....It is further noted that the respondent claims to have taken possession under Exhibit P1 and re-transferred possession to the appellant under a rent deed. In a circumstance such as the present, it is all the more a good requirement in law that the movement of possession from appellant to respondent has gone in the first instance, and secondly, re-transferred to the appellant by the respondent because the appellant was and is in possession of the Suit Premises. There is no evidence adduced by the first respondent. The consensus ad idem resulting in bringing into existence Exhibit P1 is a material circumstance, and though the issue calls upon the respondent to place evidence on this behalf, there is no evidence to support the case of the respondents. The respondent failed to place evidence either in support of the receipt of rent of Rs. 700 per month from the appellant or to demand execution of the registered sale deed before 20.10.2000. The failure to explain this crucial aspect certainly should have impressed upon the High Court in appreciating the existence of an agreement of sale between the parties. On the one hand, the respondents accepted the onus to discharge the existence of a valid agreement of sale, while on the other, the evidence the respondents provided is self-serving...."

The Appellant was represented by Advocate-On-Record Abhimanyu Tewari while the Respondent was represented by Advocate-On-Record Jatinder Kumar Bhatia.

Facts of the Case

The Respondent Nos. 1 and 2 filed Suit for Specific Performance of the agreement of sale said to have been executed by the Appellant. The Respondents since deceased, are represented through their legal representatives. The Suit Agreement is for a consideration of ₹70,000/-, and it was recited that the Appellant has received ₹55,000/- from the Respondents as part consideration and put them in possession of the house. The Respondent, to explain the continuous possession of the Appellant in the Suit Premises, referred to a contemporaneous rent arrangement under which the Appellant is continuing as a tenant of the Suit Premises at a monthly rent of ₹700/-. The Respondent, on October 20, 2000, allegedly appeared before the sub-registrar’s office for obtaining a registered sale deed from the Appellant. The appellant did not turn up, and it was stated that the registration of the Suit Property pursuant to the Suit Agreement could not be completed. The Respondent then issued a legal notice, calling upon the Appellant to receive the balance sale consideration and execute a registered sale deed. Later, the instant suit was filed for specific performance and possession of the Suit Agreement and the Suit Premises.

The Appellant alleged that the Respondents committed fraud and misrepresentation. It was his case that he borrowed a sum of ₹50,000/- from the First Respondent, and the First Respondent obtained signatures on blank stamp papers and misused them and there was no agreement between the parties to sell or purchase the Suit Premises. It was thus averred that the Suit Agreement has been fabricated to file a Suit for Specific Performance.

The Trial Court noted that the Plaintiff failed to prove that the Defendant executed the agreement of sale and the First Appellate Court observed that the agreement to sell cannot be regarded as a genuine document and does not constitute proof of an agreement to sell.

The High Court found that the Defendant had admitted his signatures at five places on the two-sheet agreement and also admitted writing in his handwriting on the agreement regarding the receipt of ₹55,000/- as earnest money. It also found that the Appellate Court misread the evidence by treating certain writings of attesting witnesses as affidavits, even though these witnesses were never examined in the witness box.

Counsel for the Appellant submitted that misreading and misappreciation of evidence are not applied in an abstract way, and within the fold of such criteria, the re-appreciation of evidence leading to an opinion of the High Court is impermissible. He argued that assuming the Appellant has set up a blank paper theory, then there is no prohibition in law to establish that the blank papers have been misused and that there was no agreement of sale, as projected by the Plaintiff. The Counsel contended that the Trial Court has rightly placed the burden on the Plaintiff, and except for the self-serving evidence of the First Respondent, there is no other evidence on the existence of an agreement, execution of a contemporaneous rent deed, payment of rent, and demand for specific performance before the alleged agreed due date.

On the other hand, Counsel for the Respondent contended that since the signatures on the Suit Agreement and rent deed are not disputed by the Appellant, the burden to prove the purpose for which the signatures are relied upon is on the Appellant. It was contended that the sketchy evidence adduced by the Appellant cannot be said to discharge the burden fastened on a party who admits the signatures on a document and pleads blank paper theory.

Reasoning By Court

The Court at the outset referred to Supreme Court's decision in Anil Rishi v. Gurbakshi Singh, wherein it was held that there is a distinction between burden of proof and onus of proof, and that onus of proof has greater force when the issue is which party is to begin forwarding evidence in support of a proposition.

"In matters such as the present, it is the onus of proof that is applied in determining whether the proof as needed to enforce an agreement is made out by the respondents or not", the Court noted.

It stated that the Respondents did not examine the witnesses to the alleged Suit Agreement or the rent deed and the evidence of the Respondent remains self-serving evidence and cannot be wholly relied upon as evidencing the execution the Suit Agreement.

The Court pointed out that the crucial aspect that was missed in coming to a conclusion of misreading or misappreciation of evidence in the impugned judgement is that no steps have been taken by respondents to at least cross-examine the affidavit.

The Appeal was accordingly allowed.

Cause Title: Harish Kumar vs. Amar Nath & Another

Appearances:

Appellant- Advocate-On-Record Abhimanyu Tewari, Advocate Siddhant Saroha, Advocate Sidhant Awasthy, Advocate Aniket Kumar Parcha

Respondent- Advocate-On-Record Jatinder Kumar Bhatia

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