Having conscious of the fact that the plaintiff might not succeed in
getting the relief of specific performance of such agreement to sell as the same was unregistered, the plaintiff filed a suit simplicitor for permanent injunction only. It may be true that in a given case, an unregistered document can be used and/or considered for collateral purpose. However, at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case the relief for specific performance.
Therefore, the plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession which was allowed by the learned trial Court. The plaintiff cleverly prayed for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered document/agreement to sell, no decree for specific performance could have been passed. The
plaintiff cannot get the relief by clever drafting.
7. In view of the above and for the reasons stated above, both, the
learned first appellate Court and the High Court have committed a grave error in passing a decree for permanent injunction in favour of the plaintiff as against the defendant and dismissing the counter-claim filed by the original defendant. {Para 6}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6733 OF 2022
Balram Singh Vs Kelo Devi
Author: M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 10.12.2019 passed by the High Court of Judicature at
Allahabad in Second Appeal No. 330/2001, by which the High Court has
dismissed the second appeal and has confirmed the judgment and
decree passed by the first appellate Court reversing the judgment and
decree of dismissal of suit passed by the learned trial Court, the original
defendant has preferred the present appeal.
2. The facts leading to the present appeal in a nutshell are as under:
That the respondent herein – original plaintiff (hereinafter referred
to as the ‘original plaintiff’) instituted Original Suit No. 696 of 1997 before
the learned trial Court for permanent injunction only. The said suit was filed on the basis of an unregistered agreement to sell dated 23.03.1996.
The original plaintiff sought permanent injunction restraining the
defendant from disturbing her possession in the suit property.
2.1 In the said suit, the appellant herein – original defendant filed a
counter-claim seeking the decree of possession.
2.2 The learned trial Court dismissed the suit filed by the original
plaintiff and refused to grant permanent injunction and allowed the
counter-claim of the defendant on the ground that original plaintiff could
not prove the agreement to sell dated 23.03.1996 and that the original
plaintiff is in unauthorised possession of the suit property since
08.07.1997. The learned trial Court also held that the original plaintiff
could not prove the agreement to sell for a sale consideration of Rs.
14,000/- and also could not prove that she was put in possession of the
suit property on 23.03.1996.
2.3 Feeling aggrieved and dissatisfied with the judgment and decree
passed by the learned trial Court dismissing the suit of the original
plaintiff and allowing the counter-claim of the defendant, the original
plaintiff preferred an appeal before the first appellate Court. The learned
first appellate Court allowed the said appeal and set aside the judgment
and decree passed by the learned trial Court and consequently decreed the suit for permanent injunction against the defendant. The learned first
appellate Court also dismissed the counter-claim of the defendant.
2.4 The judgment and decree passed by the first appellate Court has
been confirmed by the High Court, by the impugned judgment and order
passed in Second Appeal No. 330 of 2001.
2.5 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court in dismissing the second appeal and
confirming the judgment and decree passed by the learned first
appellate Court, decreeing the suit for permanent injunction and
dismissing the counter-claim, the original defendant has preferred the
present appeal.
3. Learned counsel appearing on behalf of the appellant – original
defendant has vehemently submitted that the original plaintiff filed a suit
for permanent injunction solely on the basis of the agreement to sell
dated 23.03.1996, which, as such, was unregistered.
3.1 It is submitted that such an unregistered agreement to sell is not
admissible in evidence. It is submitted that therefore both, the learned
first appellate Court as well as the High Court have committed a grave
error in passing a decree for permanent injunction and dismissing the
counter-claim.
3.2 It is further submitted that both, the learned first appellate Court as
well as the High Court have not properly appreciated the fact that the
suit filed by the original plaintiff was only for permanent injunction and
she by adopting a clever drafting did not seek the relief for specific
performance of agreement to sell as she was well aware that she would
not succeed in the suit for specific performance on the basis of an
unregistered agreement to sell. It is submitted that when the original
plaintiff cannot get the substantive relief of specific performance of the
unregistered agreement to sell dated 23.03.1996, she would not be
entitled to a decree for permanent injunction on the basis of such an
unregistered document.
3.3 Making the above submissions, it is prayed to allow the present
appeal.
4. The present appeal is vehemently opposed by the learned counsel
appearing on behalf of the respondent – original plaintiff.
4.1 It is vehemently submitted that as per the settled position of law,
an unregistered document can be used for collateral purpose and
therefore both, the first appellate Court as well as the High Court have
rightly passed a decree for permanent injunction restraining the
defendant from interfering with her possession, considering the
agreement to sell dated 23.03.1996 for collateral purpose of grant of
permanent injunction.
4.2 Making the above submissions, it is prayed to dismiss the present
appeal.
5. We have heard the learned counsel for the respective parties at
length.
At the outset, it is required to be noted that the original plaintiff
instituted a suit praying for a decree of permanent injunction only, which was claimed on the basis of the agreement to sell dated 23.03.1996. However, it is required to be noted that the agreement to sell dated 23.03.1996 was an unregistered document/agreement to sell on ten rupees stamp paper. Therefore, as such, such an unregistered document/agreement to sell shall not be admissible in evidence.
6. Having conscious of the fact that the plaintiff might not succeed in
getting the relief of specific performance of such agreement to sell as the same was unregistered, the plaintiff filed a suit simplicitor for permanent injunction only. It may be true that in a given case, an unregistered document can be used and/or considered for collateral purpose. However, at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case the relief for specific performance.
Therefore, the plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession which was allowed by the learned trial Court. The plaintiff cleverly prayed for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered document/agreement to sell, no decree for specific performance could have been passed. The
plaintiff cannot get the relief by clever drafting.
7. In view of the above and for the reasons stated above, both, the
learned first appellate Court and the High Court have committed a grave
error in passing a decree for permanent injunction in favour of the
plaintiff as against the defendant and dismissing the counter-claim filed
by the original defendant. The impugned judgment and order passed by
the High Court, confirming the judgment and decree passed by the first
appellate Court and the judgment and decree passed by the first
appellate Court decreeing the suit for permanent injunction and
dismissing the counter-claim of the defendant are unsustainable and the
same deserve to be quashed and set aside and the judgment and
decree passed by the learned trial Court dismissing the suit filed by the
plaintiff for permanent injunction and allowing the counter-claim of the
defendant deserves to be restored.
8. Accordingly, the present appeal is allowed. The impugned
judgment and order dated 10.12.2019 passed by the High Court
dismissing Second Appeal No. 330/2001, confirming the judgment and
decree passed by the first appellate Court and the judgment and decree
dated 29.01.2001 passed by the first appellate Court decreeing the suit
for permanent injunction in favour of the original plaintiff and dismissing
the counter-claim of the defendant are hereby quashed and set aside.
Consequently, the suit instituted by the original plaintiff for permanent
injunction on the basis of an unregistered agreement to sell is hereby
dismissed and the counter-claim filed by the original defendant is hereby
allowed. The judgment and decree passed by the learned trial Court
dismissing the suit and allowing the counter-claim is hereby restored.
There shall be no order as to costs.
……………………………….J.
[M.R. SHAH]
NEW DELHI; ……………………………….J.
SEPTEMBER 23, 2022. [KRISHNA MURARI]
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