Case Note & Summary
The appellant, original defendant, challenged the judgment and decree of the 2nd Joint Civil Judge, Senior Division, Aurangabad in Special Civil Suit No.285/2002 dated 24.04.2007, which decreed specific performance of contract in favor of the respondent-plaintiff. The plaintiff claimed that the defendant, owner of plot no.20, CTS No.15844/1/20 at Medical College Hospital Class III Employees' Cooperative Housing Society, Shahnoorwadi, Aurangabad, entered into an agreement for sale on 02.02.1997 for consideration of Rs.2,40,000. The plaintiff paid earnest money of Rs.30,000 at the time of execution and agreed to pay the balance at the time of sale deed. The plaintiff alleged that despite requests, the defendant avoided executing the sale deed, leading to a notice on 22.02.2002 and a public notice. The defendant denied the agreement and contended that the plaintiff failed to prove execution. The trial court decreed the suit. In appeal, the High Court framed the issue of whether the plaintiff proved the agreement. The court noted that the plaintiff did not produce the original agreement, only a photocopy, and did not examine any attesting witness. The court held that the plaintiff failed to discharge the burden of proof under Section 68 of the Indian Evidence Act, 1872, as the document required attestation and no attesting witness was examined. The court also noted that the plaintiff did not lay foundation for leading secondary evidence. Consequently, the appeal was allowed, the trial court's decree was set aside, and the suit was dismissed.
Headnote
A) Specific Performance - Execution of Agreement - Burden of Proof - Plaintiff failed to prove execution of agreement for sale as original document not produced and attesting witnesses not examined - Mere production of photocopy insufficient to discharge burden - Held that plaintiff must prove execution of document in accordance with law (Paras 4-6). B) Evidence Act - Secondary Evidence - Photocopy of Agreement - Section 63 of Indian Evidence Act, 1872 - Photocopy is secondary evidence but its admissibility depends on proof of existence and execution of original - In absence of original, plaintiff must lay foundation for leading secondary evidence - Held that mere filing of photocopy without proving original's execution is not sufficient (Paras 4-6). C) Evidence Act - Attestation - Section 68 of Indian Evidence Act, 1872 - Agreement for sale requires attestation - Plaintiff must examine at least one attesting witness to prove execution - Failure to do so renders document not proved - Held that non-examination of attesting witness fatal to plaintiff's case (Paras 5-6).
Issue of Consideration
Whether the plaintiff has proved the execution of the agreement for sale and is entitled to a decree of specific performance?
Final Decision
Appeal allowed. Judgment and decree dated 24.04.2007 passed by 2nd Joint Civil Judge, Senior Division, Aurangabad in Special Civil Suit No.285/2002 is set aside. The suit stands dismissed. No order as to costs.
Law Points
- Specific performance
- burden of proof
- execution of document
- attestation
- photocopy evidence
- Section 63 of Indian Evidence Act
- 1872
- Section 68 of Indian Evidence Act
