M. Karpagavinayagam, J.
1. L. S. Sadagopan, the appellant herein, is the defendant in the suit in O. S. No. 2549 of 1981 on the file of the VI Additional Judge, City Civil Court, Madras filed by K. S. Sabarinathan, the respondent herein, for specific performance of the agreement to sell dated 14-5-1973. Since the suit was decreed in favour of the respondent/ plaintiff, the same is challenged in this appeal by the appellant/defendant.
2. The case of the respondent/plaintiff is as follows :--
"(a) The defendant/appellant was allotted with Plot No. 477 in K. K. Nagar by the Tamil Nadu Housing Board on 1-4-1969. On his request, the respondent/plaintiff advanced the full amount and paid the same to the Housing Board. Thereafter, the defendant mortgaged the plot to the Madras City Cooperative House Mortgage Society Limited for Rs. 25,000/- for putting up a construction on the plot.
(b) On 14-5-1973, the defendant entered into an agreement with the plaintiff by which the defendant agreed to transfer the plot to the plaintiff, as the plaintiff already paid the full amount to the Housing Board and also agreed to discharge the above said mortgage. The plaintiff also agreed to pay further installments to the Housing Board.
(c) In terms of the said agreement, the defendant delivered possession of the plot to the plaintiff. Accordingly, the plaintiff discharged the said mortgage and paid the installments due to the Housing Board. Though the plaintiff performed his part of the contract, the defendant was not willing to transfer the plot and since he was evading to execute the sale deed under some protest or other, the plaintiff filed the suit seeking for specific performance of the agreement."
3. The case of the appellant/defendant is as follows :--
"Originally, the plot was allotted to the wife of the defendant and she paid 25 per cent of the cost of the plot on 9-5-1968 to the Housing Board. The defendant was pay-ing the balance installments for the lot. The , plaintiff did not advance any money for the plot. The defendant discharged the mortgage in favour of the Madras City Co-operative House Mortgage Society. He did not enter into any agreement on 14-5-1973 with the plaintiff. The defendant put up construction in the plot with his own money. Since the construction work was entrusted to the plaintiff, he was permitted to occupy the portion of the plot. The plaintiff did not pay any money for the said plot. Therefore, the suit is liable to be dismissed."
4. On the basis of the above pleadings, the following issues were framed in the trial Court.
(1) Whether the agreement dated 14-5-1973 is true, valid and executed by the defendant?
(2) Whether the payment of Rupees 51,000/- to the defendant, in pursuance of the agreement alleged by the plaintiff, is true?
(3) Whether the plaintiff has performed his part of the agreement?
(4) Whether the plaintiff has been ready and willing to perform his part of the contract?
(5) Whether the plaintiff is entitled to the relief of specific performance of the suit agreement?
5. During the course of trial, on behalf of the plaintiff, P.Ws. 1 and 2 were examined through whom Exs. A-1 to A-75 were marked. On the side of the defendant, he examined himself as D.W. 1 and Exs. B-1 to B-17 were marked.
6. On consideration of the entire materials, the trial Court decreed the suit by judgment dated 23-7-1986 holding that the plaintiff would be entitled to specific performance and directed the defendant to execute the sale-deed in favour of the plaintiff in respect of the suit plot in pursuance of the agreement dated 14-5-1973. Challenging the said judgment and decree, the defendant has filed this appeal before this Court.
7. During the pendency of the appeal the appellant/defendant died. Therefore, his wife Jayalakshmi filed a petition in C.M.P. No. 3791 of 1994 and by order dated 9-3-1995 of this Court, she was brought on record as the legal representative of the deceased appellant.
8. Before the appeal was taken up for final disposal, one Ashok Kumar, a third party, filed a petition in C.M.P. No. 19225 of 1999 requesting this Court to implead him as second respondent in the above appeal as the suit plot was brought to sale in auction by the Repatriates Co-operative Finance and Development Bank Ltd in which he participated and became the highest bidder and subsequently, he deposited a portion of the amount in the bank and when it was challenged in the writ petition by the respondent/plaintiff, the same was dismissed by this Court holding that the auction and purchase of the property by him is the subject matter of appeal and therefore, he may be permitted to be impleaded as a party to the appeal as second respondent. So, both the appeal and the Civil Miscellaneous Petition for impleading have been heard together.
9. Before considering the impleading petition, let us now refer to the arguments advanced by the counsel for the appellant/ defendant and the respondent/plaintiff in the present appeal.
10. The gist of the submissions made by the learned counsel for the appellant/defendant are as follows :--
"The agreement to sell between the plaintiff and the defendant was not proved. Consequently, the secondary evidence ought not to have been permitted, particularly when the execution of the said agreement was denied by the appellant/defendant. Even on the date of agreement, the entire sale price of the said plot was not paid and as such, the defendant could not enter into an agreement in respect of the said land. The defendant was employed in a fairly good position and was an Income-tax assessee. Therefore, there was no necessity for him to enter into an agreement with the plaintiff. Under Section 62 of the Indian Evidence Act, the original document shall be produced and the photostat copy cannot be admissible, as it would not fall under the category of secondary evidence, as contemplated under Sections 65 and 66 of the Indian Evidence Act. The trial Court has overlooked the various material factors and did not appreciate the evidence in the proper perspective. Hence, the decree passed in favour of the respondent/plaintiff is liable to be set aside."
11. In reply to the said submissions, the learned counsel for the respondent/plaintiff would make the following contention :--
"Ex. A-2 is the photostat copy of the agreement. This is admissible under Section 63(2) of the Indian Evidence Act when the original is lost and the Court can permit the document to be admitted under Section 65(c) of the Indian Evidence Act. Though the signatures in Ex. A-2 were denied by the defendant, no material had been placed by the defendant to establish that the signatures were not put by the defendant and his family members. On the other hand, the plaintiff produced several documents to show that on the basis of Ex. A-2 agreement, the plaintiff took possession of the suit plot and constructed a pacca building with his own money, after complying with the terms of the agreement. The trial Court in its detailed judgment would give elaborate reasonings for passing a decree in favour of the plaintiff. Therefore, the appeal is liable to be dismissed."
12. Both the counsel for the parties would cite number of authorities, which we shall consider later.
13. According to the respondent/plaintiff, the said plot was handed over to the plaintiff by the defendant on the basis of Ex. A-2 agreement dated 14-5-1973 by which the defendant agreed to sell and transfer the property to the plaintiff on some terms and conditions and since the plaintiff performed his part of the contract by complying with those terms, the defendant is bound to execute the sale deed in favour of the plaintiff.
14. Though the defendant admitted that the possession of the suit plot and the building constructed therein is with the plaintiff, the document Ex. A-2 has been challenged by him on the following two grounds :--
(1) Ex, A-2 is the photostat copy of the agreement executed by the defendant. Since the original agreement has not been placed before the Court and the plaintiff has not made out any case by letting in any secondary evidence, Ex. A-2 photostat copy of the agreement cannot be received and admitted as secondary evidence as contemplated under Section 63 of the Evidence Act.
(2) Ex. A-2 has not been signed by the defendant or his family members. Therefore, the said agreement is a forged one.
15. Let us now take the first aspect regarding the admissibility of Ex. A-2. This is the photostat copy of the agreement dated 14-5-1973 entered into between the plaintiff and the defendant. The said objection regarding admissibility of Ex. A-2 requires examination of the scope of Sections 62 to 65 of the Indian Evidence Act.
16. According to Section 62 of the Indian Evidence Act, primary evidence means the document produced for the inspection of the Court.
17. Section 63 of the Indian Evidence Act provides secondary evidence means and includes -
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical process which in themselves ensure the accuracy of the copy, and copies compared with such copies:
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a documents given by some person who has himself seen it.
18. Section 64 of the Indian Evidence Act embodies the rule that the documents must be proved by primary evidence, (i.e.) by production of original documents. Section 65 of the Indian Evidence Act provides exception to the aforesaid rule which envisages the various classes of cases in which the secondary evidence relating to the documents may be given.
19. The general principle is that if the original document exists and is available, it must be produced because it is the best evidence. However, if the original is lost destroyed, detained by the opponent, or third person who does not produce it before the Court or physically irrecoverable, the secondary evidence is admissible.
20. Section 65 of the Indian Evidence Act reads as under -
"Secondary evidence may be given of the existence, condition or contents of a document in the following cases :--
(a) when the original is shown or appears to be in the possession or power -
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or
of any person legally bound to produce it,
and when, after the notice mentioned in Section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it to reasonable time:
(d) when the original is of such a nature as not be easily movable;
(e) when the original is a public document within the meaning of Section 74;
(f) when the original is a document of which a certified copy is permitted by this Act or by any other law in force in India, to be given in evidence;
(g) when the original consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection."
21. According to the counsel for the respondent/plaintiff. Ex. A-2, the photostat copy of the agreement, would fall under Section 63(2) as well as Section 65(c) of the Indian Evidence Act.
22. According to Section 63(2) of the Act, copies made from the original by mechanical process which in themselves ensure the accuracy of the copy is secondary evidence.
23. According to Section 65(c) of the Act if the original document has been lost or destroyed, a copy of the said document is admissible as secondary evidence and therefore, the contents of the said document is admissible.
24. The reading of the proviso to Section 65 of the Indian Evidence Act would make it clear that Section 65 of the Act has been enacted in order to safeguard the interest of the person who is unable to produce either the original or the secondary evidence of the types mentioned in Section 63 of the Act.
25. Though Section 65(b) of the Act would provide for the admissibility of the certified copy of the original document, it is well settled that Clauses (a) and (c) are independent of Clause (f) and even an ordinary copy would be admissible.
26. That apart, as per Section 63(5) of the Indian Evidence Act, an oral account of the contents of a document given by some person who has himself seen it also would be considered as an evidence to be admitted as secondary evidence.
27. Illustration (a) of Section 63 of the Indian Evidence Act would provide that a photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
28. The above Sections have been interpreted in detail in (1) Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri, ; (2) Ratan Sharma v. Ambesedar Drycleaners, ; (3) Harijiwan Sahu v. Jairam Sahu. ; (4) Subarna Barik v. State.
; (5) Arunkumar v. Ramanlal. and
Sanatan Mohanty v. Baidhar Rout, .
29. In the light of the above legal situation, the document Ex, A-2 has to be scrutinised.
30. According to the plaintiff (P.W. 1), the original document was retained by the defendant and the copy of the document in which the defendant and his members of family signed was given to him and since the same was lost and that could not be traced, the photostat copy of the agreement dated 14-5-1973 has been produced. On going through the evidence of P.W. 1, it is clear that this document could be admitted as secondary evidence as provided under Sections 63(2) and 65(c) of the Indian Evidence Act.
31. The second objection raised by the counsel for the appellant/defendant is that earlier the defendant or the members of his family was never a party to the agreement and did not sign the said document and as such, it is a forged one.
32. A perusal of Ex. A-2 agreement would show that it would contain the signature of the defendant, his wife, son and daughter. P.W. 1 would speak about the execution of the agreement in detail. According to him, he knew the defendant and his family members from 1968 onwards. In April, 1972, the defendant came to him with the notice demanding arrears of installments sent by the Housing Board and he represented that about Rs. 6,000/- had to be paid to the Housing Board and he was not in a position to pay the same immediately and he requested the plaintiff to purchase the suit plot. The defendant further informed P.W. 1 that already Rs. 1,900/- was deposited into the Housing Board. Therefore, he requested the plaintiff to give some profit for the plot. Ultimately, he agreed to sell the plot for Rs. 12,000/-. As decided by the defendant, the plaintiff paid Rs. 12,000/- to the defendant in cash. Out of the said amount, Rupees 6,000/- was paid to the Housing Board by the defendant.
33. In pursuance of the said agreement, the possession of the plot was also delivered to the plaintiff. When the plaintiff began to put up construction in the said plot the defendant came again and wanted the plaintiff to give Rs. 25,000/- urgently. Subsequently, the defendant came and requested that he would be permitted to raise a loan of Rs. 25,000/- from the Madras City Co-operative House Mortgage Society on the security of the said plot. Accordingly, he was permitted. Then, the defendant obtained a loan of Rs. 25,000/- from the Madras City Co-operative House Mortgage Society on executing the mortgage deed. The copy of the said mortgage deed is Ex. A-1.
34. Thereafter, Ex. A-2 agreement was executed on 14-5-1973 indicating various terms and conditions of the agreement which are as follows :--
"Whereas the plot of land set out in the schedule hereunder has been allotted to the First party by the Tamil Nadu Housing Board under the Lease-cum-Sale Agreement dated 2nd March. 1970.
Whereas the full tentative cost and interest of the plot has been advanced by the Second Party to the First Party and paid over to the said Housing Board;
Whereas the First Party has mortgaged the said plot to the Madras City Co-operative House Mortgage Society Ltd.. Madras-7, for the sum of Rs. 25,000/- for putting up the construction on the said plot for the said sum;
Whereas in consideration of the Second Party having paid the full cost of the said plot and having agreed to discharge the mortgage loan referred to above, the First Party has agreed to transfer the same, and the building that is being constructed thereon with the monies borrowed from the Madras City Co-operative House Mortgage Society Ltd., Madras-7, to the Second Party on the terms and conditions set out hereunder.
(1) The First Party shall transfer the said plot described in the schedule hereunder and the building constructed thereon to the Second Party within one month after the Tamil Nadu Housing Board Transfers the ownership of the said plot to the First Party on the completion of five years from the date of allotment, or completion of the building on the plot whichever is later, subject to the mortgage aforesaid in favour of the Madras City Co-operative House Mortgage Society Ltd.
(2) The stamps and registration charges for the transfer deed shall be borne by the Second Party.
(3) The Second Party shall pay the installments payable to the Madras City Cooperative House Mortgage Society Ltd., Madras-7 towards the mortgage dated the 16th March, 1973 referred to above and shall himself discharge the said mortgage.
(4) The First Party shall authorise the Madras City Co-operative House Mortgage Society Ltd. to receive the mortgage monies from the Second Party and to hand over to the Second Party all the documents relating to the said plot and the building thereon, on discharge of the said mortgage and also hereby authorise the Second Party to receive the said documents.
(5) The First Party shall also notify the Madras City Co-operative House Mortgage Society Ltd., about the Transfer of the Plot and the building in favour of the second party as and when it takes place.
(6) The Second Party shall be in possession of the plot No. 477 and the building thereon, with immediate effect.
(7) The First Party shall execute and register the transfer deed in favour of the Second party for himself and as the father and guardian of his sons."
35. The above terms would make it clear that the defendant agreed to sell the suit plot to the plaintiff and the plaintiff undertook to discharge the mortgage loan due to the Madras City Co-operative House Mortgage Society. P.W. 1 adduced evidence, both oral and documentary to show that as per the terms, the mortgage was discharged by the plaintiff on behalf of the defendant. In Ex. A-2 agreement, it is stated that the full tentative cost and interest of the plot had been advanced by the plaintiff and the same was handed over to the Housing Board.
36. It is an admitted fact that the plot was originally allotted to the wife of the defendant and the same was later transferred in the name of the defendant in the year 1969. As per Ex. P-8, a sum of Rs. 2,064/-was deposited in the Housing Board on 9-5-1968 by the wife of the defendant. Subsequently, the installments were not paid to the Housing Board regularly. Ultimately, a sum of Rs. 5,820/- was paid on 10-4-1972 as indicated in Ex. A-66.
37. According to the plaintiff, he gave Rs. 12,000/- to the defendant from and out of which the said amount of Rs. 5,820/- was paid by the defendant to the Housing Board. Though it was denied by the defendant by stating that he paid his own money, nothing was produced before the Court by the defendant to indicate that he was having sources during the relevant time to pay the said money.
38. On the contrary, the statement of the plaintiff that the said amount was paid out of Rs. 12,000/- given by him is strengthened by the production of Ex. A-66 original challan by the plaintiff before the Court. Admittedly, subsequent installments were not paid regularly after 1974. The next payment was made only on 27-3-1979. According to the plaintiff, he paid the said amount and obtained receipt Ex. A-65. The plaintiff was able to produce Ex. A-65 before the Court. Though the receipt shows that it was issued in the name of the defendant, the original had been produced by the plaintiff before the Court.
39. These things would show that subsequent to the payment of Rs. 12,000/-, the plot was entrusted to the plaintiff who constructed building therein and discharged the mortgage in respect of the said plot and also paid the installments in respect of the plot to the Housing Board and obtained the receipt which was issued in the name of the defendant.
40. As indicated above. Ex. A-1 Mortgage Deed executed by the defendant in favour of the Madras City Co-operative House Mortgage Society was dated 16-3-1973 and the same had been referred to in Ex. A-2 agreement dated 14-5-1973. Towards discharge of the said mortgage, the plaintiff had given a demand draft to the said House Mortgage Society. Ex. A-35 is the photostat copy of the draft dated 18-11-1977. As the mortgage was in the name of the defendant, the amount was paid in the name of the defendant. After discharge, all the prior documents of the suit plot were given to the plaintiff who produced the same before the Court, namely, Exs. A-66 to A-74. These things also would show that Ex. A-2 agreement was entered into between the plaintiff and the defendant and the terms of the agreement had been complied with by the plaintiff.
41. According to the defendant (D.W. 1), the signatures found in Ex. A-2 were not put by him or by his family members. But, in the cross-examination, he stated that he could not say whether the signatures in Ex. A-2 were put-by him or his family members or not. D.W. 1 did not take any step to establish his stand through the hand writing expert that the signatures contained in Ex. A-2 were not put by them.
42. Though D. W. 1, who was stated to have been affected with cataract, would admit that his wife would be able to identify his signature and the signature of other members of the family in Ex. A-2, he did not choose to examine his wife to speak about the signature. The defendant further admit in cross-examination that in September. 1985, he saw Ex. A-2 agreement in the Court and at that time, his signature and the signature of his wife, son and daughter were found in the said document.
43. Apart from these materials, there are other significant features available supporting the case of the plaintiff. According to P.W. 1, he put up construction in the plot at his own expenses. The defendant would also state that he bore the entire expenses for the construction. But, the statement of the defendant was not at all supported by any material.
44. On the other hand, it is seen from Ex. A-63 that the plaintiff mortgaged the said building constructed on the suit plot to the Syndicate Bank and borrowed Rupees 2,00,000/- and the defendant had also signed as a surety in the said document.
45. That part, the trial Court itself compared the admitted signature of the defendant in various documents with the signature in Ex. A-2 agreement and came to the conclusion that the defendant only put the signature in Ex. A-2. Under those circumstances, it cannot be contended that Ex. A-2 is not a genuine document.
46. That part, lot of materials placed before the Court by the plaintiff would show that right from the beginning, the plaintiff has been paying the taxes for the suit plot. Originally, the property was assessed to tax by Virughampakkam Panchayat Board and later, it was assessed by the Corporation of Madras. Upto a particular date, the assessment was in the name of the defendant and later, the assessment was made in the name of the plaintiff. From then onwards, the assessment was continuously in the name of the plaintiff. He produced many receipts to prove the same.
47. Besides this, the electricity connection for the house was in the name of the plaintiff. He has been paying the electricity charges for the suit plot and all the original records relating to the suit plot were produced by him before the Court. The custody of all the relevant and material original records with the plaintiff would support the case of the respondent/plaintiff.
48. Though the defendant (D.W. 1) would state that the plaintiff removed all the documents from his house and the same had not been established by adducing any acceptable evidence. On the other hand, D. W. 1, while he was further cross-examined, would state that his son removed those documents and handed over the same to the plaintiff. In another place, D.W. I would state that he handed over those documents to the plaintiff for safe custody and the same had been misused.
49. These inconsistent stands taken by the defendant would clearly prove that the defendant has not come with clean hands. It is true that the plaintiff has come to the Court seeking for the relief of specific performance and he should establish that he has come with clean hands in order to seek the relief of equitable remedy. But, it should not be forgotten that the same would apply to the defendant also.
50. In this case, as discussed above, the appellant/defendant has not placed any material to prove his case nor shown his consistency with reference to the stand taken by him. Therefore, the reasonings given by the trial Court in granting the decree in favour of the respondent/plaintiff are justified and as such, the findings of the trial Court on facts on the basis of the materials available on record do not warrant any interference.
51. Let us now consider C.M.P. No. 19225 of 1999 filed by the petitioner Ashok Kumar, a third party, seeking to implead him as second respondent in the appeal.
52. According to the petitioner, the appellant/defendant and his wife executed a mortgage deed on 29-6-1983 in favour of the Repatriates Co-operative Finance and Development Bank Ltd. since the appellant/ defendant failed to pay the amount, the said Co-operative Bank constrained to bring the property for sale by auctioning in public. In the auction held on 3-5-1995, the petitioner participated and he was declared as the highest bidder and he was asked to deposit Rs. 2,40,000/- and accordingly, he complied with the same. Then only he came to know that the respondent/plaintiff filed a writ petition in W.P. No. 6396 of 1995 and obtained stay for confirmation of sale. Thereafter, the petitioner filed W.M.P. No. 23412 of 1998 to implead him as a party in the said writ petition and the same was allowed.
53. When the writ petition came up for final hearing, this Court by order dated 20-12-1998 dismissed the writ petition holding that the argument that Section 52 of the Transfer of Property Act debars the Repatriates Co-operative Finance and Development Bank from enforcing the mortgage is without any merit and the safeguard which has been made in the impugned order itself would be subject to the decision of this Court in the present appeal.
54. In view of the above observation, the petitioner/third party has filed the present petition requesting this Court to implead him as second respondent in this Appeal Suit. Both the respondent/plaintiff and the appellant/defendant filed counter objecting to the same.
55. According to the counter filed by the second appellant being the wife of the deceased first appellant/ defendant, the petitioner/auction purchaser is no way concerned or interested in the appeal and as such, he has no say or right as necessary or proper party in the appeal.
56. According to the respondent/plaintiff, the auction conducted by the bank and the alleged bid of the petitioner are not binding upon him. As per the order passed in W. P. No. 6339 of 1995 dated 30-12-1998, the proceedings initiated by the Co-operative Bank is subject to the result of the appeal suit and as on date, the petitioner does not have any enforceable right to seek for impleadlng him as a party to the proceedings.
57. It is settled law that it is open to the Court to add any such person as necessary party in the suit to enable the Court to effectively adjudicate the questions involved in the suit. Thus, the question of implead-ment of party has to be decided under Order 1 Rule 10 C.P.C. which provides that only a necessary or proper party should be added.
58. The necessary party is one without whom no order can be effectively made. The proper party is one who is necessary for the final decision of the questions involved in the proceedings. Therefore, the addition of parties would depend upon the judicial discretion which has to be exercised in the facts and circumstances of a particular case.
59. The above principles have been laid down by this Court in Somasundaram Chettiar v. Balasubramanian, .
60. In the light of the above legal situation, if we look at the prayer made by the petitioner, it is clear that no case has been made out to conclude that the petitioner, is either a necessary party or a proper party for adjudication of the issues raised in this case. Therefore, C.M.P. No. 19225 of 1999 is liable to be dismissed.
61. The appellant/defendant has also filed a petition in C.M.P. No. 14991 of 1986 to receive additional document to be marked as exhibit in this appeal. It is stated in the petition that this document is the agreement relating to the allotment of the plot by the Housing Board. But, on perusal of the document, it is clear that this document is nothing but a duplicate copy of the Application Form submitted by the defendant to the Madras State Housing Board, which is not relevant for the disposal of this appeal. Hence, C.M.P. No. 14991 of 1986 is liable to be dismissed.
62. The result, the Appeal suit is dismissed confirming the judgment and decree of the trial Court. C.M.P No. 14991 of 1986 and C.M.P. No. 19225 of 1999 are also dismissed.