# Hodil Singh v. Bhagwant Singh

- **Citation:** (2010) 1 ILRA 98
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-02-03
- **Case number:** Second Appeal No.156 of 2010
- **Bench:** Rakesh Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hodil-singh-v-bhagwant-singh-41558
- **Pages:** 7

## Headnote

Code of Civil Procedure- Section 100-Suit
for specific performance-dismissed by
Trail
Court-Lower
Appellate
court
decreed the Suit with specific finding
about
readiness
and
willingness
of
Respondent's father-common tendency
developed to rescile from contract after
receiving
handsome
amount-
person
who paid money found cheated after
getting involved in unwanted litigationsPrimary duty of court to enforce such
promise-Court
must
rescine
to
encourage
such
dishonest
tendency-
appeal dismissed-no substantial question
of law.
1 All] Hodil Singh V. Bhagwant Singh
99
Held: Para 16

Now a days, it has become a regular
tendency
that
first
enter
into
an
agreement or a contract in respect of
immoveable property or some other
contractual affairs or business with an
ulterior motive and thereafter rescile
from the promise made through the
agreement or contract by entering into
litigation. It is a new device invented
just in order to get the execution of
terms and conditions contained in an
agreement or contract frustrated. The
person, who has paid the money or
consideration
on
execution
of
an
agreement or contract feels cheated
after getting involved in an unexpected
and unsavoury situation of unwanted
litigation so initiated by a dishonest
person. Thus, the primary duty of a Court
of law is to enforce a promise, which the
parties have made and to uphold the
sanctity of a contract or an agreement
entered into between the parties, which
form the basis of a society, though there
may be exception. The Courts must
exercise extreme restraint in holding a
contract or an agreement to be void as it
would
encourage
dishonesty
and
cheating.
Case Law discussed:
2009(2) AWC 1546, AIR 2003 SC 1391, AIR
2004 SC 3504, 2008 (105) RD 739, 2009(4)
AWC 3613, AIR 2009 SC 1819, AIR 1959 SC

## Text

98 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
and Empowerment, wherein, it has been
indicated that the claim of the petitioner
does not come within the fourcorners of
the
Rules
and
he
has
obtained
employment against a post which could
not have been filled by direct recruitment.
Thereafter, the matter was inquired into
and the impugned order has been passed.

7. Learned counsel contends that
after having continued and having been
confirmed in service, the petitioner could
not have been removed from the post.

8. It is true that the Apex Court in
case of Dr. M.S. Mudhol & another Vs.
Halegkar & others, reported in 1993
Volume 3 SCC Page 591 has indicated
that even if a person has continued in
service for long on the basis of some
deficiency in initial appointment then
such appointment should not be dispensed
with. However, the case at hand is
distinguishable on facts.

9. The Apex Court subsequently in
the case of State of U.P. Vs. Neeraj
Awasthi & others, reported in 2006
Volume 1 AWC Page 175 has clarified
the aforesaid position and held that an
irregularity can be cured but an illegality
cannot
be
cured
through
judicial
intervention. The Apex Court has held
that a person who has been appointed
completely
de-hors
the
rules,
such
appointment
on
equities
cannot
be
sustained. Reference be had to paras 52
and 57.

10. In the instant case the petitioner
has been admittedly appointed against a
promotional post on which no direct
recruitment could have taken place. The
Court is supported in its view by the
decision in the case of Hiraman Vs. State
of U.P., 1997(11) SCC Page 630. In this
view of the matter the impugned order
cannot be interfered in view of the
findings recorded therein.

11. On equities petitioner has
worked
for
almost
18
years.
The
Executive Officer, Nagar Panchayat may
sympathetically consider the petitioners
engagement
as
a
Safai
Karmchari.
Keeping in view the aforesaid position
explained herein above the petition is
dismissed with the aforesaid observations.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.02.2010

BEFORE
THE HON'BLE RAKESH SHARMA,J.

Second Appeal No.156 of 2010

Hodil Singh

...Appellant
Versus
Bhagwant Singh

 ...Respondent

Counsel for the Appellant:
Sri Anil Kumar Aditya

Counsel for the Opposite Party:
Sri Manish Chandra Tiwari
Sri A.T. Kulsreshtha

Code of Civil Procedure- Section 100-Suit
for specific performance-dismissed by
Trail
Court-Lower
Appellate
court
decreed the Suit with specific finding
about
readiness
and
willingness
of
Respondent's father-common tendency
developed to rescile from contract after
receiving
handsome
amount-
person
who paid money found cheated after
getting involved in unwanted litigationsPrimary duty of court to enforce such
promise-Court
must
rescine
to
encourage
such
dishonest
tendency-
appeal dismissed-no substantial question
of law.
1 All] Hodil Singh V. Bhagwant Singh
99
Held: Para 16

Now a days, it has become a regular
tendency
that
first
enter
into
an
agreement or a contract in respect of
immoveable property or some other
contractual affairs or business with an
ulterior motive and thereafter rescile
from the promise made through the
agreement or contract by entering into
litigation. It is a new device invented
just in order to get the execution of
terms and conditions contained in an
agreement or contract frustrated. The
person, who has paid the money or
consideration
on
execution
of
an
agreement or contract feels cheated
after getting involved in an unexpected
and unsavoury situation of unwanted
litigation so initiated by a dishonest
person. Thus, the primary duty of a Court
of law is to enforce a promise, which the
parties have made and to uphold the
sanctity of a contract or an agreement
entered into between the parties, which
form the basis of a society, though there
may be exception. The Courts must
exercise extreme restraint in holding a
contract or an agreement to be void as it
would
encourage
dishonesty
and
cheating.
Case Law discussed:
2009(2) AWC 1546, AIR 2003 SC 1391, AIR
2004 SC 3504, 2008 (105) RD 739, 2009(4)
AWC 3613, AIR 2009 SC 1819, AIR 1959 SC
781.

(Delivered by: Hon'ble Rakesh Sharma, J.)

1. Heard Sri Anil Kumar Aditya,
learned counsel for the appellants and Sri
Manish Chandra Tiwari, holding brief of
Sri A.T. Kulsreshtha, learned counsel for
the respondents as well as perused the
materials
on
record,
including
the
judgments of the courts below.

2. This Second Appeal has been
preferred against the judgment and decree
dated
21.11.2009,
passed
by
the
Additional District Judge, Court No.12,
Aligarh, in Civil Appeal No.130 of 2004,
Bhagwant Singh Vs. Holdil Singh,
allowing
the
Appeal
preferred
by
respondent no.1 by which the judgment
and decree dated 22.5.2004, passed by the
Trial court has been set aside.

3. It emerges from the record that an
agreement to sell (a lease deed as alleged
by the appellant) was executed by one
Hodil Singh, now represented through his
legal heirs and legal representatives, on
27.4.1994 for selling of his Bhumidhari
agricultural land measuring 8 Bigha 13
Biswa and 15 Biswansi, situate in Village
Bajrangpur, Majra Vijay Garh, Pargana
Akrabad, Tehsil Sikandra Rao, now
Tehsil Koil, District Aligarh. The said
deed was duly registered in the office of
the Sub Registrar Sikandra Rao, District
Aligarh. Lateron, two Suits were filed in
the Civil Court, that is, one being Suit No.
375 of 1995, preferred by Hodil Singh
against Bhagwant Singh, seeking a relief
that the said agreement to sell, registered
on 27.4.1994, be declared null and void.
He had challenged this deed on various
grounds as mentioned in the plaint.
According to him, a document which was
registered on 27.4.1994, was, in fact, a
lease deed for cultivating the land in
dispute. Neither adequate consideration or
price of the land was given to him nor he
ever intended to transfer his agricultural
land. Another Suit, that is, Suit No. 855 of
1998, Bhagwant Singh Vs. Hodil Singh
was filed by Bhagwant Singh, now
represented through his legal heirs and
legal representatives, against Holdil Singh
seeking specific performance of the
contract entered into between the parties.

4. It was pleaded by Bhagwant
Singh that the said agreed to sell was
100 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
executed by Hodil Singh agreeing to sell
the aforesaid land for a total sum of
Rs.1,55,000/=
for
which
a
written
agreement/contract
was
prepared,
executed and registered on 27.4.1994 in
the office of the Sub Registrar. A sum of
Rs.30,000/- was paid as an advance
amount to Hodil Singh. According to him
Rs.26,000/- was paid before to Hodil
Singh before registration of the agreement
to sell and Rs.4,000/- was paid at the time
of registration of the agreement to sell in
the office of the Sub Registrar. These
events were noted in the agreement to
sell. The parties were agreed that the sale
deed would be executed by 27.10.1995. In
the meantime, vendee, that is, Bhagwant
Singh,
was
required
to
make
arrangements of the remaining amount to
be paid to vendor at the time of execution
of the sale deed.

5. In furtherance of the agreement to
sell, Bhagwant Singh, sent a written
notice to Hodil Singh, vendor, on
3.7.1995 for execution of the sale deed,
indicating therein that he had arranged the
money, but Hodil Singh did not turn up to
execute the sale deed. Thereafter, notices
were sent on 25.10.1995 and 27.10.1995
by Bhagwant Singh for execution of the
sale deed in the office of the Sub
Registrar. It was pleaded by Bhagwant
Singh in the plaint of Suit No. 855 of
1998 that through notices he had indicated
to Hodil Singh that he was will to pay the
remaining balance amount towards sale
consideration and was ready to get the
sale deed executed to discharge his part of
contract. On refusal of Hodil Singh, he
was compelled to file Suit No. 855 of
1998, which was ultimately decided by
the judgment and decree dated 22.5.2004.

6. The Trial court had decided these
two Suits by one and common judgment.
It had dismissed the Suit preferred by
Hodil Singh, declining to hold that the
document/deed, which was registered on
27.4.1994 was a lease deed. It was held
by the Trial court that Hodil Singh had
executed an agreement to sell in favour of
Bhagwant Singh, which was registered on
27.4.1994.
Following
findings
and
conclusions have been recorded by the
Trial court in its judgment:-

"UKT TATHYON SE SPASHT HAI
KI YADI HODIL SINGH DWARA
PATTA NISHPADIT KIYA GAYA TO
NISHCHIT ROOP SE SAMPATI KA
KABJA BHI BHAGWANT SINGH KO
DE DIYA HOTA AUR YADI KABJA
NAHI DIYA GAYA TO VADI HODIL
SINGH YAH SPASHT KARTA KI KIN
PARISTHITYON
MEIN
PATTA
NISHPADIT KARANE KE BAAD BHI
USKE DWARA BHAGWANT SINGH
KA SMPATI PAR KABJA NAHIN
DIYA
GAYA
THA.
UPROK
PARICHARHA SE SPASHT HAI KI
VADI
HODIL
SINGH
DWARA
DASTAVEJ
KO
IKRARNAMA
SAMAJHATE HUE HI NISHPADIT
KIYA GAYA THA."

7. Ultimately, the Trial court had
dismissed Suit NO. 375 of 1995, filed by
Hodil Singh and the Suit filed by
Bhagwant Singh was partly decreed,
directing the vendor to return Rs.4,000/-
receiving by him as advance money. This
decree was challenged by Bhagwant
Singh by filing a First Appeal, which was
registered as Civil Appeal No. 130 of
2004. The lower Appellate court has
allowed he appeal preferred by Bhagwant
Singh, represented by his legal heirs and
legal representatives. The judgment and
1 All] Hodil Singh V. Bhagwant Singh
101
decree passed by the Trial court, while
deciding, Suit no. 855 of 1998, preferred
by Bhagwant Singh was set aside. The
lower Appellate court has held that Hodil
Singh could receive the balance amount
of sale consideration of Rs.1,25,000/- and
execute sale deed in favour of legal
representatives of Bhagwant Singh. This
judgment is under challenge in this
Second Appeal.

8. Sri Anil Kumar Aditya, learned
counsel for the appellants, has assailed
this
judgment
on
various
grounds.
According
to
him,
the
document
registered on 27.4.1994 was merely a
lease deed. It was not an agreement to
sell. The total advance amount of
Rs.30,000/= as alleged was not paid to
Hodil Singh. The Trial court has rightly
held that he was only paid Rs. 4,000/- at
the time of registration of agreement to
sell. Much stress has been laid that there
was no willingness or readiness shown by
Bhagwant Singh in arranging the money
and getting the sale deed executed within
time. Hodil Singh was not paid the entire
agreed amount within time. Suit N. 855 of
1998 was preferred beyond time of three
years of the deed of execution of
agreement to sell. This shows that
Bhagwant Singh never intended to get the
sale deed executed within the stipulated
period of time and he was only taking
advantage of the situation. In support of
his submissions, he has placed reliance on
the judgments reported in 2009(2) AWC
1546, Azhar Sultana Vs. B. Rajamani and
others, AIR 2003 SC 1391, Manjunath
Anandappa
Urf
Shivappa
Hansi
v.
Tammanasa and others, AIR 2004 SC
3504, Pukhraj D. Jain and others v. G.
Gopalakrishna and 2008 (105) RD 739,
Shambhu Prasad Vs. Smt. Shamim Jahan
to strengthen his submissions as put-forth
in the grounds of appeal and during
arguments.
He
led
the
Court
to
chronology of events and facts to show
that the element willingness and readiness
was absent in the present case. The delay
in approaching the court itself reflects on
the conduct of the respondent. He has
further submitted that there were two
Suits, that is, Suit No. 375 of 1995 and
Suit No. 855 of 1998 and it can be said
that there were two judgments deciding
two Suits. Therefore, Bhagwant Singh
should have filed two Appeals which has
not been done in the present case.
Principles of Res Judicata have also not
been followed in the present case. In this
regard, he has placed reliance on the
judgments reported in AIR 2009 SC 1819,
Harbans Singh and others Vs. Sant Hari
Singh and others and 2009(4) AWC 3613,
Hradeshwar Nath v. Nandlal and another.
In addition, the other grounds were also
highlighted in the memo of Appeal.

9. On the other hand, Sri Manish
Chandra Tiwari, learned counsel for the
respondents, has opposed the motion.
According to him, Bhagwant Singh, had
one and half years' time to get the sale
deed executed. It was stipulated in the
agreement to sell itself that the sale deed
could be executed by 27.10.1995. He had
arranged the money and indicated his
intention, willingness and readiness by
sending notice firstly on 3.7.1995 and
thereafter on 25.10.1995 and 27.10.1995
requiring Hodil Singh to come in the
office of the Sub Registrar and execute
the sale deed. There is also a reference of
a Panchyat being held in the Village
which could not yield any result. In these
compelling
circumstances,
Bhagwant
Singh was left no option but to file Suit
No. 855 of 1998 for specific performance
of the contract. Sri Tiwari has supported
102 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the judgment rendered by the lower
Appellate court and drawn attention of the
Court on various findings recorded by the
Appellate court and the conclusions
drawn.

10. Having heard learned counsel
for the parties and carefully gone through
the materials available on record as well
as the judgments of the courts below.

11. In the present case, the Trial
court has already dismissed the Suit No.
375 of 1995, filed by the appellant, Hodil
Singh, the vendor, against Bhagwant
Singh, the vendee. It has categorically
recording findings and concluded that
there existed an agreement to sell not a
lease deed. The findings recorded by the
Trial court, as mentioned in the foregoing
paragraphs, have remained unchallenged
and uncontested. These findings and
conclusions certainly operate against the
appellants. Even this Court itself has
perused the findings recorded by the Trial
court and the lower Appellate court. Here
is a case where the Trial court itself had
held that Hodil Singh was conversant with
the procedure for execution of the deeds.
It was not the case that he was an illiterate
person or insane person having no
knowledge of execution of deeds. This
fact finds support from the fact that in the
agreement to sell photographs of both the
parties, that is, vendor, Hodil Singh and
Bhagwant Singh were affixed, which
were duly identified by the witnesses,
terms and conditions were stipulated in
writing and it was also signed by the
vendee, Hodil Singh and as such it cannot
be said that Hodil Singh was not aware of
the contents of the agreement to sell or
unware of the execution of the agreement
to sell or that it was a lease deed. He was
paid Rs.26,000/- before registration of the
agreement to sell and Rs.4,000/- was paid
to him at the time of registration of the
agreement to sell in the office of the Sub
Registrar.
Thus,
by
no
stretch
of
imagination it can be presumed that he
was not aware that he had executed an
agreement to sell. Therefore, there is no
reason to form a different opinion during
the course of hearing of Second Appeal
on admission to take another view in the
matter. There is no allegation against the
Sub Registrar or the Deed Writer that
incorrect facts were mentioned in the
agreement to sell. The Trial court has
already held agreement to sell to be a
valid and legal document and this Court
while examining the matter in the Second
Appeal is in full agreement with this
finding recorded by the Trial court and
the lower Appellate court as this is a
concurrent finding of fact.

12. As far as the intention to
perform the part of the contract by
Bhagwant Singh is concerned, in the
present set of circumstances, this Court
has taken note of the fact that the
respondent-Bhagwant Singh had filed 12
documents, which were placed as Paper
7-Ga. These 12 documents included the
registered notice sent by Bhagwant Singh,
requiring Hodil Singh to come to the
office of the Sub Registrar for execution
of the sale deed and the receipts issued by
the Sub Registrar that the vendee,
Bhagwant Singh, had appeared before the
Sub Registrar. Thus, on the basis of
documentary and oral evidence produced
by the vendee, Bhagwant Singh, the lower
Appellate court has formed the opinion
that there was every intention, willingness
and readiness available on the part of
Bhagwant Singh to show that he was
always prepared to get the sale deed
executed. The notices were sent by
1 All] Hodil Singh V. Bhagwant Singh
103
Bhagwant Singh to Hodil Singh within
the
stipulated
period
on
3.7.1995,
25.10.1995 and 27.10.1995 for getting the
sale deed executed. There was specific
mention in the plaint also that such
intention, willingness and readiness were
existed at the time of filing of the Suit.

13. It is noteworthy that the
appellant had failed to demolish these 12
documents
and
testimony
of
the
witnesses. No document to the contrary
was produced by Hodil Singh before the
courts below. The lower Appellate court,
in the light of these documents and oral
testimony
of
witnesses
has
rightly
recorded its opinion that these evidences
remained
uncontroverted
and
unchallenged. While deciding the Suits,
the Trial court has ignored all these
documents. It is relevant to mention here
that the lower Appellate court has
followed the law laid down in the
judgments reported in AIR 1997 SC 463,
AIR 2006 SC 2172, Sugani v. Rameshwar
Daw and others and AIR 2009 SC 2408,
Moti Lal Jain v. Ramdasi and others while
recording its findings and conclusions.
Even this Court, from the factual matrix
of the case, is of the opinion that the
vendor, Bhagwant Singh, had proved his
case before the courts below that he was
always willing and ready to get the sale
deed executing after the remaining
balance
sale
consideration.
His
willingness and readiness finds support
from the notices sent by him on 3.7.1995,
25.10.1995 and 27.10.1995 and from
other documentary evidence.

14. As far as application of
principles of Res Judicate and other
arguments of Sri Anil Kumar Aditya,
learned counsel for the appellants, are
concerned, both the Suits, that is, Suit
Nos. 375 of 1995 and 855 of 1998 were
clubbed together by the Trial court and
both were decided by one common
judgment and decree dated 22.5.2004,
after hearing learned counsel for the
parties and with their consent as the very
genesis and the subject matter of both the
Suits were same. By the said judgment
and decree, Suit No. 375 of 1995, filed by
the vendee, Hodil Singh against the
vendor, Bhagwant Singh, was dismissed
and Suit No.855 of 1998, filed by the
vendor, Bhagwant Singh, was partly
decreed. The Trial court, while deciding
the Suits, framed separate issues which
were dealt with, findings and conclusions
were recorded and evidence adduced were
appreciated. Both the parties agreed for
clubbing of the Suits, thus, one and
common judgment was rendered as the
issues and subject matter of both the Suits
were common and same. Thus, rightly a
single Appeal was preferred by Bhagwant
Singh, which was rightly dealt with by the
lower Appellate court. It appears that no
serious objection was raised either before
the Trial court or before the lower
Appellate court and, therefore, at the
Second
Appellate
stage
it
is
not
permissible to raise this issue. Since there
was a common judgment, the lower
Appellate court did not add anything new,
while dealing with the appeal and decided
the issues and concluded the controversy.

15. While dealing with Second
Appeals, this Court is regularly noticing
that the parties entering into agreement to
sell or contract or sale deeds are
approaching
the
Court
taking
the
dishonest pleas that either they have not
executed agreement to sell or contract or
they do not have knowledge about the
contents or terms and conditions of the
agreement to sell or the contract entered
104 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
into just in order to escape to perform
their part of contract and to frustrate
performance of the contract thereby
showing extreme dishonesty and cheating
to the sanctity of the agreement or
contract or sale deeds, which, in fact they
have entered into and received money in
part performance thereof. In the process
of execution of agreements, contract or
sale deed how it could be possible that the
persons executing these documents/deeds
was unaware of the contents or terms and
conditions of the documents/deeds on
which he put his signature or thumb
impression, as the case may be. In most of
the
cases
of
challenging
the
documents/deeds, it is the dishonesty of
the person, who has executed the
agreement to sell, contract or sale deed as
well as it is high degree of cheating and
fraud with the other party. In the present
days, if it is permitted it will create a
chaos in the Banking, finance and other
economic affairs, which may result
irreparable damage to the economy as
well. In the execution of the agreements,
contracts or sale deeds, it is the faith and
confidence of the parties which plays the
important role. If this faith and confidence
in execution of agreements, contracts and
sale deeds is permitted to be shaken, it
will convey very bad indication for the
economy and the promises reduced by
way of these documents. Thus, the
sanctity of agreement must be respected
and preserved.

16. Now a days, it has become a
regular tendency that first enter into an
agreement or a contract in respect of
immovable property or some other
contractual affairs or business with an
ulterior motive and thereafter resile from
the promise made through the agreement
or contract by entering into litigation. It is
a new device invented just in order to get
the execution of terms and conditions
contained in an agreement or contract
frustrated. The person, who has paid the
money or consideration on execution of
an agreement or contract feels cheated
after getting involved in an unexpected
and unsavoury situation of unwanted
litigation so initiated by a dishonest
person. Thus, the primary duty of a Court
of law is to enforce a promise, which the
parties have made and to uphold the
sanctity of a contract or an agreement
entered into between the parties, which
form the basis of a society, though there
may be exception. The Courts must
exercise extreme restraint in holding a
contract or an agreement to be void as it
would encourage dishonesty and cheating.

17. My this view finds support from
the judgment reported in AIR 1959 SC
781, Gherulal Parakh v. Mahadeodas
Maiya.

18. In view of the discussions made
above, no substantial question arises to be
considered in the present Second Appeal.
Accordingly, the Second Appeal is
dismissed. The judgment and decree of
the Lower Appellate court is affirmed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.02.2010

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE HON'BLE S.S. TIWARI, J.

Criminal Contempt Petition No. 11 of 2007

In Re: (Om Prakash Dixit)
...Applicant
Versus
Shiv Raj Singh Chauhan ...Contemnor