Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Appeal (civil) 1734 of 2008
PETITIONER:
P. Swaroopa Rani
RESPONDENT:
M. Hari Narayana @ Hari Babu
DATE OF JUDGMENT: 04/03/2008
BENCH:
S.B. Sinha & V.S. Sirpurkar
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 1734 OF 2008
[Arising out of SLP (Civil) No. 15670 of 2006]
WITH
CIVIL APPEAL NO. OF 2008
[Arising out of SLP (Civil) No. 16215 of 2006]
S.B. SINHA, J :
1. Leave granted.
2. Appellant is the owner of a cinema theatre. An agreement of sale
dated 28.03.2001 was entered into by and between the parties hereto in
respect of the said property for a consideration of Rs. 64 lakhs. Respondent
made part payment of Rs. 32,97,000/- of the said amount. A suit for specific
performance of the contract was filed as no deed of sale was executed in
terms of the said agreement dated 28.03.2001.
3. During hearing of the said suit, a receipt was filed showing payment
of a sum of Rs. 4,03,000/- to the appellant herein. The said receipt was
marked as Exhibit A.15. On the said basis, allegedly, possession of the
theatre was obtained by the respondent. The learned Trial Judge, however,
dismissed the said suit by an order dated 29.04.2006 inter alia opining:
"45. Therefore, in the circumstances I find that
there is no evidence produced by the plaintiff
which is sufficient to outweigh the opinion and the
evidence of D.W.4. Further it is to be seen that
though after execution of Ex. A.15 he came to
know about huge debts by defendant under the said
mortgage deeds, taxes dues and other statutory
liabilities and that defendant were not cooperating
and adopted evasive attitude in clearing the debts,
dues and other liabilities and were not allowing
him to discharge the mortgage debt to the Union
Bank of India, he kept quite till filing of the suit,
without even issuing a notice to the defendant.
Even if he was in possession as claimed by him
with effect from the date of Ex.A.15, in view of
the huge debts and liabilities, which to his
knowledge the defendant was not in a position to
discharge and not making any efforts to discharge
the same he would not have kept quite in the
normal circumstances without issuing any notice to
the defendant. Thus there is no mention about this
Ex.A.15 dated 18.09.2002 in the written form
anywhere till he filed the plaint on 05.12.2002.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
Therefore, these circumstances also render the oral
evidence of P.W.1 and P.W.2 highly doubtful on
this aspect. Therefore, in these circumstances I
find that the evidence of D.W.4 and the contents of
Ex.C.4 opinion and Ex.C.5 reasons for opinion are
sufficient to prove that the signature of D.W.1 is
forged in Ex.A.15. Therefore in the circumstances
it shall be held that the contention of the plaintiff
and the evidence of P.W.1 that on 18.09.2002 he
paid Rs. 4,03,000/- towards part of sale
consideration and D.W.1 delivered possession of
plaint schedule theater to him is not true.
Therefore, in the circumstances it also shall be
held that the plaintiff failed to prove that he came
into possession of the plaint schedule property in
pursuance of the part performance of the contract
covered by Ex.A.4."
It was furthermore opined:
"Therefore, following this decision of the
Honourable High Court of Andhra Pradesh it shall
be held that the plaintiff, since failed to prove that
he paid Rs. 4,03,000/- towards part payment of
sale consideration of D.W.1 and she delivered
possession of plaint schedule to him on 18.09.2002
and passed Ex.A.15 receipt. It shall be held that
though the time is not the essence of the contract
and the plaintiff is justified in not making further
remaining part of sale consideration by
31.12.2001, since he approached the court with
unclean hands he cannot be granted a decree for
specific performance. Since it is a specific case
that he came into possession of plaint schedule
property in part performance of Ex. A.4 agreement
of sale, on 18.09.2002 under Ex. A.15 and failed to
prove the same, it is irrelevant and not necessary to
decide how he came into possession of the plaint
schedule property. Therefore, in the circumstances
he is also not entitled for protection under section
53-A of Transfer of Property Act and hence is not
entitled to seek perpetual injunction."
4. Appellant, in view of the said observations, lodged a First Information
Report, which was marked as Crime No. 79 of 2006, in the Kadapa Police
Station alleging that the said receipt (Ex. A.15) was a fabricated document.
5. Respondent, however, preferred an appeal against the said judgment
and decree dated 29.04.2006. In the said appeal preferred by the respondent,
an application for interim stay of the operation of the said judgment was
filed. A Division Bench of the High Court by a judgment and order dated
24.05.2006 directed:
"Going by the principle that an appeal is a
continuation of the suit and the state of affairs
obtaining during the pendency of the suit must be
continued, as far as possible, during the appeal
also, we grant an interim direction to the effect that
the petitioner shall be entitled to remain in
possession of the suit schedule theatre, subject to
the condition that it shall deposit a sum of Rs.
30,000/- (Rupees thirty thousand only) per month,
commencing from June 2006, until further orders.
It shall also be open to the respondent to withdraw
the amount without furnishing any security."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
6. Respondent filed Miscellaneous Petition in the said appeal, being
ASMP No. 995 of 2006, for modification of the order dated 24.05.2006,
which was allowed by an order dated 17.07.2006.
7. By another order dated 17.07.2006, the High Court stayed the
proceedings in Crime No. 79 of 2006.
8. Appellant is, thus, before us.
9. Mr. V.R. Reddy, learned Senior Counsel appearing on behalf of the
appellant in Civil Appeal arising out of SLP (C) No. 15670 of 2006, would
submit that the High Court committed a serious illegality in staying the
investigation of a criminal case.
10. Mr. P.S. Narsima, learned counsel appearing on behalf of the
appellant in Civil Appeal arising out of SLP (C) No. 16215 of 2006, would
submit that keeping in view the observations made by the learned Trial
Judge and furthermore in view of the fact that the respondent had not
approached the court with clean hands, no interim order in his favour should
have been passed.
11. Mr. Bhaskar Gupta, learned senior counsel appearing on behalf of the
respondent, on the other hand, submitted that the court has power to grant
injunction even in respect of a proceeding which is stricto sensu not the
subject matter of the proceedings before the High Court.
12. The High Court indisputably is a final court of fact. It may go into the
correctness or otherwise of the findings arrived at by the learned Trial Judge.
A’ fortiori it can set aside the findings of the court below that the Ex. A.15 is
a forged document or its authenticity could not be proved by the respondent.
13. It is, however, well-settled that in a given case, civil proceedings and
criminal proceedings can proceed simultaneously. Whether civil
proceedings or criminal proceedings shall be stayed depends upon the fact
and circumstances of each case. [See M.S. Sheriff v. State of Madras AIR
1954 SC 397, Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370
and Institute of Chartered Accountants of India v. Assn. of Chartered
Certified Accountants (2005) 12 SCC 226]
14. It is furthermore trite that Section 195(1)(b)(ii) of the Code of
Criminal Procedure would not be attracted where a forged document has
been filed. It was so held by a Constitution Bench of this Court in Iqbal
Singh Marwah (supra) stating:
"25. An enlarged interpretation to Section
195(1)( b )( ii ), whereby the bar created by the
said provision would also operate where after
commission of an act of forgery the document is
subsequently produced in court, is capable of
great misuse. As pointed out in Sachida Nand
Singh after preparing a forged document or
committing an act of forgery, a person may
manage to get a proceeding instituted in any
civil, criminal or revenue court, either by himself
or through someone set up by him and simply file
the document in the said proceeding. He would
thus be protected from prosecution, either at the
instance of a private party or the police until the
court, where the document has been filed, itself
chooses to file a complaint. The litigation may be
a prolonged one due to which the actual trial of
such a person may be delayed indefinitely. Such
an interpretation would be highly detrimental to
the interest of the society at large.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
26. Judicial notice can be taken of the fact that
the courts are normally reluctant to direct filing
of a criminal complaint and such a course is
rarely adopted. It will not be fair and proper to
give an interpretation which leads to a situation
where a person alleged to have committed an
offence of the type enumerated in clause ( b )( ii )
is either not placed for trial on account of non-
filing of a complaint or if a complaint is filed, the
same does not come to its logical end. Judging
from such an angle will be in consonance with
the principle that an unworkable or impracticable
result should be avoided. In Statutory
Interpretation by Francis Bennion (3rd Edn.),
para 313, the principle has been stated in the
following manner:
"The court seeks to avoid a construction of an
enactment that produces an unworkable or
impracticable result, since this is unlikely to have
been intended by Parliament. Sometimes,
however, there are overriding reasons for
applying such a construction, for example, where
it appears that Parliament really intended it or the
literal meaning is too strong.""
In regard to the possible conflict of findings between civil and
criminal court, however, it was opined:
"32. Coming to the last contention that an effort
should be made to avoid conflict of findings
between the civil and criminal courts, it is
necessary to point out that the standard of proof
required in the two proceedings are entirely
different. Civil cases are decided on the basis of
preponderance of evidence while in a criminal
case the entire burden lies on the prosecution and
proof beyond reasonable doubt has to be given.
There is neither any statutory provision nor any
legal principle that the findings recorded in one
proceeding may be treated as final or binding in
the other, as both the cases have to be decided on
the basis of the evidence adduced therein\005"
It was concluded:
"33. In view of the discussion made above, we
are of the opinion that Sachida Nand Singh has
been correctly decided and the view taken therein
is the correct view. Section 195(1)( b )( ii ) CrPC
would be attracted only when the offences
enumerated in the said provision have been
committed with respect to a document after it has
been produced or given in evidence in a
proceeding in any court i.e. during the time when
the document was in custodia legis."
15. Filing of an independent criminal proceeding, although initiated in
terms of some observations made by the civil court, is not barred under any
statute.
16. The High Court, therefore, in our opinion, was not correct in staying
the investigation in the said matter.
Reliance has been placed by Mr. Gupta on Mahar Jahan and Others v.
State of Delhi and Others [(2004) 13 SCC 421] wherein this Court was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
dealing with a proceeding under Section 145 of the Code of Criminal
Procedure. This Court noticed that a civil dispute was given the colour of a
criminal case. As therein a proceeding under Section 145 of the Code of
Criminal Procedure was pending, when a civil suit was also pending before a
competent court of law, it was opined:
"4. It is not disputed by the learned counsel for
the parties that this very property which is the
subject-matter of these criminal proceedings is
also the subject-matter of the civil suit pending in
the civil court. The question as to possession over
the property or entitlement to possession would
be determined by the civil court. The criminal
proceedings have remained pending for about a
decade. We do not find any propriety behind
allowing these proceedings to continue in view of
the parties having already approached the civil
court. Whichever way proceedings under Section
145 CrPC may terminate, the order of the
criminal court would always be subject to
decision by the civil court. Inasmuch as the
parties are already before the civil court, we
deem it proper to let the civil suit be decided and
therein appropriate interim order be passed
taking care of the grievances of the parties by
making such arrangement as may remain in
operation during the hearing of the civil suit."
It was furthermore observed:
"7. We have simply noted the contentions raised
by the parties. The civil court, in our opinion,
would be the most appropriate forum to take care
of such grievances and pass such interim order as
would reasonably protect the interests of both the
parties. The civil court may issue an ad interim
injunction, may appoint a Commissioner or
Receiver or may make any other interim
arrangement as to possession or user of the
property which is the subject-matter of
proceedings in the civil court exercising the
power conferred on it by Sections 94 and 151 of
the Code of Civil Procedure."
It was, therefore, a case where this Court quashed a proceeding under
Section 145 of the Code of Criminal Procedure as the matter pending before
it arose out of a civil proceedings. Such observations were made keeping in
view the fact that possession of the parties over the property in suit was in
question.
17. The impugned order, therefore, cannot be sustained which is set aside
accordingly. Civil Appeal arising out of SLP (C) No. 15670 of 2006 is
allowed.
18. We, however, are of the opinion that the High Court should be
requested to hear the appeal as early as possible and preferably within a
period of three months from the date of receipt of a copy of this order. This,
however, may not be taken to mean that we have entered into the merit of
the matter.
19. It goes without saying that the respondent shall be at liberty to take
recourse to such a remedy which is available to him in law. We have
interfered with the impugned order only because in law simultaneous
proceedings of a civil and a criminal case is permissible.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
20. In view of the aforementioned observations, we are of the opinion that
the interim order dated 24.05.2006 as modified by an order dated 17.07.2006
need not be interfered with particularly in view of the fact that according to
the respondent it had made a payment of Rs. 35,47,000/- besides the
disputed payment of Rs. 4,03,000/- and made deposits of Rs. 67,54,088/-.
21. For the reasons aforementioned, Civil Appeal arising out of SLP (C)
No. 16215 of 2006 is dismissed.