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Md. Bashir Vs. Abdul Fazl Siddiqui - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 169 of 1963
Judge
Reported inAIR1965Cal209
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 2
AppellantMd. Bashir
RespondentAbdul Fazl Siddiqui
Appellant AdvocateAjoy K. Ghosh, Adv.
Respondent AdvocateR.L. Sinha, Adv.
DispositionAppeal dismissed
Cases ReferredIn Rajammal v. R. Gopalaswami Naidu
Excerpt:
- .....the plaintiff wrote to the solicitor for the defendant that the agreement had been signed but the words 'or thereafter' had been interpolated into the agreement. on the 9th january, 1963 the application for sale of the said premises was dismissed on technical grounds. on the 10th january 1963, an application was made by the defendant under order 21 rule 2(2) of the civil procedure code for recording the alleged adjustment dated 28th november, 1962 of the consent decree dated 11th august, 1958. this application was opposed by the plaintiff and the matter was set down for trial on evidence. on the 28th march, 1963 ray, j., after hearing the evidence held that the consent decree had been adjusted on the 28th november, 1962 as alleged by the defendant, and he directed the adjustment to be.....
Judgment:

Sinha, J.

1. This is an appeal from an order passed by Ray, J. on the 28th March, 1963. The facts are shortly as follows : The plaintiff-appellant Md. Bashir instituted Suit No, 305 of 1956 against the defendant Abdul Fazl Siddiqui, for recovery of the sum of Rs. 3630/- on account of arrears of rent in respect of premises No. 62, Tattola Lane, Calcutta, and for cost On the 11th August, 1958 the suit was compromised by a consent decree. It was decreed that the defendant would pay to the plaintiff the sum of Rs. 3000/- in full settlement of his claim and cost. On the 20th May, 1959 the plaintiff decree-holder made an application for execution of the said decree and obtained an order for attachment of premises No. 43, Ripon Street, Calcutta. On the 3rd June 1959 the attachment was effected. On the 10th March, 1962 the plaintiff made an application for sale of the attached premises. On the 28th May, 1962 Sekina Begum, wife of the defendant, made an application for vacating the said order of attachment on premises No. 43, Ripon Street, on the allegation that the said premises belonged to her but was purchased in the benami of her husband. On the 20th September, 1962 an order was made by consent of the parties whereby it was ordered that if the said Sakina Begum filed a suit by 3rd December, 1963 then there would to no sale but if no suit was filed by that date, her application would stand dismissed with costs. No suit was filed by Sakina Begum. On the 28th November, 1962 the solicitor of the defendant wrote to the solicitor of the plaintiff that the parties had settled the matter amicably out of Court. On the same day, the solicitor for the plaintiff replied that he had received no such instruction to the effect that the matter had been settled. On the 3rd January, 1963 a written agreement signed by the parties dated 28th November, 1962 was shown to the plaintiff's solicitor. On the 4th January, 1963 the solicitor for the plaintiff wrote to the solicitor for the defendant that the agreement had been signed but the words 'or thereafter' had been interpolated into the agreement. On the 9th January, 1963 the application for sale of the said premises was dismissed on technical grounds. On the 10th January 1963, an application was made by the defendant under Order 21 Rule 2(2) of the Civil Procedure Code for recording the alleged adjustment dated 28th November, 1962 of the consent decree dated 11th August, 1958. This application was opposed by the plaintiff and the matter was set down for trial on evidence. On the 28th March, 1963 Ray, J., after hearing the evidence held that the consent decree had been adjusted on the 28th November, 1962 as alleged by the defendant, and he directed the adjustment to be recorded. It is against thisorder that this appeal is directed. The alleged terms upon which the consent decree was adjusted is Ex. A to the petition and is set out at page 7 of the Paper Book. The alleged terms are as follows :-

'1. That the above suit is settled out of Court between the parties and necessary steps will be taken by the plaintiff to file terms of settlement before the court.

2. That on or before the 3rd day of December 1962 or thereafter the plaintiff will receive from the defendant the sum of Rs. 1500/- (Rupees one thousand five hundred) in full and final settlement of the above suit including costs.

3. That upon payment of the said sum of Rs. 1500/-the. plaintiff will admit that Sahina Begum Is the absolute owner of the premises No. 43, Ripon Street, Calcutta and the plaintiff will waive his all charges, lien against the said property or against her.'

2. The dispute between the parties is as follows : Both parties admit signing this document but according to the plaintiff the words 'or thereafter after the words '3rd day of December 1962' were not there when he signed the agreement, but had been interpolated afterwards. If the adjustment stood without those two words, then there has been no compliance with it because the sum of Rs. 1500/- was neither paid nor tendered, on or before the 3rd day of December 1962. As I have mentioned above, the matter was set down for trial on evidence. On behalf of the defendant, he himself and one Nurul Hasan, a teacher, has given evidence. On behalf of the plaintiff, the plaintiff himself has given evidence, and no other evidence was called. Coming to the adjustment, the case on behalf of the defendant was that there was a typed original on stamp paper and also a carbon-copy on stamp paper. Both these documents were signed by the parties and the original remained with the plaintiff and the carbon copy with the defendant. According to the defendant, one Khalil the elder brother of the plaintiff was his class-mate and through his kind offices a settlement was brought about. In the morning of the 28th November, 1962 at about 11 a. m. the two parties met at the residence of the plaintiff and made an outline of the agreement. Both of them came to the High Court and two stamp papers of Re. 1/-each, were purchased in the name of Md. Bashir and then they went to a typist's chamber at No. 7, Old Post Office Street. There, the agreed draft was drawn up and the date 3rd December, 1962 inserted, and it was typed out. While the documents were being typed the plaintiff left and it was agreed that the document would be executed in the evening at the plaintiff's residence. The defendant's evidence is that in the evening at about 7 p.m. he went to the residence of the plaintiff accompanied by one Nurul Hasan, who is a private tutor to his children. The defendant pointed out that it may not be possible for him to find the amount within. 3rd day of December, which only gave him four days, and he ashed the plaintiff to extend the time a title and suggested that the words 'or thereafter' be added after the date and that the intention of the parties was that the payment would be made before the application for sale which was pending before this Court was disposed of. It is the defendant's specific case that thereupon, in both the original documents and the carbon copy, the words 'or thereafter' were added in the handwriting of the defendant and after signature the original was kept by the plaintiff and the carbon copy was kept by the defendant. During all this time,the parties did not consult their legal advisers, but chose to carry out the whole operation of adjustment, by themselves. The defendant has produced a signed Copy and this is Ex. A. I have looked Into the original and find that it is a carbon copy and the body of the agreement is typed out but the words 'or thereafter' have been added in ink. The plaintiff has made out the case that there was only one document which was signed by both the parties and it is this document that has been produced by the defendant. According to him, this document as signed by the parties did not contain the words 'or thereafter'. The plaintiff denies that he ever agreed to the incorporation of those words into the agreement. He denies ever having met Nurul Hasan. The learned Judge in his judgment has accepted the evidence of the defendant and has rejected that of the plaintiff. He has pointed out that the document that was produced is admittedly a carbon copy and although the plaintiff was a business-man and appeared to be quite experienced and clever, it is incredible that he signed the carbon copy only and kept no copy himself of the agreed terms. In our opinion, this is a cogent reason, and we 'think that the learned Judge was entitled to draw an adverse inference from the fact that the plaintiff denied having kept any copy. According to the learned Judge, the plaintiff did have in his possession the original but he was not producing the same as it would support the defendant's case and destroy his own. We agree with this conclusion. The learned Judge accepted the evidence of Nurul Hasan. The findings upon these points are findings of fact and there appears to be no ground for interfering with the conclusions of the court below. Mr. Ghose appearing on behalf of the plaintiff appellant has argued that there are many discrepancies in the evidence of the defendant which should have induced the learned Judge to reject his evidence. To start with, no such argument appears to have been advanced in the court below, and consequenly has not been dealt with by the learned Judge. Mr. Ghose was not present in the lower court and has frankly confessed that he has no personal knowledge of what happened there. The discrepancies that he points out are between, the evidence of the defendant and the statements made in the petition filed in the application. Mr. Ghose draws our attention to paragraphs 9 and 10 of the petition appearing at page 3 of the paper book. It is stated there that on the 28th November, 1962 at about 11 a.m. In the morning, the defendant went to the plaintiff's residence and there, the parties prepared a draft terms of settlement on the terms agreed. The agreement was that the plaintiff would accept Rs. 1500/- in full settlement of the decree including cost, and upon payment of the said sum he would admit that the defendant's wife was the absolute owner of premises No, 43 Ripon Street, Calcutta. The plaintiff and the defendant came to the High Court and purchased two stamp papers of Re. 1/- each. The plaintiff asked the defendant to get the draft terms typed in duplicate and to call on him at his residence in the evening for the purpose of signature. Accordingly, the stamp papers were typed in duplicate and in the evening the defendant went to the plaintiff's residence and thereafter the word's 'or thereafter' were agreed to be put after the date 3rd December 1962 in Clause 2 of the terms. The defendant thereupon inserted those words In both the copies which were then signed by the parties, the plaintiff retaining the original and the defendant the carbon copy. Mr. Ghose points out that in the petition it isnot stated, that both the plaintiff and the defendant went to the chamber of the typist or that the draft terms were settled, at the typist's chamber where the date 3rd December, 1962 was put In. During, the evidence, paragraph 9 of the petition was shown to the defendant and he was asked why the fact that Bashir left while the terms were being typed out, was not mentioned in. the petition. He answered that although it was not so specifically mentioned, this is what had happened. The defendant was not asked why in paragraph 9 there is no statement about the plaintiff going to the typist's chamber. The defendant was asked why in paragraph 9 he did not mention anything about the preparation of the draft in the typist's chamber. He explained that when he went to the plaintiff's residence in the morning, points were jotted down and an outline made but it was at the typist's chamber that the agreed draft was made out. Mr. Ghose has also pointed out that in his evidence (q. 59, 60, 61) the defendant stated that he had not informed his attorney Mr. Biswas about the final settlement before the 3rd day of December, 1952 and yet on the 28th November, 1962 Mr. Biswas solicitor for the defendant was writing to the solicitor for the plaintiff that he had been instructed that the parties had settled the matter amicably out of court. This letter is included in Ex. A to the petition and appears at page 17 of the paper book. Unfortunately, however, this letter was never put to the defendant to contradict his evidence. In our opinion, the so-called discrepancies are not such as would justify us in coming to the conclusion that the defendant's evidence should be disbelieved, The parties were giving evidence as to facts which had happened about a year previously and it was not to be expected that minor discrepancies would not be found. The evidence has to be read as a whole. Both the defendant and Nurul Hasan were cross-examined at length and it must be stated that they fairly withstood the same. It might have been of some importance to investigate as to the reason why Mr. Biswas wrote the letter on 28th November, 1962. But unfortunately, this letter was never put to the defendant. Nurul Hasan has also said that the words 'or thereafter' were inserted in his presence. There is no specific cross-examination on this point. On the questions of fact we are unable to disagree with the findings of the lower court. The next point taken, by Mr. Ghose is that even assuming that the words 'or thereafter' appeared in the agreement, the adjustment was not such EPS could be legally certified under the provisions of Order 21 Rule 2. He relies on a Bench decision of this court Azizur Rahman Chowdhury v. Ali Raja Choudhury : AIR1928Cal527 . In that case, a decree had been passed on 23rd November, 1921 declaring the plaintiff's right of easement on a certain pathway and directing the removal of obstructions and granting a perpetual injunction restraining the defendant from putting up such obstructions in future. It was inter alia alleged that the decree had been adjusted Inasmuch as there were proposals giving the decree-holder another pathway which proposal was said to have been accepted. Mukharji, J. said as follows:-

'Now, as regards the adjustment which is sought to have been arrived at .................. we have lookedinto the terms of the compromise that is alleged to have been so arrived at and which are embodied in the draft agreement that was filed on behalf of the judgment-debtors and we find that the adjustment did not consist of stipulations that had been carried out but, consisted merely of terms that had to be carried out in future. Such, an adjustment does not come within the purview of Order 21, Rule 2 of the Code of Civil Procedure .................. The, adjustment referred to in Order 21, Rule 2 is such an adjustment as completely or partly extinguishes the decree under execution and which will again have to be executed.'

3. If this decision means that a decree can' new be adjusted by an executory agreement, it is contrary to an earlier Bench decision of this court passed under; the Civil Procedure Code of 1882, Jhabar Mahomed v. Modan Sonabar, ILR 11 Cal 671. That this view has not been followed in this High Court appears from a judgment, of Mr. Justice Bijon Mukherjea, in Moulvi Serajul Haque v. Noabali Meah, 42 Cal WN 313. The legal position has been clearly set out by the learned Judge in the following words :-

'Mr. Das who appears for the appellant has argued before me that the lower appellate Court was in error in thinking that the decree could not be lawfully adjusted by a contract. This contention obviously is sound, it is not necessary that there must be a completed transaction. It is enough if the decree-holder enters Into' a fresh contract with the judgment-debtors for the satisfaction of the decree and if the contract is lawfully enforceable even though executory, it might operate as an adjustment of the decree. Distinction must be made, however, between a case where the decree-holder accepts as an immediate satisfaction or adjustment of the decree a promise of the judgment-debtors to do something in future and the case where the agreement is to accept a decree as adjusted or satisfied only if the thing promised is actually done at a future date.'

4-5. In the present case, the agreement itself will show that it was a present adjustment, although the payment was to be made in future. There was no stipulation that if any condition was not satisfied the original liability will revive. This position in law is approved of by other High Courts. In Ramanarasu v. Venkata Reddi, AIR 1933 Mad 28, Reilly J, said as follows:-

'It may well be said that, !f a judgment-debtor comes into court and alleges that the decree-holder has given up the weapon available in his hand, the decree which he can execute, and in its place has accepted a promise that the judgment-debtor will do something at a future elate and it that is disputed, then the evidence that the decree-holder has done such a thing should be carefully scrutinised. It may very well be a foolish thing for a decree-holder to do; it may be unreasonably generau's; It may be likely to give him a great deal of trouble in future. But, if it is proved that he has done so, that he has accepted a new contract in place of his decree as immediate satisfaction of that decree at the time of his acceptance, there is no legal impediment in the way of his doing so and there is no justification for the court refusing to find on proper evidence that he has done so.'

See also Bharat National Bank Ltd. v. Bhagwan Singh, AIR 1935 Lah 347.

6. In my opinion, the position Is as follows : A decree can be adjusted within the meaning of Order 21 Rule 2 of the Code of Civil Procedure, by any lawful contract Such a contract may be either executed or executory. If the liability remains as before, but conditional upon something to be done In future, that is not an adjustment which can be certified under Order 21 Rule 2. The adjustment mustextinguish the liability either in full or in part. If the alleged adjustment creates a new decree which has to be executed, not as an adjustment of the old decree, but creating entirely new rights and liabilities, then again it is not an adjustment within the meaning of Order 21 Rule 2. Order 21 Rule 2, contemplates adjustment of an existing decree whereby the liabilities under the decree are existinguished either in whole or in part. Applying these tests, it appears that the adjustment in the instant case is an adjustment of the existing decree. Instead of the sum of Rs. 3000/-only half of that amount will be payable and upon a date mentioned. It is on the latter point that an argument has been advanced by Mr. Ghose which unfortunately was never agitated in the court below, and no such ground has been taken in the memorandum of appeal. It is argued that the words 'or thereafter' introduced an element of uncertainty and therefore the contract of adjustment is vague and uncertain and violates the provisions of Section 29 of the Indian Contract Act. In other words, it is argued that the court executing the decree cannot record an adjustment because the adjusted decree can never be executed, as it is not known when the time to pay has arrived. Now, this point should have been expressly taken because there are several answers to it. In Mirza Mahomed Jan v. Shaikh Fazl Uddin, AIR 1924 All 557, it has been held by a division bench of the Allahabad High Court, that by a definite time is not meant a fixed period but merely a period which is not unlimited in duration. Section 46 of the Contract Act lays down that where by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time. In Rajammal v. R. Gopalaswami Naidu, : AIR1951Mad767 , an agreement to reconvey land when requested 'at any time whatsoever', was field not be invalid as it must be held that the parties contemplated that the contract should be performed within a reasonable time from the date thereof. In the present case, it is not impossible to lay down a time which would be reasonable for payment The adjustment contemplated that the money would be paid by the defendant and upon payment, the plaintiff would admit that the defendant's wife was the real owner of premises No, 43 Ripon Street, Calcutta. At the time the adjustment agreement was entered into, the plaintiff had attached that property and had made an application for sale. It was surely contemplated that the payment should be made before an order for sale was made. If a sale order was made, and the property sold, there would be no point in making payment and obtaining the admission. Therefore the date of payment can be shown not to have been deferred for an indefinite period Mr. Sinha has pointed out that besides this, the defendant actually tendered the money more than once before the application for adjustment was made. This has been alleged in paragraphs 15 and 17 of the petition, in answer, it is not said that no money was offered at any time but in the affidavit in opposition, it is said that on 3rd January 1963 only Rs. 1000/- was shown to the solicitor of the plaintiff and not Rs. 1500/-. It is admitted that on 8th January the sum of Rs. 1500/- was shown to the solicitor, but not accepted because the date of payment under the agreement had expired. Mr. Ghose argues that 'showing' the money was not tendering. I don't, understand with what other object the money could have been 'shown'. In this instance it is not argued that the solicitor had no authority to accept the tender, but that the date of payment had expired. This is of course is on the footing that the words 'or thereafter' were notin the agreement.

7. But this dispute is without substance, because the defendant, in his application for adjustment offered to pay the whole sum of Rs. 1500/- and has put the whole money into court. There is no difficulty in execution of the decree now. It is clear therefore that the plaintiff ought not to be allowed to raise this point before us, without agitating it in the court below or taking it in his memorandum of appeal.

8. For the reasons stated above, we are of the opinion that the judgment of the court below should be affirmed and the appeal should be dismissed. Regard being had to all the facts and circumstances of the case, there will be no order as to the costs of the appeal.

9. Mr. Ghose prays for a direction that the solicitor for the plaintiff be at liberty to pay over the sum of Rs. 1500/- (Rupees one thousand and five hundred) lying with him to his client which may be appropriated towards the decretal amount. We give that direction.

Arun K. Mukherjea, J.

10. I agree.


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