Shibbu and Another vs Bahadur Singh

Mohammad Rafiq, J.—This appeal has been preferred by defendant Shibbu together with his brother Ramdayal, who was not party in the suit. Shibbu was originally impleaded as defendant in the suit filed by plaintiff-respondent Bahadur Singh. Bahadur Singh filed a suit for specific performance before the Additional District Judge (Fast Track) No. 3, Dholpur on the basis of agreement to sale dt. 29.12.2001 executed by Shibbu in favour of the plaintiff with respect to the land bearing Khasra No. 1475 measuring 1 bigha & 15 biswa, Khasra No. 1476 measuring 1 bigha & 15 biswa & Khasra No. 1479 measuring 2 bigha & 8 biswa. The trial Court issued notices of the suit. Defendant-appellant appeared in response to the notice and engaged Shri Malkhan Singh Tyagi, Advocate on his behalf, who did not choose to file written-statement. Therefore his right to file written-statement was closed and the suit was decreed vide judgment & decree dt. 10/02/2004. In the meantime, defendant-Shibbu executed a release-deed in favour of his brother Ramdayal, who is also one of the appellant before this Court and Ramdayal has filed an application seeking leave of the Court to file appeal under Sec. 96 CPC as co-appellant. This appeal against the judgment & decree dt. 10/02/2004 has been filed belatedly on 01/07/2009 with huge delay of 1877 days. In the appeal as well as in the application seeking condonation of delay, appellant has set up a plea that plaintiff had impersonating himself as Shibbu, engaged Shri Malkhan Singh Tyagi, Advocate. After the suit was ordered to proceed ex-parte, an application was filed on behalf of Shibbu under Order 9 Rule 7 CPC before the trial Court on 03/01/2004 for setting aside the ex-parte proceedings drawn on 16/12/2003. On the day of filing of the aforesaid application itself on 03/01/2004, the ex-parte proceedings drawn on 16/12/2003 were set-aside.

This Court issued notices of both the applications i.e. application filed under Sec. 5 of the Limitation Act as well as application under Sec. 96 CPC seeking leave of the Court to file appeal on behalf of Ramdayal as well. Learned counsel for the plaintiff-respondent have put appearance and contested the matter by filing reply to both the applications.

When the matter was listed before this Court on 03/07/2012, this Court taking note of serious allegations against the plaintiff-respondent as well as Shri Malkhan Singh Tyagi, Advocate, who appeared on behalf of the defendant-appellant (Shibbu), issued notice to Shri Malkhan Singh Tyagi, Advocate Dholpur, who was required to remain present before this Court, asking him to file his affidavit with regard to allegations of fraud played upon the Court especially, those contained in para 5 of the additional affidavit filed by appellant-Shibbu. Said Shri Malkhan Singh Tyagi, Advocate appeared before this Court on 31/07/2012 and his presence for future was dispensed with requiring him to file his reply to the notice along with affidavit. When the matter came up before the Court on 24/01/2013, further time was granted him to file reply or affidavit with the observation that since he failed to file reply or affidavit, an adverse inference is required to be drawn against him. Said Shri Malkhan Singh Tyagi, Advocate thereafter filed affidavit denying the allegations. This Court found certain inconsistencies between what he contended in the affidavit and the order-sheets drawn by the trial Court. This Court thought it order to make an inquiry in the scope of Section 340 Cr.P.C. by obtaining his affidavit as also the affidavit of Shri Malkhan Singh Tyagi, Advocate sending his thumb impression to the FSL along with vakalatnama filed before the trial Court on his behalf.

He was required to file further affidavit. This Court also directed appellant-Shibbu to remain present before this Court on 22/02/2013 for obtaining his fresh thumb mark so that his thumb impression appended on vakalatnama filed on his behalf by Shri Malkhan Singh Tyagi, Advocate before the trial Court may be sent to the forensic science laboratory for the purpose of comparison. Appellant-Shibbu appeared before the Court on 04/04/2013. Deputy Registrar (Judicial) of this Court was directed to obtain the thumb impression/mark of appellant-Shibbu in presence of counsel for both the parties. After obtaining the thumb impression/mark of Shibbu, same were sent to the FSL for comparison thereof with the vakalatnama filed by Shri Malkhan Singh Tyagi, Advocate before the trial Court. The expert report of the FSL has been received, who has opined, as under:--

Disputed thumb print marked Q alleged to be of Shibbu has been examined & compared as desired. Disputed thumb print marked Q alleged to be of Shibbu is similar & identical with his own specimen left thumb print marked LT. Following identical ridge characteristics are present at the same relative positions in both the prints:--

Ridge end towards left is the starting point.

Ridge end towards left on north east of point No. 1.

Bifurcation towards right on north east of point N. 2.

Ridge end towards left on north east of point No. 3.

Ridge end towards left on north of point No. 4 with 2 ridges intervening.

Bifurcation towards right on north east of point No. 5 with 2 ridges intervening.

Ridge end towards left on west of point No. 5.

Bifurcation towards right on north west of point No. 7 with 3 ridges intervening.

Ridge and towards left on sought of point No. 8 with 2 ridges intervening.

Ridge bearing point No. 8 ends here.

As per the opinion expressed by the hand writing expert, the disputed thumb print on the vakalatnama filed before the trial Court and those obtained before this Court are same and identical. In the opinion of this Court, appellant-Shibbu has not come before this Court with clean hands and with a view to getting the enormous delay of 1877 days condoned, has taken a palpably false plea, which tantamount to misleading this Court

Deputy Registrar (Judicial) of this Court is therefore directed to send a written complaint as per provisions of Section 195 of the Code of Criminal Procedure, 1973 to the competent Court having jurisdiction in the matter for proceeding against appellant-Shibbu under Sec. 193 IPC or any other offence that may be made out.

Coming now to the question of delay, in view of the narrated facts, explanation is not only unsatisfactory but also found to be palpably false with the intention of playing fraud upon the Court. Delay therefore cannot be condoned. Application No. 16611 dt. 02/07/2009 seeking condonation of delay filed under Sec. 5 of the Limitation Act, 1963 is therefore dismissed. Consequently, the appeal of appellant No. 1-Shibbu is also dismissed.

Coming now to Application No. 17005 dt. 04/07/2009 filed under Sec. 96 CPC seeking leave of the Court to file appeal joining Ramdayal as co-appellant, suffice it to say that in the facts of the case when appellant No. 2-Ramdayal joined his brother Shibbu to avoid execution of the judgment & decree of the trial Court dt. 10/02/2004 thereby frustrate agreement to sale dt. 29/12/2001 in context of the fact that the decree was passed on 10/02/2004 and as per his own showing the release-deed was executed in his favour by his brother Shibbu on 01.11.2003, there was no occasion for appellant Ramdayal to wait for as many as five years to file the appeal. In the facts of the case, when Ramdayal has joined hands with his brother Shibbu only to frustrate the decree executed in favour of the plaintiff, which decree has already attained its finality long ago. Therefore, the premise on which, the present application has been filed seeking leave to file appeal, cannot be accepted as bona fide and genuine. Application No. 17005 dt. 04.07.2009 filed under Sec. 96 CPC is therefore dismissed. Consequently, the appeal in regard to applicant-Ramdayal is also dismissed.

The notice issued to Shri Malkhan Singh Tyagi, Advocate is discharged. The appeal of appellant No. 1-Shibbu is dismissed on cost of Rs. 10,000/-, which he shall pay to the plaintiff-respondent as well as Shri Malkhan Singh Tyagi, Advocate in equal proportion within one month, failing which, the plaintiff-respondent shall be entitled to execute this order to the executing Court in the present case.