Counsel Has Professional Duty To Exercise The Right Of Re-Examination : Madras High Court

The Bench of Justice G.R Swaminathan made this observation while hearing a second appeal, after noting that the sense and meaning of the answers given by the appellant in trial must have been brought out by re-examination by the counsel.

The appellant in the second appeal was a bonafide purchaser of the suit schedule property. The first respondent in the second appeal had entered into a sale agreement with the second respondent in the second appeal for purchase of property and also paid an advance of Rs. 10000. The period for concluding the sale was three months. Since the second respondent herein did not come forward to conclude the transaction the first respondent herein had issued notices. To this, the second respondent herein claimed that her signatures were taken on a blank stamp paper and that the sale agreement was a fabricated one. In the meanwhile, the second respondent herein sold the suit schedule property to the appellant herein. Hence, the first respondent herein had filed a suit for specific performance.

The appellant contented that she is a transferee for value who had paid her money in good faith and without notice of the agreement between the parties. The suit agreement is not a registered one and therefore, the appellant cannot be said to have had constructive notice. The appellant also contented that the first appellate court had misconstrued the answers given by the appellant during cross examination.

The point for consideration was whether the appellant was protected under the exception set out in Section 19(b) of the Act.

Section 19 of the Specific Relief Act reads as follows:-

"19.Relief against parties and persons claiming under them by subsequent title. - Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against-

(a)either party thereto
(b)any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract
……"

The court also drew attention to the decision of division bench of Madras High Court in ArunachalaThevar v. Govindarajan Chettiar (1977) in which it was noted that four elements have to be proved to successfully claim the benefit of the exception :

1.That the transfer is for value ;

2.That the consideration has been paid ;

3.That the subsequent transferee has taken the transfer in good faith; and

4.That both the purchase and the payment of the consideration had been made without notice of the prior contract.

Applying these principles in the present situation, the court was satisfied that the appellant was a transferee for value and that she had paid her money in good faith. Yet he suffered decree because the first appellate court has rendered a finding that she did have prior knowledge of the suit agreement. This was because of certain statements made by the appellant during the course of her cross examination where she had given affirmative answers with regard to the earlier agreement between the parties. The court had assumed that the appellant had knowledge of the previous transaction.

The counsel for appellant submitted that affirmative answers given by the appellant/purchaser should have been contextually understood. According to the counsel, the appellant became aware of these facts during the course of trial and that she never admitted having known the aforesaid facts before she paid the sale consideration to the first defendant.

The court held that the onus of proof that was shifted to the first respondent/plaintiff due to denial of knowledge by the appellant, shifted back to the appellant when the plaintiff elicited the answers in the cross examination.

"This is a classic instance of the ambulatory nature of the onus of proof. There is a game involving passing the ball and when the music stops the person holding the ball is declared out. The ambulatory nature of onus of proof plays out likewise. The burden keeps shifting back and forth. In this case, the onus shifted from the appellant to the plaintiff who passed it back to her. If only re-examination had been done and the appellant had clarified that she became aware of the facts relating to the agreement only during trial and had reiterated her lack of knowledge about the prior contract before she paid her money to the first defendant, the burden would have once again shifted to the plaintiff."

The court also relied on the judgement in Chanan Singh v. State of Karyana (1971) in which it was observed that the purpose of re-examination is explaining any part of the cross-examination which is capable of being construed unfavourably to the party for whom he has given evidence in chief.

The court held that the answers of the appellant must have been brought out by re-examination which was not done because of which the first appellant court concluded that the appellant had knowledge of agreement. The court however held that this finding of fact could not be said to be erroneous inference warranting interference in exercise of jurisdiction under Section 100 of Civil Procedure Code.

Case Title: B Amudha v K Rajendran(Died) and Ors

Case No: S.A (MD) 80 of 2010

Citation: 2022 LiveLaw (Mad) 146

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