Swaroopa Rani Vs. M. Hari Narayana @ Hari Babu  INSC 356 (4 March 2008)
S.B. Sinha & V.S. Sirpurkar CIVIL APPEAL NO. 1734 OF 2008 [Arising out of SLP (Civil) No. 15670 of 2006]
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.
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
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
"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."
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
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
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.
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
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
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 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
"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
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
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.
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.