Punjab-Haryana High Court
Sawaran Singh And Anr. vs Pawan Kumar on 11 December, 1998
Equivalent citations: (1999)121PLR372
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. Reference to the basic facts would be necessary to determine the merit of the rival contentions raised on behalf of the parties in this regular second appeal.
2. Pawan Kumar, respondent herein, instituted a suit for specific performance of the agreement dated 4.6.1985 and for possession of the suit property. He contended that the agreement to sell was executed for a total consideration of Rs. 40,503/- at the rate of Rs. 15,000/- per killa and a sum of Rs. 30,000/- was paid as earnest money. Subsequently, a sum of Rs. 5,000/- was paid on 3.6.1986 and time for execution of the sale deed was extended to 3.6.1987 and thereafter again extended to 2.6.1988. Inspite of receipt of the aforestated amount, Arjan Singh did not turn up for execution of the sale deed, inspite of the notice, resulting in filing of the present suit and specific performance was prayed for with damages. The suit was contested by the defendants. He denied the execution of agreement dated 4.6.1985 and claimed that the agreement was the result of a fraud. The defendant contended that he used to sell the crops to the plaintiff and he stopped selling the crops and as a grudge on this account, the plaintiff has forged the agreement to sell. One agreement to sell was got executed from the wife of the plaintiff, for .which he has instituted the suit. Based on the pleadings of the parties aforestated, the learned trial court framed the following four is- sues:-
"1) Whether the defendant executed an agreement to sell dated 4.6.1985 in favour of the plaintiff and received Rs. 30,000/- as earnest money and also executed endorsement dated 3.6.1986 and received Rs. 5,000/- as supplementary earnest money and was executed another endorsement on 2.6.1997 as alleged? OPP.
2) Whether the plaintiff was/is ready and willing to perform his part of the contract?
3) Whether the plaintiff is entitled to specific performance of the contract?
4) Relief."
3. The learned trial court answered all the issues against the defendant and in favour of the plaintiff. Consequently, passed the decree for specific performance of the agreement and for possession and directed execution of the sale deed upon deposit of the balance sale consideration, which is stated to be Rs. 5,503/-. The judgment and decree of the learned trial court dated 22.7.1993 was assailed in regular first appeal, of course unsuccessfully. The first appeal preferred by the present appellant was dismissed by the learned District Judge, Kapurthala, vide judgment dated 3.1.1998, giving rise to the filing of the present regular second appeal. While impugning the judgment of the learned first appellate court, the learned counsel for the appellant contended that the time was the essence of the contract and the respondent herein having failed to adhere to the time schedule was not entitled to the relief of specific performance. Secondly, he argued that the learned courts below have erred in appreciating the evidence and disbelieving the version put forward by the present appellant.
4. In order to substantiate his first submission, the learned counsel for the appellant has relied upon the judgment of Hon'ble Supreme Court of India in the case of K.S. Vidyanadam v. Vairavan, 1997(1) All India Land Laws Reporter 459. While placing reliance upon this judgment of the Apex Court, the learned counsel contended that keeping in view the provisions of Section 55 of the Contract Act the obligation under the agreement was not discharged by the respondent and there is considerable lapse on the part of the respondent. There has been rise in the prices and as such relief of specific performance out not to have been granted to the respondent. On the other hand, it is contended by the learned counsel for the respondent that there was no delay on the part of the respondent. The respondent had acted with due diligence and taken recourse to the legal remedy. The mere rise in the price, even if there was, would be of no consequence and the respondent has rightly been granted the relief of specific performance. Learned Counsel for the respondent relies upon the judgment of this court in the case titled as S.K. Nayyar v. C.K. Anand and Anr., (1998-1)118 P.L.R. 694.
5. Once the learned courts below have come to a concurrent finding of facts that the agreement dated 4.6.1985 was not result of a fraud and in fact had been executed between the parties and proved in accordance with law, in that event hardly there is a scope for believing the version put forward by the appellant. The respondent has specifically pleaded and averred in evidence that the agreement to sell was executed on 4.6.1985 and the sale deed was to be executed on or before 3.6.1986. Additional sum of Rs. 5,000/- was paid on 3.6.1986, which was the date fixed for execution of the sale deed and the time was extended for execution of the sale deed till 3.6.1987. Even in this regard, a receipt was duly executed being Ex.P2/A. Thus, agreement to sell, Ex.P.2 and the period specified therein stood extended by Ex.P.2/A. This period was further extended by Ex.P.2/B till 2.6.1988. In other words, the parties never treated as time to be the essence of the contract and the period was extended at the convenience of the parties even on the last date specified in the said agreement. The conduct of the parties seen in the light of the documents above-referred least indicates a definite intention on the part of the parties to treat the time to be essence of the contract. The lack of definite intention and unequivocal agreement to abide by the time specified in the agreement certainly remains much below the required standard of believing and proving in the present case. This has to be seen in the light of the fact that out of total sale consideration of Rs. 40,503/-, a sum of Rs. 30,000/- was received on the date of agreement while additional sum of Rs. 5,000/- was received on 3.6.1986. Thus, substantial part of the total consideration agreed was paid during the operation of the agreement. Furthermore, the respondent had issued a notice Ex. PA on 3.6.1988 itself reminding the appellant that the respondent was ready and willing to perform his part of the obligation arising from the contract but it was the appellant, who was trying to avoid completion to the terms of the agreement. Ex.PA was received but remained unreplied by the appellant. The respondent further specifically led evidence to show that he waited at the Sub-Registrar's Office, Kapurthala from 9.00 a.m. to 2.00 p.m. on 2.6.1988. This was also so stated in the notice. The plaintiff had examined himself, PW-2 and PW-3 to prove the agreement and the nothings Ex.P2/A and Ex.P2/B and the notice Ex.PA. This documentary evidence seen in the background of the statement made and the pleadings of the parties can only lead to one conclusion that the judgment of the learned Courts below are not liable to be interfered with either on the finding of facts or on in any well settled principle of law. The learned counsel for the appellant has not been able to show as to how the judgments or the findings arrived at by the learned courts below could be stated to be perverse. The appellant hardly led any documentary or oral evidence to substantiate the vaguely pleaded facts. It is a settled principle of law that the facts in relation to fraud or forgery should be specifically pleaded and proved. In the present case, no specific fact has been averred nor any evidence was led to prove the plea of fraud. As is clear from the aforestated issues, the appellant did not even press for an issue on the ground of fraud, though issue No. 2 was re-framed by the learned trial court vide its order dated 20.7.1993 with regard to incorporation of Ex.P2/A and extension of date on 2.6.1987. In a suit for specific performance, the conduct of the parties immediately after presenting the suit and even during the pendency of the suit is a relevant consideration which the court ought to take into consideration for exercising its discretion within the scope of Section 20 of the Specific Relief Act. As already discussed above, the conduct of the parties shows that the time was not treated as essence of the contract but even if so treated, no breach thereof can be attributed at least to the respondent herein.
6. During the course of hearing, the learned counsel for the parties produced copies of the record and even in the memorandum of appeal filed before the learned first appellate court, no ground was taken to argue that the time was the essence of the contract and the respondent therein was not entitled to the relief. In the memorandum of appeal, it was vaguely stated that Ex.P2 is false and manipulated and no other findings arrived at by the learned courts below were specifically challenged.
7. The documentary and ocular evidence produced by the respondent could certainly not be either rebutted or demolished by the lone statement of the defendant while appearing in the witness box, uncorroborated by any document.
8. In these circumstances, this Court would not be justified in interfering in the concurrent finding of facts arrived at by the learned courts below in a regular second appeal. The scope of interference in a regular second appeal by this Court is a very limited and narrow one. The present case certainly does not fall in that class of cases which would justify the interference in the findings which are neither perverse nor illogical. In this regard, reference can be made to the case titled as Rajinder Kumar v. Jamna Das Kotwal, J.T. 1990(3) S.C.197.
9. For the reasons aforestated, I find no merit in this regular second appeal and that same is dismissed herewith. No order as to costs.