Himachal Pradesh High Court
Om Parkash vs Saroj Bala on 7 August, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Suit No.67 of 2008.
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Judgment reserved on: 01.08.2019.
Date of decision: 07.08.2019.
Om Parkash .....Plaintiff.
Versus
Saroj Bala .....Defendant.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1. No For the Plaintiff : Mr. Ajay Kumar, Senior Advocate with Mr. Dheeraj K. Vashisht and Ms. Rohini Karol, Advocates.
For the Defendant : Mr. Shalender Kashyap and Mr. Anup Rattan, Advocates.
Tarlok Singh Chauhan, Judge.
The plaintiff has filed the instant suit for specific performance of agreement dated 24.04.2004 vide which the parties agreed to execute the sale deed with respect to the land detailed in the agreement latest by 31.07.2005, with a prayer for issuance of directions to the defendant to execute the sale deed qua the land given in the agreement 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 2 and for decree of permanent prohibitory injunction, restraining the defendant from interfering with the .
possession of the plaintiff over the suit land in any manner and further restraining the defendant from creating any charge and alienating the property in suit.
2. It is averred that defendant entered into an agreement to sell dated 24.04.2004 with the plaintiff whereby defendant agreed to sell land measuring 2-34-27 hectares i.e. 234427/31099 shares i.e. land 3-10-99 in Khewat No.20, Khatauni No.34min, 35min and Khasra Nos.
2445 (0-69-21), 2448 (0-32-48), 2449 (0-55-32), 2446 (0-74-90) 2544 (0-17-52), 2545 (0-61-56), kitas-6, situated in village Bharolian Khurd, Tehsil and District Una, with the plaintiff for a consideration of ₹73,000/- per Kanal. When converted, the suit land comes to 61 Kanals and in this way total consideration was ₹44,53,000/-. The defendant received a sum of ₹26,00,000/- as an earnest money and receipt qua the same was endorsed in the agreement in itself. Thereafter, another sum of ₹3,00,000/- was received by the defendant in the presence of Tilak Raj. At the time of agreement, the possession of the land was handed over to the plaintiff on 24.04.2004 itself and thereafter the plaintiff ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 3 spent a sum of ₹20,00,000/- for levelling the land which prior to this was in the shape of steep hill.
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3. The defendant agreed to execute and register the sale deed latest by 31.07.2005 and in the event of failure to do so, agreed to pay the double amount and in the event of failure of the plaintiff to perform his part of contract, the earnest money as given was agreed to be forfeited. r
4. It is averred that the plaintiff made request to defendant on various intervals to come and execute the sale deed, but defendant failed to do so. The defendant delayed the execution of the sale deed first by pleading that there is stay granted by the Civil Court against the execution of the sale deed in the Mohal in question and when such stay was vacated as per the defendant herself, again request was made to the defendant, who then got registered sale deed of 23 Kanals of land in favour of the plaintiff out of the aforesaid 61 Kanals and at that time the defendant pleaded that the proceedings under Section 47-A of the Indian Stamp Act were going on and as such the sale deed of this land was being made with the assurance that if deed in question is not summoned in the proceedings under Section 47-A, ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 4 then sale deed qua the remaining land would also be executed. Defendant further stated that in the eventuality .
of summoning the sale deed, remaining sale deed would be executed after few days. After execution and registration of sale deed with respect to 23 Kanals of land on 11.02.2005, after receiving consideration of ₹6.70 lacs, the plaintiff further approached the defendant with the request to honour the agreement and execute the sale deed with respect to 38 Kanals of land after receiving balance sale consideration of ₹8,83,000/-.
5. It is averred that insofar as the plaintiff is concerned, he has always been and still ready and willing to perform his part of the contract dated 24.04.2004. On the other hand, the defendant is adopting delaying tactics and evading to perform her part of the agreement.
6. On 02.07.2008, the plaintiff acquired knowledge that the defendant was in hot haste to sell the land in question to somebody-else and as such legal advice was sought and telegraphic notice was issued to the defendant to come and execute the sale deed on 04.07.2008 at 10.00 a.m. and in the event of failure to turn up at 10.00 a.m., the plaintiff would reluctantly be obliged to sue the defendant ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 5 for specific performance. The defendant failed to do so, hence, the suit.
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7. The defendant contested the suit by filing written statement wherein defendant raised number of preliminary objections, one of which was regarding receipt of consideration. In the original written statement, the defendant admitted receipt of ₹26,00,000/- as an earnest money, however, in the amended written statement that was filed without obtaining leave of the Court, it was claimed that the defendant received only ₹2,60,000/-. This constrained the Court on 03.08.2016 to pass the following order:
"The defendant vide order dated 20.7.2012 was permitted to raise all the pleas which he intended to take by way of amendment as reflected in OMP No.59 of 2009. However, while filing amended written statement, it appears that the defendant, without express leave of this court, has introduced certain amendments which were not even prayed for in OMP No.59 of 2009. In the original written statement, defendant had admitted the receipt of ₹26.00 lakhs, whereas in the amended written statement, it is claimed that he received only an amount of ₹2,60,000/-. The amendment, as observed earlier, was conditional, whereby defendant was only allowed to take those pleas which had been clearly ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 6 spelt out in OMP No.59 of 2009. In such circumstances, let defendants explain their conduct .
by moving an application on the next date of hearing.
List on 14th September, 2016."
8. The case was subsequently listed on 26.07.2017, when the Court passed the following order:
"OMP No. 211 of 2017Dismissed as withdrawn.OMP No. 393 of 2016
In the initial written statement instituted to the plaint by the defendant, he contended that he had received a sum of Rs. 26,00,000/-as part consideration towards performance of agreement to sell executed interse him and the plaintiff. However, subsequently, the learned counsel for the defendant, through OMP No. 59 of 2009 sought the leave of the Court to incorporate an amendment in respect thereto comprised in the factum of the defendant actually receiving 2,60,000/- than the amount initially averred in the written statement initially instituted by him to the plaint. Subsequently, the learned counsel for the defendant has made an averment/prayer that the aforesaid amendment as sought with the leave of the Court arising from sheer inadvertence, hence it be deleted from the records. Prayer accepted. Application is allowed.::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 7 CS No. 67 of 2008
Amended written statement is taken on record. For .
arguments, list after three weeks."
9. Now, adverting to the written statement, filed to the amended plaint, preliminary objections regarding suppressio veri and suggestio falsi, estoppel, cause of action, maintainability, suit being time barred, improper valuation etc. have been raised. On merits, the averments made in the plaint to the effect that the defendant had received another sum of ₹3,00,000/- in the presence of Tilak Raj or that the plaintiff had spent ₹20,00,000/- in levelling the land, have been denied. It is further denied that the defendant agreed to execute and register the sale deed latest by 31.07.2005, rather it is claimed that it was mutually agreed to between the parties that the sale deed will be got registered before 31.07.2004. It is also denied that the defendant delayed the execution of the sale deed by pleading that there was stay granted by the learned Civil Court. Rather, it is claimed that the sale deed was registered after repeated requests made by the defendant to the plaintiff and at that time the defendant had impressed upon the plaintiff to get the sale deed registered ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 8 for the entire land of 61 Kanals, but the plaintiff refused to do so as he pleaded that he was not having the requisite .
amount of money. It has been specifically denied that the defendant had pleaded that the proceedings under Section 47-A of the Indian Stamp Act were going on and, therefore, the sale deed of only 23 Kanals be made in a manner, as suggested by the plaintiff. It has been specifically averred that the agreement to sell had become un-executable after 31.07.2004. Lastly, it has been averred that since the plaintiff has in fact failed to perform his part of contract within the time stipulated in the agreement dated 24.04.2004, therefore, he is not entitled to get the agreement enforced through specific performance and prayed that the suit be dismissed with costs.
10. The plaintiff filed replication to the written statement wherein the averments made in the plaint were reiterated and reasserted, whereas, contrary averments made in the written statement were denied.
11. From the pleadings of the parties, this Court on 26.02.2013 framed the following issues:
"1) Whether the plaintiff is entitled to the decree for specific performance of the agreement dated ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 9 24.4.2004 or in the alternative to damages, if so to what extent? OPP.
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2) Whether the plaintiff has improved the suit land, if so, to what extent and to what effect?
OPP.
3) Whether the plaintiff is entitled to the decree of permanent prohibitory injunction, as claimed? OPP.
4) Whether the plaintiff has failed to perform his part of the agreement, if so, to what effect? OPD.
5) Whether the plaintiff has made the interpolation in the agreement by changing the cut of date from 31.7.2004 to 31.7.2005 and thereby played fraud with the defendant? OPD.
6) Whether after the cut of date i.e. 31.7.2004, the agreement became un-executable and the suit also barred by limitation? OPD.
7) Whether the suit is not maintainable in the present form? OPD.
8) Whether the plaintiff is estopped from filing the suit, as alleged? OPD.
9) Relief."
Issues No. 5 and 6.
12. Since both these issues are intrinsically interlinked and interconnected, the same are taken up ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 10 together for consideration and have been answered by common reasoning.
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13. At the outset, it needs to be noticed that the parties are ad idem regarding execution of the agreement dated 24.04.2004. As per the defendant, the cut off date in the agreement was prescribed as 31.07.2004 whereafter the agreement was un-executable and, therefore, the suit is also barred by limitation.
r It is further the case of the defendant that by making interpolation in the agreement by changing the date from 31.07.2004 to 31.07.2005, the plaintiff played fraud and is, therefore, not entitled to the decree of specific performance.
14. Since, the agreement is not in dispute, it would be noticed that as regards there being interpolation in the said agreement, the defendant had not raised any such defence in reply to the notice dated 03.07.2008 that was served upon her. Therefore, in my considered opinion, the defence regarding interpolation is only an after-thought and, thus, this plea is not available to the defendant. Even otherwise, in case, the plea of the defendant is accepted that the cut off date was 31.07.2004, then there was no occasion for the defendant to have executed and got ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 11 registered the sale deed for 23 Kanals of land on 11.02.2005, particularly, when this land itself is admittedly .
a part of the agreement dated 24.04.2004. That apart, the defendant has led no evidence to prove that there is interpolation in the agreement by changing cut off date from 31.07.2004 to 31.07.2005. Once that be so, it cannot be held that the suit which was filed on 04.07.2008 is barred by limitation. r
15. According to the Article 54 of schedule of the Limitation Act, the suit for specific performance is to be filed within three years from the date of accrual of cause of action or within three years from the date of refusal of the defendant to perfect the title of the plaintiff. Since, this Court has already upheld the cut off date to be 31.07.2005, the suit having been filed within three years from the said date cannot be held to be time barred. Accordingly, these issues are answered against the defendant.
Issue No.1.
16. Section 20 of the Specific Relief Act reads thus:
"20. Discretion as to decreeing specific performance.--
(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 12 such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound .
and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance:--
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff;
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation II.-- The question whether the performance of a contract would involve hardship on the defendant within the meaning of ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 13 clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent .
to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party."
17. It is more than settled that the Court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the court is not arbitrary but is "sound and reasonable", to be "guided by judicial principles".
18. Explanation 1 (supra) stipulates that the mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, will not constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 14 clause (b). Moreover, explanation 2 requires that the issue as to whether the performance of a contract involves .
hardship on the defendant has to be determined with reference to the circumstances existing at the time of the contract, except where the hardship has been caused from an act of the plaintiff subsequent to the contract. (Refer:
Jayakantham and others vs. Abaykumar, (2017) 5 SCC
178) r
19. It is well settled that even though the Court is not bound to grant relief of specific performance merely because it is lawful do do so because the Court has to meticulously consider all the facts and circumstances of the case to see that no unfair advantage is obtained by either of the parties. Even though, the relief of specific performance is discretionary, but at the same time, it is not arbitrary. Discretion has to be exercised in accordance with the sound and reasonable judicial principles. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. This may be in a given case, one of the considerations besides many others, to be taken into consideration for refusing the decree of specific ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 15 performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for him .
alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation.
While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other, as also the hardship that may be caused to either of the parties while enforcing or refusing the specific performance. There may be one or other circumstances on which the parties may not have any control. Thus, this is totality of the circumstances that are required to be seen while granting or refusing the decree of specific performance.
20. The specific performance being an equitable relief, balance of equities have also to be struck taking into account all the relevant aspects of the matter, including the lapses which occurred and parties respectively responsible therefor.
21. The plaintiff has specifically pleaded that he was always ready and willing to perform his part of the contract.
While, appearing as PW-1, he again reiterated that he was ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 16 ready and willing to perform his part of the contract by getting the sale deed executed in respect of the remaining .
land on payment of ₹8,83,000/-. Further, stated that he had been approaching the defendant through her attorney to do the needful, but he had been putting off the matter on the plea that cases under Section 47-A of the Indian Stamp Act concerning alleged under payment of stamp duty were pending before the Registrar( Deputy Commissioner), Una.
He further stated that lateron on 02.07.2008, he came to know that the defendant was going to sell the suit land to someone, therefore, he issued notice dated 03.08.2008 to the defendant calling upon her to execute the sale deed on 04.07.2008. On 04.07.2008, even though, the plaintiff remained present in the Office of the Sub Registrar, but the defendant did not turn up.
22. Now, adverting to cross examination, except for a very general suggestion to the plaintiff that the defendant had been asking him to get the sale deed executed, it is the plaintiff, who had not come forward as he was not having money. No other suggestion has been put to the plaintiff by the defendant. In case, the defendant was really serious in contesting the claim of the plaintiff that he had no money ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 17 during currency of the agreement and that is why he never came forward to register the sale deed, the defendant ought .
to have effectively cross examined the plaintiff and in addition thereto should have sought the bank details or anything else which should have gone a long way to establish that the plaintiff had no money and that is why he was not coming forward to execute the sale deed.
23. Once, it is found that the r defendant did not perform her part of the contract, then failure on the part of the plaintiff to demonstrate that he was having sufficient money with him to pay the balance sale consideration is not of much consequence. (See: Beemaneni Maha Lakshmi vs. Gangumalla Appa Rao (since dead) by legal representatives (2019) 6 SCC 233.
24. At this stage, it would also be relevant to make note of the conduct of the parties. The plaintiff in the instant case served upon a telegraphic notice upon the defendant on 3rd July, 2008 on which date he drafted the present suit and thereafter filed the same before this Court on 4th July, 2008, on the pretext that the defendant was intending to sell the suit land to somebody else. This hot haste on the part of the plaintiff appears to be unjustified on ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 18 the first flush, but when considered in its entirety, the plaintiff seems to be justified. Reason for the same is .
obvious.
25. In the initial written statement filed before this Court, the defendant admitted the receipt of ₹26,00,000/- as an earnest money, but denied the receipt of ₹3,00,000/-
which were alleged to have been paid in the presence of Tilak Raj. However, at the time of filing written statement to the amended plaint, the defendant surreptitiously and without the leave of the Court tried to wriggle out of his admission by claiming that he had only received a sum of ₹2,60,000/-.
26. As observed above, grant of a decree for specific performance of contract is a discretionary relief. Though the discretion has to be exercised judiciously and not arbitrarily, yet the conduct of the parties plays an important role. The Courts ordinarily would not grant any relief in favour of the person, who approaches the Court with dirty hands. (See:
Mohammadia Cooperative Building Society Limited vs. Lakshmi Srinivasa Cooperative Building Society Limited and others, (2008) 7 SCC 310.
::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 1927. Since, the plaintiff has proved his readiness and willingness to perform his part of the contract, therefore, in .
the given facts and circumstances, the relief of specific performance cannot be denied to him. Accordingly, the issue is decided in favour of the plaintiff.
Issue No.3.
28. The grant of decree of permanent prohibitory injunction is dependent upon the possession of the parties.
The plaintiff on the basis of the agreement claims to be in possession of the entire land measuring 61 Kanals. The averments to this effect have been found in the plaint as also in the statement of the plaintiff appearing as PW-1.
However, agreement to sell Ex.PW-1/A does not contain any such recital and said fact is admitted by the plaintiff in his cross examination where he states as under:
"The recital with regard to handing over the possession of the suit land was not incorporated in the agreement dated 24.04.2004 Ex. PW-1/A. Volunteered that it was done orally."
29. That apart, it would be noticed that the plaintiff himself categorically admitted that he had not approached ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 20 the revenue authorities to record his possession in the revenue records.
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30. PW-4 Parmod Singh, is one of the attesting witnesses, but he nowhere states that the possession of the suit land had been given to the plaintiff at the time of execution of the agreement. Therefore, it can safely be concluded that save and except being in possession of 23 Kanals of land that was sold to the plaintiff vide Ex.PW1/B dated 11.02.2005, he is not in possession of any other land.
This issue is decided accordingly.
Issue No.2.
31. In order to prove this issue, the plaintiff while appearing as PW-1 stated that he had developed the suit land by spending ₹20,00,000/- and had also installed a tubewell by spending ₹5,50,000/-. But, this statement is not corroborated by any documentary evidence. However, on being cross-examined, the plaintiff stuck to his stand that he has made improvement over the suit land. To corroborate this plea, the plaintiff has examined four witnesses.
32. PW-7, Shashi Pal stated that he was owner of JCB and had been engaged by the plaintiff for doing levelling ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 21 work at Rakkar Colony in Mauza Bharolian Kalan in the year 2004 and had worked for 9-10 months between rainy .
season. This plot was about 40-50 Kanals. In cross-
examination, this witness stated that he did not take written order for execution of the work. This witness further stated that he did not know the khasra number of the area for which he was engaged to execute the work. He claimed to be an income tax payee, but feigned ignorance regarding the payments being reflected in the income tax return. He stated that he did not know how many colonies were built by the plaintiff in Una and denied that he had not executed the work. Inadvertently, this witness is deposing falsely as it was on 11.02.2005 that the plaintiff, for the first time, was put in possession that too over land measuring 23 Kanals.
Therefore, there was no occasion for this witness to have executed the work in the year 2004 and has no knowledge that such work was definitely executed over the land in dispute.
33. PW-8, K.K. Gupta is a retired Executive Engineer, who stated that he had dug a bore-well for the plaintiff in December, 2007 through a firm 'Parwinder Singh' of Ambala Cantt. However, on being cross-examined, he admitted that ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 22 he is not aware of the exact land owned by the plaintiff at Rakkar Colony and in its surroundings. He is also not aware .
of the Khasra number over which the bore-well was dug.
34. PW-9 is Parvinder Singh through whose firm the well is alleged to be bored. He stated that he knew the plaintiff as he had bored his tubewell at village Bharolian Khurd in District Una in December, 2007. He stated that it took about three r months to execute the work and the tubewell was bored at 350 feets. Further, stated that he had charged ₹1500/- per feet along with material. On being cross-examined, he stated that he had executed the work near Rakkar Colony, but was not aware on which khasra number the tubewell had been bored. He claimed to be an income tax payee, but did not produce the income tax records. He admitted that he was not maintaining any records regarding the payments received by him for execution of the work. The testimony of PW-9 does not inspire any confidence as despite being in the business of boring tubewells and claimed to have charged ₹1500/- per feet, it is unimaginable that he would not be maintaining records despite being an income tax payee and when the ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 23 alleged amount is more than ₹5,00,000/- to be precise ₹5,25,000/-.
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35. PW-10, Vinay Kumar Rana, is a JCB owner, who claims to have executed the levelling work of the plaintiff over an area of 40 Kanals belonging to the plaintiff and remaining 40 Kanals land belonging to Usha Devi. This work he claims to have been executed from May, 2004 to July, 2005. He stated that this work was executed r by him at village Bharolian Khurd(Krishna Colony, Una) and claimed to have been paid ₹10.5 lacs for execution of this Court.
However, being cross examined, this witness feigned ignorance about the size of village Bharolian Khurd and further feigned ignorance regarding the number of colonies in village Bharolian Khurd. He was not in a position to state that out of the existing colonies, how many number of colonies had been made by the plaintiff, but stated that Krishna Colony has definitely been constructed by the plaintiff. He admitted that he had not received any written order for the execution of the work from the plaintiff. He too like PW-9 stated that he did not maintain any records for payments received by him for execution of the work. He admitted that he had not brought any documentary records ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 24 pertaining to his business, even though, he claimed to be an income tax payee and further claimed to have maintain the .
records. Like other witnesses of the plaintiff, no credibility can be attached to the testimony of this witness as he appears to be a blatant liar. If this witness had executed the work and had received ₹10.5 lacs as claimed by him, then obviously, there was no reason why he would not be maintaining the records, especially, when he is an income tax assessee and further that he would be hesitating to produce the same before this Court. Since, there is no proof of the plaintiff having carried out any improvement over the suit land, therefore, this issue is decided against the plaintiff.
Issue No.4.
36. As already held above while answering issue No.1 that the plaintiff had performed his part of the contract, the dispute only narrows down whether in addition to ₹26,00,000/-, the plaintiff had paid further a sum of ₹3,00,000/- in presence of Tilak Raj and now only ₹8,83,000/- remains to be paid towards balance consideration.
::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 2537. It would be noticed that there is virtually no proof of the plaintiff having paid a sum of ₹3,00,000/- to the .
defendant in September, 2005 in presence of Tilak Raj. The plaintiff while appearing as PW-1 has specifically stated that he had paid a sum of ₹3,00,000/- in cash to the defendant in September, 2005, in presence of Tilak Raj. The defendant has not chosen to cross- examine the plaintiff on this point.
38. In addition thereto, it would be noticed that the plaintiff has in fact examined Tilak Raj as PW-5, who categorically stated that the plaintiff in September, 2005 had paid a sum of Rs.3,00,000/- to late Kabul Singh at his (plaintiff's) residence. Surprisingly, even this statement has gone unrebutted as the defendant chosen not to cross-
examine this witness on this aspect of the case.
39. As regards the defendant, she virtually led no evidence to even remotely show as to which part of the agreement has not been performed by the plaintiff. Rather the defendant has failed to appear in the witness box constraining this Court to draw an adverse inference against her.
40. It is more than settled that withholding a party by the plaintiff or the defendant from the witness box and ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 26 thereby denying the opposite party an opportunity for cross-
examination, results in an adverse inference being drawn .
against the said party. Having failed to appear in the witness box, obviously, an adverse inference has to be drawn against the defendant as it is more than settled that withholding of a party/defendant himself/herself from witness box thereby denying the plaintiff an opportunity for cross examination results in an adverse inference to be drawn against the defendant. (See: Ishwar Bhai C.Patel alias Bachu Bhai Patel vs. Harihar Behera and another (1999) 3 SCC 457). The issue is accordingly decided against the defendant.
Issue No. 7.
41. The defendant has failed to point out any defect in the form of suit and to show how the same is not maintainable. Therefore, this issue is decided against the defendant.
Issue No.8.
42. The defendant has failed to show how the plaintiff is estopped from filing the suit. That apart, once the agreement is admitted and the suit is held to be within time, then obviously, the plaintiff cannot be held to be ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP 27 estopped from filing the present suit. The issue is accordingly decided against the defendant.
.
Relief.
43. In view of the issue-wise findings above, the suit of the plaintiff is partly decreed. A decree for specific performance of the agreement to sell dated 24.04.2004 with respect to 38 Kanals of land measuring 2-34-27 hectares i.e. 234427/31099 shares i.e. land 3-10-99 in Khewat No.20, Khatauni No.34min, 35min and Khasra No. 2445 (0-69-21), 2448 (0-32-48), 2449 (0-55-32), 2446 (0-74-90) 2544 (0-17-
52), 2545 (0-61-56), kitas-6, situated in village Bharolian Khurd, Tehsil and District Una, with the plaintiff for a consideration of ₹73,000/- per Kanal, on payment of ₹8,83,000/- is passed in favour of the plaintiff and against the defendant, by directing the defendant to specifically perform the said part of the agreement to sell. The remaining claims of the plaintiff are dismissed. The parties are left to bear their own costs. Pending application(s), if any, also stand disposed of. Decree sheet be prepared accordingly.
7th August, 2019. (Tarlok Singh Chauhan) (krt) Judge ::: Downloaded on - 29/09/2019 01:53:53 :::HCHP