Punjab-Haryana High Court
Lal Chand vs Tek Chand on 10 May, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.1989 of 2012(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
RSA No.1989 of 2012(O&M)
Date of Decision:-10.05.2012
Lal Chand.
......Appellant.
Versus
Tek Chand.
......Respondent.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH.
Present:- Mr. Tribhuwan Dahiya, Advocate for the appellant.
***
JASWANT SINGH, J.
C.M. No.5537-C of 2012 has been filed seeking condonation of 107 days delay in refiling the present appeal.
For the reasons stated in the application the same is allowed and delay of 107 days in refiling the present appeal is condoned.
C.M. No.5538-C of 2012 has been filed seeking condonation of 07 days delay in filing the appeal.
For the reasons stated in the application the same is allowed and delay of 07 days in filing the present appeal is condoned.
C.M. No.5539-C of 2012 has been filed under Section 148 & 149 CPC for making good the deficiency of court fee and also consider the appeal within limitation.
RSA No.1989 of 2012(O&M) #2#
Allowed as prayed for.
RSA No.1989 of 2012
Defendant/appellant is in second appeal, against the judgment and decree passed by both the courts below whereby the suit filed by the plaintiff for specific performance of agreement to sell has been decreed by the learned Civil Judge(Junior Division), Abohar vide impugned judgment and decree dated 30.09.2009, whereby the alternative relief of recovery was granted to the plaintiff. Dissatisfied against the same, both the parties went in appeal whereby the appeal filed by Tek Chand(plaintiff) was allowed with costs and the suit was decreed in toto whereas the appeal filed by the defendant/appellant was dismissed by learned District Judge, Ferozepur vide impugned judgment and decree dated 02.08.2011.
Facts in brief for proper adjudication of the case are that Tek Chand(plaintiff) filed the present suit through his attorney Ravi Kumar for specific performance of agreement to sell dated 14.09.1999 regarding the suit property for a total sale consideration of Rs.40,000/-. It was alleged that the defendant received Rs.20,000/- by way of earnest money and it was agreed between the parties that the last date for execution of the sale deed would be 10.03.2000. It was further averred by the plaintiff that on 10.03.2000, defendant requested for extension of date for execution of the sale deed and as per the said request, the date was extended from 10.03.2000 to 10.09.2000. This agreement was reduced into writing on the back side of the already existing agreement to sell and thus the date was extended. Again on 10.09.2000, the defendant requested to extend the date to 10.11.2000 and regarding this also the writing was also executed on the RSA No.1989 of 2012(O&M) #3# back side of the agreement. It was further averred by the plaintiff that on 8.11.2000, date was again extended by the defendant from 10.11.2000 to 29.12.2000 and again the writing was prepared to this effect on the back side of the agreement. The plaintiff averred that on 29.12.2000, he was ready to perform his part of the contract, but the defendant took another amount of Rs.10,000/- as earnest money from the plaintiff and handed over the vacant possession of the house of the plaintiff and promised to execute the sale deed on 1.9.2002 and it was accepted by the plaintiff and writing was again executed on the back side of agreement to sell in the presence of witnesses. The plaintiff pleaded that on 28.8.2002 he executed a legal notice through registered post through his counsel and called upon defendant to come present before the office of sub registrar for execution of the sale deed on 2.9.2002, but he refused to accept the same. As 1.9.2002 was a holiday, the plaintiff approached the defendant for execution of the sale deed on 2.9.2002 and also remained present in the office of sub registrar the whole day. However, the defendant did not turn up and, therefore, the necessity arose to file the present suit.
Upon notice, defendant pleaded that he never agreed to sell his property and never received any earnest money of Rs.20,000/- from the plaintiff. It was stated in the written statement that no agreement was ever executed between the parties and, therefore, no question arose of extension of time or receipt of further earnest money of Rs.10,000/-. It was pleaded that the agreement in question is forged and fabricated document and a result of connivance between the plaintiff and the attesting witnesses. It was averred that the possession of the suit property was never handed over RSA No.1989 of 2012(O&M) #4# to the plaintiff by virtue of the agreement in question. It was rather pleaded that defendant had raised a loan of Rs.10,000/- from Ravi Kumar(brother of the plaintiff) which was repaid by him to Ravi Kumar in installments. The entries to this effect were also made in the notebook of the plaintiff which were later on snatched by Ravi Kumar. Even the son of the defendant was kidnapped by Ravi Kumar and his companions. Ravi Kumar along with the plaintiff and other persons had forcibly entered the house of the defendant and inflicted injuries upon the person of the defendant as well as his wife and criminal proceedings are already pending against them. It was thus prayed that the suit be dismissed.
Replication was filed, wherein the entire contents of the plaint were reiterated and denied that of the written statement filed by the defendant.
From the pleadings of the parties issues were framed. During the course of evidence before the trial Court, defendant Lal Chand opted to absent himself from the case and as a result he was proceeded ex-parte. An application was filed by him for setting aside the ex-parte order, but the same was also dismissed. Resultantly, evidence was led by the plaintiff and after appreciating his evidence, learned trial Court decreed the suit of the plaintiff qua the alternative relief only and ordered the recovery of Rs.30,000/- along with proportionate costs and interest. Aggrieved against the same, two appeals were preferred before the learned lower Appellate court, however the learned lower Appellate Court allowed the appeal filed by the plaintiff, whereby his suit was decreed in toto and consequently dismissed the appeal filed by defendant. The defendant before this Court is RSA No.1989 of 2012(O&M) #5# against the appeal filed by him which has been dismissed by the learned lower Appellate Court.
I have heard learned Counsel for the appellant and have gone through the record carefully with his able assistance.
Learned Counsel for the appellant has vehemently argued that the learned lower Appellate court could not have decreed the suit of the plaintiff, in view of Section 20(2) of the Specific Relief Act as the facts and circumstances of the case do not prove the ingredients as required to be met out by the plaintiff/respondent. In support, he has placed reliance upon K. Narindra Vs. Riviera Apartments (P) Ltd. JT 1999(4) SC 428. Learned Counsel for the appellant has further argued that both the courts below have not appreciated the evidence in right perspective as it is proved on record that the agreement in question is a forged and fabricated document and, therefore, the possession was not at all delivered in pursuance to this agreement to sell. Learned Counsel has further argued that the plaintiff has not been able to prove his readiness and willingness to perform his part of the contract because he has not stepped into the witness box and it is only his power of attorney holder, who has stepped into the witness box and, therefore, adverse inference needs to be drawn against him. In support of his contention he has placed reliance upon Janki Vashdeo Bhojwani Vs. Indus Ind Bank Ltd. 2005(1) RCR (Civil) 240. It was thus contended that the present appeal may be allowed and the suit of the plaintiff be dismissed.
After hearing learned Counsel for the appellant, this Court is of the considered view that the first question which requires to be answered is whether the agreement in question is a result of forgery/fabrication or not.
RSA No.1989 of 2012(O&M) #6# To prove the agreement in question, the plaintiff had examined as many as 7 witnesses so as to prove the due execution of the document. He had examined PW-1 Atma Ram, who is the document writer and this witness had proved the execution of the agreement Ex.P-1 and the relevant entry in the register as Ex.P-2. Plaintiff has further examined Naresh Kumar as PW-2 who is the attesting witness of the agreement in question and further PW-6 Pawan Kumar was also examined by the plaintiff who is the attesting witness of the writings whereby dates were extended. Thereafter the plaintiff has also examined PW-7 Ravi Kumar who is his special power of attorney holder and he has also deposed regarding the facts and circumstances of the case in hand. This evidence leave no manner of doubt that the plaintiff has been able to discharge initial onus which was upon him to prove the due execution of the agreement in question. No evidence whatsoever has been led by the defendant in the present case, so as to prove the allegations of fraud or forgery as has been levelled in the written statement. Here, the conduct of the defendant is very important to be pointed out as the defendant had willfully absented himself from the proceedings . A bare perusal of the paper book reveals that the learned lower appellate Court has observed that the defendant had absented himself from the proceedings on 27.02.2004 and the case was adjourned to 9.6.2004 for the remaining ex-parte evidence of the plaintiff. During the intervening period, the defendant moved an application under Order 9 Rule 7 CPC and, therefore, the file was taken up on 20.03.2004. The said application remained pending till 15.03.2005 and reply was submitted by the plaintiff. On 15.03.2005, no body was present on behalf of the defendant and as a RSA No.1989 of 2012(O&M) #7# result thereof, the case was again fixed for recording ex-parte evidence. Since 15.03.2005 till 4.8.2007, the case remained pending for ex-parte evidence of the plaintiff and the same was adjourned for more than 10 occasions. On 4.8.2007, defendant's counsel appeared and filed another application under order 9 Rule 7 CPC read with Section 151 CPC. The said application was dismissed by the learned trial Court, after receipt of reply from the plaintiff on 6.10.2007. Thereafter the case remained pending for ex-parte evidence till 30.09.2009. Despite knowing the fact about the continuation of the proceedings before the learned trial Court, the defendant did not take appropriate legal remedy so as to save his interest in the property which is question. It is apparently clear that the defendant was trying to play hide and seek with the court on more than one occasion and has tried to evade the proceedings or delay them without any reason, in one manner or the other. In such a scenario, this Court has no other option but to take adverse inference against the defendant. Coming back to the proof of the agreement to sell in question, the above mentioned evidence led by the plaintiff coupled with the conduct of the defendant, this Court is of the opinion that the plaintiff has been able to discharge the onus placed upon him for proving the agreement to sell in question.
Now the second question that is required to be determined by this Court is as to whether the plaintiff is ready and willing to perform his part of the contract or not. In the present case, the stand of the defendant was of clear cut denial of the execution of the document in question. However, the defendant, as stated earlier, has miserably failed to prove this plea. In such a scenario, the only question that requires to be seen is that RSA No.1989 of 2012(O&M) #8# whether the plaintiff has fulfilled the basic ingredients as required under Section 16 of the Specific Relief Act or not. It has been held in Santa Singh Vs.Binder Singh & Ors 2006(4) CCC 608 (P&H) that in case the defendant has denied the execution of the agreement, the statement of the plaintiff is sufficient to infer that he was ready and willing to perform his part of the contract. In the case in hand, the plaintiff has not only mentioned regarding his readiness and willingness in the plaint he has in fact mentioned the same by examining his power of attorney holder as PW-7 who in no ambiguous terms has stated that the plaintiff was always ready and willing to perform his part of the contract. Further more, the extension of dates which had taken place and was also reduced into writing on the back side of the agreement to sell coupled with the legal notice sent by him to the defendant, further proves and satisfies this Court that the plaintiff was always ready and willing to perform his part of the contract. A coordinate bench of this court in Jora Singh Vs. Lakhwinder Kumar & Ors. 2011(2) CCC 113 has held that when the defendant has denied the execution of the agreement to sell, it means that the defendant was never ready and willing to perform his part of the contract and it does not lie in his mouth to contend that the plaintiff was not ready and willing to perform his part of the contract. In view of the law laid down above and also in the opinion of this Court, that in a case where the defendant has denied the execution of the agreement to sell, he cannot raise the plea of the plaintiff being ready and willing and it only remains between the court and the plaintiff to determine the question of readiness and willingness, I have no hesitation in dismissing this appeal as the same is without any merit. The judgments that have been RSA No.1989 of 2012(O&M) #9# relied upon by learned Counsel for the appellant are peculiar in their own facts and circumstances and the same are not applicable to the present case for the reason that in the present case, the power of attorney holder has been able to prove the readiness and willingness on the part of the plaintiff and also no evidence whatsoever is coming forth on behalf of the defendant to negate the same. Hence, Janki Vashdeo's case (supra) is not applicable to the present case. K. Narindra's case (supra) is also distinguishable on facts, as in the present case I am inclined in not interfering in the relief granted by the learned lower Appellate court of specific performance in view of the peculiar facts and circumstances of the case.
In view of the above, finding no question of law much less substantial question of law arising for determination, the present second appeal is hereby dismissed.
( JASWANT SINGH ) JUDGE May 10, 2012 Vinay