Punjab-Haryana High Court
Suresh Singla vs Smt. Phool Pati And Another on 9 May, 2012
Author: K. C. Puri
Bench: K. C. Puri
R.S.A. NO. 2253 OF 2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. NO. 2253 OF 2011 (O&M)
DECIDED ON : 09.05.2012
Suresh Singla
....Appellant
versus
Smt. Phool Pati and another
....Respondents
CORAM : HON'BLE MR. JUSTICE K. C. PURI
Present : Mr. Mrigank Sharma, Advocate.
K. C. PURI, J. (ORAL)
C.M NO. 6239-40-C OF 2011 There is delay of 53 days in filing and 71 days in refiling the appeal. The same stands condoned on the grounds mentioned in the application.
C.Ms stand disposed of.
MAIN CASE Challenge in this appeal is to the judgment and decree dated 16.07.2010 passed by Shri Subhas Mehla, Additional District Judge, Sonepat, vide which appeal preferred by the plaintiff-appellant against the judgment and decree dated 17.01.2007 passed by Shri R. P. Goyal, Additional Civil Judge (Senior Division), Sonepat, was dismissed. R.S.A. NO. 2253 OF 2011 (O&M) -2-
Briefly stated, Suresh Singla filed a suit for specific performance of contract in respect of land measuring 15 kanals 5 marlas detail of which is given in the plaint. It is pleaded that defendant entered into an agreement to sell with the plaintiff on 30.03.2001 for a consideration of Rs.2,50,000/-. A sum of Rs.2,25,000/- was paid to the defendant at the time of execution of Agreement to Sell dated 30.03.2001. The time for execution of sale deed was fixed as 21.09.2001. The plaintiff appeared before the Sub Registrar on that date and sworn affidavit before the Executive Magistrate. The defendant did not turn up. It is pleaded that plaintiff has been and is still ready and willing to perform his part of the contract.
On put to notice, defendant filed written statement taking preliminary objections regarding maintainability; cause of action; concealment of material facts and estoppel. On merits, defendant emphatically denied the execution of agreement to sell. It is pleaded that defendant is simpleton and illiterate lady and does not know the implication of law. She never gave her consent for entering into the agreement, nor she has received any consideration. The alleged Agreement dated 30.03.2001 along with other documents are false and is liable to be set aside. In fact no Agreement was executed. The plaintiff in collusion with one Satbir son of Tek Chand resident of Village Chitana, with whom family members of the defendant are having several disputes, have prepared the false documents. She emphatically R.S.A. NO. 2253 OF 2011 (O&M) -3- denied that any Agreement was executed.
Plaintiff filed replication reiterating the stand taken by him in the suit and converting the averments made in the written statement.
From the pleadings of parties, following issues were framed by the trial Court :-
1. Whether the defendant entered into an agreement of sale with the plaintiff on 30.03.2001 vide Ikrarnama executed by the defendant in favour of the plaintiff on 30.03.2001 to the extent of her share i.e 365/1131 ? OPP
2. Whether the defendant did not execute the sale deed by 21.09.2001 as was settled between the parties ? OPP
3. Whether the suit of the plaintiff is not maintainable ? OPD
4. Whether the plaintiff has no cause of action ?
OPD
5. Whether the plaintiff has not come to the court with clean hands and stopped from filing the present suit by his own act and conduct ? OPD
6. Relief.
The plaintiff in order to prove his case examined Suresh Kumar as PW-1, Ramesh Kumar as PW-2, Satbir as PW-3 R.S.A. NO. 2253 OF 2011 (O&M) -4- and closed the evidence.
On the other hand, defendant herself stepped into the witness box as DW-1.
The learned trial Court, after appraisal of the evidence, decreed the suit of plaintiff for alternative relief of recovery of Rs.2,25,000/- along with interest @ 9 % per annum from 30.03.2001 till date. It was further observed that in case the defendant failed to make the payment of total decretal amount within two months from the date of passing of judgment, the plaintiff will be entitled to simple interest @ 11 % per annum from the date of decree till its realisation.
The plaintiff aggrieved with the judgment and decree dated 17.01.2007, the plaintiff preferred the first appeal for grant of relief of specific performance of agreement. The said appeal was heard by Shri Subhas Mehla, Additional Sessions Judge, Sonepat who dismissed the appeal vide judgment and decree dated 16.07.2010.
Still feeling dissatisfied with the judgment and decree dated 17.01.2007 passed by Shri R. P. Goyal, Additional Civil Judge (Senior Division), Sonepat and judgment and decree dated 16.07.2010 passed by Shri Subhas Mehla, Additional District Judge, Sonepat, the plaintiff has preferred the present appeal claiming relief of specific performance.
The appellant, in para no. 9 of the grounds of appeal, has mentioned that the following substantial questions of law R.S.A. NO. 2253 OF 2011 (O&M) -5- have arisen in the present appeal :-
1. Whether the findings of the learned courts below are beyond the pleadings and the evidence on record in so much as the agreement to sell being executed on account of a loan transaction ?
2. Whether the learned lower courts have misconstrued and misread the evidence on record, namely the testimony of PW1 and PW3 along with DW1 ?
3. Whether once the agreement to sell Ex.P1 has been held to be validly executed, the relief of specific performance by the execution of sale deed could have been declined in the absence of the evidence to the contrary ?
4. Whether the subsequent purchaser of the suit land is entitled to contest the suit and file a separate written statement ?
5. Whether the findings of the learned courts below are beyond the pleadings and the evidence on record ?
Learned counsel for the appellant has submitted that defendant has not pleaded that agreement in question was a loan transaction. So findings of both the Courts below beyond pleadings cannot be looked into. Both the courts below have misconstrued and misread the evidence on file. Both the courts R.S.A. NO. 2253 OF 2011 (O&M) -6- below have given a finding that agreement to sell Exhibit P1 was validly executed. So relief of specific performance is the only adequate relief in case of contract of immovable property. The purchaser of the suit property during the pendency of case, cannot be allowed to file separate written statement. The findings of both the courts below beyond pleadings cannot be looked into. Section 20 of the Specific Relief Act (in short "the Act"), has been misapplied on the facts of present case. The discretion of grant of specific relief is guided by judicial principles which have not been adhere to.
I have considered the submissions made by learned counsel for the parties and have gone through the case file.
There is concurrent finding of fact recorded by both the courts below that intention of the parties was not to execute the agreement to sell but was to secure a loan. That being a finding of fact cannot be interfered in the regular second appeal. No doubt, the defendant has not specifically taken the said plea but she has taken a stand that agreement is the result of fraud committed upon her. Both the courts below have held that since the plaintiff is a money lender and a shopkeeper and as such, he was not interested in purchasing the property but was to secure a loan. The reasoning given by both the courts below in this regard appeals to the common sense. In case the intention of parties was actually to execute agreement in that case after paying 90% of the consideration the sale deed would not have been R.S.A. NO. 2253 OF 2011 (O&M) -7- postponed for such a long period. As per Section 20 of the Act, the Court is not bound to grant the discretionary relief of specific performance. No doubt the discretion in withholding the said relief should not be arbitrary and should be based upon sound principles but on the facts of present case both the Courts below have judiciously exercised the jurisdiction by invoking the provisions of Section 20 of the Act in withholding the relief of specific performance. There is nothing on file that courts below have misread and misinterpreted the testimony of witnesses and documentary evidence. The ground that subsequent purchaser cannot contest the suit on a separate written statement, is not available to the plaintiff-appellant as the plaintiff has not been non-suited on the ground of filing separate written statement by the subsequent purchaser during the pendency of the case. The defendant is an illiterate lady and has taken a stand that she has been duped. No doubt the Courts below held that agreement was executed between the parties but the finding that the said agreement was to secure a loan is based upon the circumstantial evidence and the other evidence available on file, and cannot be interfered.
So, in these circumstances, the substantial questions of law raise above, stand determined against the appellant. Consequently, the appeal is without any merits and the same stands dismissed.
MAY 09, 2012 (K. C. PURI) shalini JUDGE