Punjab-Haryana High Court
Usha Devi & Ors vs Suresh Kumar on 26 July, 2013
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.2879 of 2013(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
RSA No.2879 of 2013(O&M)
Date of Decision:-26.07.2013
Usha Devi & Ors
......Appellants.
Versus
Suresh Kumar
......Respondent.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH
Present:- Mr. Hamid Hussan, Advocate for the appellants.
***
JASWANT SINGH, J.(ORAL)
CM No.7653-C of 2013 Instant application has been filed under Section 149 CPC for making up the deficiency in affixing the court fee.
For the reasons stated in the application, duly supported by affidavit of one of the appellant, the same is allowed. CM No.7654-C of 2013 Instant application has been filed under Section 5 of the Limitation Act seeking condonation of 8 days delay in filing the present appeal.
For the reasons stated in the application, duly supported by affidavit of one of the appellant, the same is allowed and delay of 08 days in filing the present appeal is condoned.
Mahajan Vinay2013.08.03 14:19 I attest to the accuracy and integrity of this document at Chandigarh
RSA No.2879 of 2013(O&M) #2#
CM No.7657-C of 2013
Instant application has been filed under Order 22 Rule 3 of CPC read with Chapter 1 Rule 2 Part-C of the High Court Rules & Orders for impleading the Lrs of Surat Ram son of Jaswant Singh.
It has been mentioned in the application that Surat Ram i.e. appellant no.1, expired on 26.11.2012 and left the legal heirs as mentioned in para no.2 of the application. It is also mentioned that except for legal heirs mentioned in para no.2 there is no other legal heir surviving.
In view of the contents of the application, duly supported by affidavit of Usha Devi widow of Surat Ram, the application is allowed subject to all just exceptions and the Lrs as mentioned in para no.2 of the application are taken on record for the purpose of disposing of the present appeal.
RSA No.2879 of 2013
Lrs of defendant no.1 & defendant no.2 himself are in second appeal against the concurrent findings returned by both the courts below, whereby the suit filed by the respondent Suresh Kumar for specific performance of an agreement to sell has been decreed in toto by the learned Additional Civil Judge(Sr. Divn.), Panchkula vide judgment dated 21.07.2011 and the findings thereof have been affirmed by the learned District Judge, Panchkula vide its judgment and decree dated 3.4.2013.
In brief, facts of the case are that respondent(plaintiff)-Suresh Kumar filed a suit for specific performance of the agreement to sell dated 23.08.2001, on the ground that the appellants herein are the owners of the property measuring 12 kanals and they entered into agreement to sell with the respondent/plaintiff for total sale consideration of Rs.2 lacs. It was Mahajan Vinay 2013.08.03 14:19 I attest to the accuracy and integrity of this document at Chandigarh RSA No.2879 of 2013(O&M) #3# further stated that a sum of Rs.1.5 lacs was paid as earnest money and the last date to execute the sale deed was fixed as 16.08.2006. However, it was stated that the defendants did not come present before the Sub Registrar at Barwala on the appointed date. It was also pleaded that the plaintiff was and is still ready and willing to perform his part of the contract and thus prayer was made for decreeing the suit.
Upon notice, the defendants filed written statement, whereby it was pleaded that they never entered into any agreement to sell and, their signatures were taken by the respondent/plaintiff on blank papers while giving a loan. Thus, it was stated that the agreement to sell is a forged and fabricated document and numerous other reasons were already mentioned in the written statement to support their plea.
From the pleadings of the parties issues were framed. Both sides led evidence and after appreciating their evidence, learned trial Court decreed the suit of the plaintiff and the findings thereof were affirmed by the learned Appellate Court. Hence the present second appeal.
I have heard learned Counsel for the appellants and have gone through the case file carefully with his able assistance.
Learned Counsel for the appellants has argued that the learned Courts below have committed grave illegality in decreeing the suit of the plaintiff/respondent as it is proved on record that in order to secure a loan, the plaintiff/respondent had taken signatures on blank documents which were later on converted into the impugned agreement to sell. It was further argued that in the agreement to sell, it has been mentioned that possession has already been handed over and thus, the said agreement to sell requires registration and since the agreement to sell is an unregistered document, no Mahajan Vinay 2013.08.03 14:19 I attest to the accuracy and integrity of this document at Chandigarh RSA No.2879 of 2013(O&M) #4# reliance can be made upon this document. Hence the suit of the plaintiff cannot be decreed.
After hearing learned Counsel for the appellants and perusing the record carefully, this Court is of the considered view that the present second appeal is devoid of any merit and the same deserves to be dismissed. The learned lower Appellate Court has rightly observed in para no.12 of the judgment that in the present case signatures on the agreement Ex.P-1 are not in dispute and the dispute is whether same have taken on blank papers in order to secure a loan or not. Thus the entire onus shifted upon the defendants/appellants to prove and explain the circumstances under which those signatures were given. However, the said facts have not at all been proved on record, as has been concurrently held by both the courts below. Under such circumstances, this Court is of the opinion that the execution of the agreement to sell is duly proved on record.
As far as the second argument of the learned Counsel for the appellant is concerned, this Court is of the opinion that this controversy is no more res integra and the same has already been settled by a Division Bench of this Court in 2013(2) CCC 188 Ram Kishan & Anr. Vs. Bijender Mann @ Vijender Mann & Ors., whereby it has been held that even an unregistered agreement to sell, in which clause regarding possession having been handed over is mentioned, can form basis of a suit for specific performance and be led into evidence, as proof of the agreement or part performance of the contract. Thus, in view of the above settled position, this Court has no hesitation in holding that the second argument raised by learned Counsel for the appellants is also devoid of any merit and same is hereby rejected.
Mahajan Vinay2013.08.03 14:19 I attest to the accuracy and integrity of this document at Chandigarh
RSA No.2879 of 2013(O&M) #5# It is pertinent to add here that in a suit for specific performance, a court is duty bound to ascertain as to whether the plaintiff was ready and willing to perform his part of contract or not. In the present case, plaintiff has categorically stated in his pleading as well as evidence that he was ready and willing to perform his part of the contract. On the other hand, the defendants have denied the very execution of the agreement itself. Thus, in such like cases, when the plaintiff proved the due and valid execution of the agreement to sell, then it has to be presumed that the plaintiff/prospective buyer was ready and willing to perform his part of contract, because it was in fact the defendant who was not ready and willing to perform his part of the contract, as he had denied the very execution of the agreement to sell itself.
In view of the above, finding no question of law much less substantial question of law arising for determination in the present second appeal, the same is hereby dismissed.
( JASWANT SINGH ) JUDGE July 26, 2013 Vinay Mahajan Vinay 2013.08.03 14:19 I attest to the accuracy and integrity of this document at Chandigarh