Punjab-Haryana High Court
Bhim Sen And Ors. vs Pawan Kumar on 5 October, 2007
Equivalent citations: (2008)149PLR82
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This is a defendants' Regular Second appeal against the judgments and decree, passed by both the courts below, whereby suit of the plaintiff for specific performance of the agreement to sell dated 15.4.1989 has been decreed.
2. In the present case, on 13.7.1993, plaintiff (respondent) Bhim Sen filed the aforesaid suit alleging that Shri Banarsi Dass, the predecessor of the defendants, entered into an agreement of sale on 15.4.1989 with regard to 1 Kanal 3 Marias of land situated in Dasuya, for a consideration of Rs. 69,000/-. The said land was in possession of the plaintiff as a tenant. At the time of the execution of the agreement, an amount of Rs. 60,000/-was paid to said Banarsi Dass as earnest money and the sale deed was to be executed on or before 15.6.1992. In the agreement, it was also written that the plaintiff will remain in possession of the suit land as prospective vendee. Banarsi Dass died before the date fixed for execution of the sale deed, leaving the defendants as his successors. It is the case of the plaintiff that he approached the defendants and requested them to execute the sale deed in pursuance of the said agreement, after receiving the balance sale consideration, but when they did not execute the sale deed, the instant suit was filed.
3. The defendants contested the suit by filing written statement. They did not dispute that the suit land was owned by Banarsi Dass and they are his legal heirs. It is also not disputed that the plaintiff was the tenant on the suit land. However, it was asserted that they have no knowledge of the alleged agreement of sale in favour of the plaintiff. All the other allegations were simply denied with a prayer to dismiss the suit with costs.
4. In order to prove his case, the plaintiff examined himself as PW.3 and also produced Ashwani Kumar (PW. 1) and Surinder Kumar (PW.2), the attesting witness and scribe of the agreement to sell (Ex.Pl). On the other hand, in spite of several opportunities granted to the defendants, they did not lead any evidence.
5. The trial Judge, after hearing counsel for the parties and taking into consideration the evidence led by me plaintiff, decreed the suit, after recording the finding that the plaintiff has duly proved the execution of-the agreement to sell and the fact that he was always ready and willing to perform his part of the agreement.
6. The appeal filed by the defendants against the said judgment and decree was also dismissed by the first appellate court. Before the first appellate court, the defendants also filed two separate applications, one for amendment of the written statement and the other for permitting them to lead evidence, but both the applications were dismissed. Hence, this Regular Second Appeal.
7. I have heard counsel for the parties and have gone through the impugned judgments and decree, passed by both the courts below, as well as the order dated 25.7.2002, passed by the first appellate court, dismissing the application of the defendants for amendment of the written statement.
8. Learned Counsel for the appellants (defendants) has argued that the alleged agreement to sell dated 15.4.1989 is a forged and fabricated document and the same was executed by playing fraud upon the father of the defendants, at the behest of Shri Madan Mohan, Advocate, counsel for the plaintiff, who was at one point of time also representing the father of the defendants in a suit, which was decided in the year 1983. Learned Counsel submits that though in the written statement no such plea was taken, but during the pendency of the first appeal, an application for amendment of the written statement was filed by the defendants, which has been wrongly dismissed by the first appellate court.
9. On the other hand, learned Counsel for the respondent (plaintiff), while referring to para 7 of the judgment of the first appellate court, submits that in the present case, the defendants appeared before the trial court on 24.9.1993 and thereafter, the case was adjourned on their request on different dates for 2.1/2 years for filing written statement. Those adjournments were sought on the ground that there is likelihood of compromise between the parties and on some dates, it was stated that as per the compromise, the defendants were to execute the sale deed, but due to some technical flaw, the same could not be executed. Learned Counsel further submits that after 2.1/2 years, the written statement was filed, wherein no plea with regard to the aforesaid fraud was taken. He further submits that even at the time of cross-examination of the witnesses of the plaintiff, the defendant did not ask any question with regard to the alleged fraud. Learned Counsel contends that before the first appellate court, with intention to just delay the matter and to get an opportunity to lead evidence, the appellants filed application seeking amendment of the written statement, for taking the plea of fraud, which has been rightly dismissed. A perusal of the application shows that the appellants did not disclose as to when they came to know about the alleged fraud. The first appellate court, while taking into consideration all the facts and circumstances of the case, came to the conclusion that the said application was filed by the appellants to get the entire matter re-opened, because in this case, in spite of several opportunities granted, they did not lead any evidence. It has been held that merely because the counsel for the plaintiff at one point of time was the Advocate of father of the defendants does not itself establish that a fraud was played and the agreement to sell was forged with his connivance.
10. After hearing the arguments of the learned Counsel for the parties, 1 do not find any illegality in the order passed by the first appellate court rejecting the prayer of the appellants for amendment of the written statement at the belated stage, in the aforesaid facts and circumstances. In this case, the written statement was filed after 2.1/2 years and on several occasions, the adjournment was sought for filing the written statement. The appellants (defendants) were aware of each and every fact, but at that time, no such plea was taken by them and subsequently, at the appellate stage, the plea of alleged fraud was taken with object to delay the matter. It has not been mentioned in the application when the appellant came to know about the alleged fraud. The first appellate court rightly came to the conclusion that the application was filed to get the matter reopened, so that the appellant can lead evidence. I do not find any illegally in that order.
11. Secondly, the learned Counsel for the appellants submitted that evidence of the appellants (defendants) was wrongly closed by the trial court and the first appellate court has also wrongly dismissed their application for permission to lead evidence in the case. After hearing counsel for the parties, I do not find any merit in the submission made by learned Counsel for the appellants. Undisputed, the appellants (defendants) have consumed more than two years in filing the written statement before the trial court. In this case, after framing of issues, the plaintiff closed his evidence in September, 1997 and thereafter, for one year, several opportunities were granted to the defendants for their evidence, but in spite of availing several opportunities, they failed to lead any evidence and ultimately, their evidence was closed by order of the court on 28.10.1998. Even thereafter, the case was adjourned and ultimately decided on 26.11.1998. During that time also, the defendants neither challenged the order of the closing of their evidence by order of the Court nor filed application for leading additional evidence. In the facts and circumstances, in my opinion, the defendants were given sufficient opportunities to defend their case, but they failed to lead any evidence. Therefore, the trial court did not commit any illegality, while deciding the case on the basis of evidence of the plaintiff, available on the record.
12. Thirdly, learned Counsel for the appellants (defendants) argued that the agreement to sell dated 15.4.1989 was unregistered document, therefore, the same could not have been taken into consideration. Learned Counsel submits that the said document was actually a conveyance deed, therefore, it should have been registered under Section 17(2) of the Indian Registration Act. Since the said document was unregistered, the same has no evidentiary value. In support of his contention, learned Counsel relied upon the decision of the Privy Council in Dayal Singh v. Indar Singh A.I.R. 1926 Privy Council 94. I do not find any substance in this argument. It is well settled that an agreement to sell does not require any registration, because it is not deed of conveyance, as argued by counsel for the appellants. Merely because the plaintiff was already in possession of the suit land and as tenant, it cannot be said that this document was a conveyance deed. The judgment cited by learned Counsel for the appellants is not applicable to the facts and circumstances of the instant case.
13. No other point has been argued by learned Counsel for the appellants.
No substantial question of law is involved in the appeal.
Dismissed.