Punjab-Haryana High Court
Bhupinder Singh And Ors vs Balwant Kaur And Ors on 28 August, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.692 of 2012(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.692 of 2012(O&M)
Date of decision: 28.08.2014
Bhupinder Singh & ors. ......Appellant(s)
Versus
Balwant Kaur & ors. ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to see
judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
* * *
Present: Mr. B.R. Mahajan, Sr. Advocate with Mr. R.S.Atwal, Advocate
and Ms. Ganganpreet, Advocate for the appellant(s).
Mr. Sharan Sethi, Advocate for the respondents.
Rakesh Kumar Garg, J.
This is plaintiffs' second appeal challenging the judgment and decree of the trial Court dated 1.9.2007 whereby their suit for possession of the suit property by way of specific performance of agreement to sell in question was dismissed. Further challenge has been laid to the judgment and decree of the Lower Appellate Court dated 3.12.2011 dismissing the appeal of the plaintiffs against the aforesaid judgment and decree of the trial Court.
Baldev Kaur-plaintiff (predecessor-in-interest of the appellants) filed the instant suit for possession of House No. 560, Sector 18-B, Chandigarh (hereinafter referred to as 'the suit property') by way of specific performance of agreement dated 2.12.1989 (actually executed on 6.12.1989 and wrongly typed as 2.12.1989 (hereinafter referred to as 'the PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 2 agreement') entered into between her and defendant-Teja Singh (predecessor-in-interest of the respondents) for the sale of the suit property.
As per the averments, Smt. Baldev Kaur entered into an agreement dated 2.12.1989 with defendant-Teja Singh (now represented by his LRs i.e respondents) for a sum of ` 13,25,000/-. It is the case of the appellants that said agreement was entered into between Baldev Kaur at Bangkok and the defendant had agreed to come to India for execution of the sale deed in the month of May/June, 1990. It is the further case of the appellants that plaintiff-Baldev Kaur always remained ready and willing to perform her part of the agreement for execution of the sale deed but defendant-Teja Singh did not come from Bangkok to Chandigarh to perform his part of the agreement. It is the further case of the appellants that defendant-Teja Singh had written letters dated 24.4.1990, 17.5.1990 and 19.3.1991 expressing his intention to sell the suit property to someone else at a higher price. He always put off the matter of the execution of the sale deed on one pretext or the other as and when he was called to execute the sale deed. He was sent a telegram as well as the registered AD notice. The defendant-respondent was also approached by the plaintiff through one Sardara Singh who vide letter dated 11.7.1992 informed the plaintiff about the intention of the defendant-Teja Singh to sell the suit property to someone else at a higher price and thus, the plaintiff-appellant again requested the defendant-respondent vide telegram dated 12.8.1992 to reach the office of Sub Registrar on 26.8.1992 for execution of the sale deed. The plaintiff waited for the defendant-Teja Singh along with the necessary expenses and the balance sale consideration in the office of Sub Registrar but he did not come on that day. Thus, in these PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 3 circumstances necessity arose to file the instant suit.
Upon notice, the defendants appeared and filed written statement raising various preliminary objections. It was alleged that Teja Singh never executed any such agreement with Baldev Kaur and it was a forged and fabricated document. All other facts were also denied. It was further denied that Teja Singh had sent letters on 24.4.1990, 17.5.1990 and 19.2.1991 and if there were any such letters, they were the result of forgery and thus, the suit was liable to be dismissed.
At this stage, it is also relevant to mention that the instant suit was filed on 17.10.1992. The parties appeared and from the pleadings of the parties, following issues were framed on 1.12.1994.
"1. Whether Teja Singh executed the agreement dated 2.12.1989 in favour of the plaintiff? OPP.
2. Whether the plaintiff is entitled to possession of House no.560, Sector 18-B, Chandigarh by way of specific performance of agreement dated 2.12.1989? OPP
3. Whether the document dated 2.12.1989 is a forged document? OPD
4. Whether the suit is bad for non-joinder of necessary parties? OPD
5. Whether the suit is within limitation? OPD
6. Relief."
However, the defendants were proceeded against ex parte on 19.12.1996. Thereafter, ex parte evidence was led and the suit was decreed ex parte vide judgment and decree dated 16.1.1997. The defendants moved an application on 17.2.1997 for setting aside the PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 4 aforesaid ex parte judgment and decree dated 16.1.1997 and the same was set aside vide order dated 27.5.1998 of the then SubJudge,1st Class, Chandigarh.
The appellants moved an application dated 1.4.1999 for amendment in the plaint seeking to incorporate the following paragraph:
"4-A: That the agreement between the parties in fact was entered into on 6.12.1989. However due to typographical mistake committed by the staff of the defendant the date has been mentioned in the agreement as 2.12.1989. This mistake does not in any manner affect the rights of the plaintiffs which may non-suit them from the relief claimed in the present suit."
The said application was declined vide order dated 10.5.2001 by the trial Court. However, vide order dated 8.8.2003 passed in CR No.5188 of 2001, this Court allowed the aforesaid amendment. Thereafter, the defendants also filed written statement to the amended plaint.
An additional issue was also framed on 7.10.2005 to the following effect:
"Issue No.2-A Whether the agreement to sell was entered between Baldev Kaur and Teja Singh on 16.12.1989? OPP."
In support of their case, the appellants led evidence. On the other hand the defendant-respondents failed to lead any evidence and their evidence was closed by order of the Court.
The trial Court after considering the evidence on record and hearing counsel for the parties came to the conclusion that though the PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 5 plaintiff-appellants have proved all the facts co-related and incidental to the execution of the agreement to sell Ex.P1 but there was no witness examined by them to prove the agreement itself except PW2 Pritpal Kaur and from her statement, the execution of the agreement was not proved. The trial Court further found that even the agreement to sell in question (Ex.P1) was dated 2.12.1989 and the plaintiffs had initially filed the suit on the basis of agreement dated 2.12.1989. However, later on the pleadings were amended to the effect that actually the agreement was entered on 6.12.1989 and it was wrongly typed as 2.12.1989. The trial Court further observed that no doubt the plaintiffs got the pleadings amended on the ground that the typographical mistake was committed by the respondent's staff while typing the agreement but there was no evidence on record that agreement was actually executed on 6.12.1989 and it was wrongly typed to have been executed on 2.12.1989. Moreover, as per the case of the plaintiffs themselves, Baldev Kaur along with her daughter Pritpal Kaur PW-2 had left India on 4.12.1989 for Bangkok and this fact makes the plaintiffs' case doubtful as to the execution of the agreement on 2.12.1989 or on 6.12.1989. Rather it falsifies the plaintiffs' version. Thus, irrespective of the evidence collateral and incidental to the agreement in dispute, the agreement in question itself stood not proved. Resultantly, while dismissing the suit, it was held that the plaintiffs were not entitled to the specific performance of the agreement to sell in question.
Aggrieved from the aforesaid judgment and decree of the trial Court, the appellants filed an appeal before the Lower Appellate Court which was also dismissed vide judgment and decree dated 3.12.2011 observing as under:
13. "I have heard rival contentions of both the PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 6 sides and gone through the evidence as well as judgment under challenge.
14. Ex.P1 is the agreement which is basis of the case of the plaintiff. The date which can be read on it is 2.12.1989 though the case of the plaintiffs is that it was executed on 6.12.89 and further as case of the plaintiff Baldev Kaur went to Bangkok, where defendant Teja Singh at that time was residing for the purpose of execution of this agreement. Both Baldev Kaur as well as Teja Singh have died.
15. The daughter of Baldev Kaur, Smt. Prit Pal Kaur appeared in the witness box as PW2. Her statement is relevant. She stated that deal between her mother and Teja Singh took place in the office of Teja Singh. According to her at the time of agreement, she accompanied her mother Baldev Kaur. This thing has come during her cross-examination that she along with her mother went to Bangkok on 4.12.1989. Prior to her statement the case of the plaintiff was that it was executed on 2.12.89. Then what happened that an application for amendment was moved by the plaintiffs to this effect that in fact the said agreement is dated 6.12.1989 and not 2.12.1989.
That application was dismissed by learned trial court, but the same was allowed by Hon'ble High PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 7 Court.
16. Here at this juncture, learned counsel for respondents raised point that even though the application for amendment was allowed by Hon'ble High Court, but it was required on the part of appellant's to prove this fact whether the said agreement was written on 6.12.1989. There is merit in his argument that Smt. Prit Pal Kaur, who stated that she went along with her mother to Bangkok on 4.12.1989, she did not produce her passport to prove this fact that on that date, she accompanied her mother and she took the plea that her passport has since been lost.
17. Further another fact, which has come is that on agreement Ex.P1, the date which is readable is 2.12.1989. Over it there is a fluid applied. If that portion is seen from backside, where fluid is applied than the date readable is found to be 3.12.1989.
18. Here the question arises when as per plaintiffs, their mother Baldev Kaur had went for sole purchase of executing this agreement to Bangkok, then one must be very particular regarding the contents of the same especially the date. If somehow the mistake had occurred in writing the date, then it can be corrected by putting initial etc., in token of its correctness but PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 8 there is nothing of this sort on the file.
19. Moreover, again the question arises how and which of the person had applied the fluid over the date which is written above 2.12.1989. Further PW2 Smt. Prit Pal Kaur had stated that the original of Ex.P1 was retained by her mother. No explanation is forthcoming regarding this fact that who applied fluid when the original was with Baldev Kaur. Learned trial court has rightly appreciated this fact that initially the plaintiffs have filed the suit on the basis of agreement dated 2.12.1989, but lateron the pleadings were amended to that effect that it was entered on 6.12.1989, but there is no evidence on the file to prove that actually agreement was executed on 6.12.1989 and also appreciated the fact that from the entry on the passport Ex.DA of Baldev Kaur, this fact is found that she left India for 4.12.1989. So, all these facts and circumstances make the execution of agreement doubtful.
20. Further during the course of arguments, learned counsel for the respondents raised point that the reading of Ex.P1 reveals that it is not a concluded agreement. It can be said to be just an offer which has not matured into contract.
21. I have gone through the contents of Ex.P1.
The plain reading of which reveals that Teja Singh PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 9 is willing to sell his Kothi No. 560 18-D, Chandigarh to Baldev Kaur at an amount of Rs.
13,25,000/- by getting deposit of 500 US dollars and the other important line is that Baldev Kaur would settle rest of the amount within May or June 1990. The contents of it as stated above reveals that it is not a concluded agreement between the parties and certain things have yet to settle.
22. This argument of learned counsel for appellants that the court should consider letters which he had written subsequent to the agreement dated 24.04.1990, 17.5.1990 and 19.2.1991 to infer this fact that the agreement was executed between the parties. A cumulative reading of letters as well as agreement leads to one point that there might be some talks going on between the parties regarding the sale of property, but those talks have not matured into an agreement which can be enforced. A perusal of Ex.P1 as discussed above, do not give the impression that it was a concluded agreement between the parties and the reading of letters reveals that Teja Singh was not satisfied with the amount written in Ex.P1.
23. Further during the course of arguments, I appreciated the arguments of learned counsel for the respondents that the relief of specific PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 10 performance is a relief of equity and the discretion is to be guided by section 20 of the Specific Relief Act. He raised point that son of plaintiff Baldev Kaur in his cross-examination has admitted that the house in question is built on a plot of 2 kanal and its price in the year 2003 was stated to be Rs.80 lacs to Rs.90 lacs and he raised point that the court can take judicial notice regarding enormous increase of price after 2003 and if this type of unconcluded agreement is enforced then it would give an unfair advantage to the plaintiffs and for that purpose, he placed reliance upon Niwas Builders Versus Chanchalaben Gandhi decided by the Division Bench of Bombay High Court on 10.12.2002 First Appeal No. 779 of 1991 and further placed reliance upon K. Narendra Versus Rabera Apartments Limited 1999(3) PLR Delhi Section
32. In the said judgment Apex Court held that severe hardship may be ground for refusing specific performance.
24. Further learned trial court has rightly appreciated that though the plaintiffs have tried to lead evidence incidental to the agreement, but they had failed to prove the agreement itself. So, in these circumstances, the plaintiffs are not entitled to any specific performance of agreement. PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 11
So, findings given by learned trial court on issues no.1 and 2 are upheld.
25. No other point was urged and argued before me."
Still not satisfied, the LRs of the plaintiff have filed the instant appeal submitting that the following substantial questions of law arise for consideration of this Court:
"i) Whether in the facts and circumstances of the case, the findings recorded by the courts below that execution of agreement is not proved are based on mis-reading of evidence and by ignoring material evidence on record and therefore, cannot be sustained?
ii) Whether lis is required to be decided on the basis of amended pleadings once amendment is allowed and judgments and decrees of the courts below placing reliance on amended pleadings vitiates the judgments and decrees of the courts below?
iii) Whether the relief of specific performance can be denied on the ground of increase in prices on property during pendency of the pleadings when the record shows that the defendant used all tactics to delay the decision of the case?
iv) Whether in the facts and circumstances, judgments and decrees of the courts below suffers from perversity being contrary to evidence PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 12 on record and against settled principles of law?"
Learned senior counsel for the appellants has vehemently argued that the findings of the Courts below to the effect that execution of the agreement is not proved cannot be sustained from the evidence on record. According to the counsel, in the instant case ,intentions of the parties to sell and purchase the suit property is proved from the correspondence between the parties which took place prior to entering into an agreement to sell in question and also after execution of the agreement to sell in question. The said correspondence between the parties was duly produced by PW-6 Bhupinder Singh while appearing as a witness and neither any challenge has been laid by the respondents to the said correspondence at the time of exhibition of the aforesaid documents nor the said witness was cross-examined with regard to the genuineness of these documents. According to the counsel for the appellants, from the documents Ex.P8 to Ex.P10, it is evident that the negotiations were going on between the parties to enter into the agreement and from these letters, it is clear that the sale consideration was fixed at Rs.13,25,000/- between the parties and on this confirmation, plaintiff-Baldev Kaur went to Bangkok where Ex.P1 was executed and not only this, after execution of the agreement, Teja Singh- defendant started resiling from the agreement and demanding more money. Learned counsel for the appellants has referred to letters Ex.P 11 and Ex.P-12 wherein Teja Singh-defendant has admitted the sale consideration and also execution of the agreement and receiving the earnest money. Thus, according to the learned senior counsel, in the present case, intention of the parties to sell and purchase the suit property is proved from the correspondence between the parties and it is further found that the deal was settled between the parties at Rs.13,25,000/- and PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 13 defendant-Teja Singh received an earnest money of 500 US $ and that after execution of the agreement and receiving the earnest money, defendant-Teja Singh started delaying the execution of sale deed as some other prospective buyers were offering more money. On the basis of the aforesaid evidence on record, counsel for the appellants has vehemently argued that although the agreement to sell is dated 2.12.1989 but it was actually executed on 6.12.1989 and this fact is proved from the statement of Pritpal Kaur PW-2 and other evidence on record proving the fact that plaintiff-Baldev Kaur along with PW-2 Pritpal Kaur left India on 4.12.1989 for Bangkok, it will not make any difference even if the agreement shows the date as 2.121989 instead of 6.12.1989 and since the intention of the parties to strike the deal and receipt of earnest money etc. has been proved, the date of agreement on the document in question is of no consequence and the findings of the Courts below that the agreement to sell is not proved being perverse and result of mis-interpretation of evidence on record are liable to be reversed in favour of the appellants. Counsel for the appellants has further argued that the Courts below have declined the relief of specific performance on wrong assumptions as efflux of time and escalation of price of the suit property by itself cannot be a valid ground to deny the relief as the appellants had filed the instant suit without any delay on their part and the pendency of the instant proceedings cannot come in their way for grant of specific relief as time was not an essence of the contract in the instant case. Counsel for the appellants has relied upon the judgments of Hon'ble the Supreme Court in Satya Jain (D) Thr. LRs. and others versus Anis Ahmed Rushdie (D) Thr. LRs and others 2013 (1) CCC 579, Narinderjit Singh versus North Star Estate Promoters Limited 2012 (3) RCR (Civil) 168 and the judgment of this Court in RSA PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 14 No.3576 of 2013 (Dayal Singh versus Avtar Singh and another) decided on 16.5.2014 and has submitted that the substantial questions of law, as raised, do arise in this appeal in favour of the appellants and therefore, the impugned judgments and decrees of the Courts below be set aside and the suit be decreed, as prayed.
On the other hand learned counsel appearing on behalf of the respondents has supported the concurrent findings recorded by the Courts below in favour of the defendant-respondents and has submitted that while exercising its power under Section 100 CPC, this Court will not substitute its opinion with the findings of the Courts below on the basis of reappraisal of evidence, even if another view is possible. Learned counsel for the respondents has further argued that the collateral and incidental evidence on record to prove the intention of the parties to settle the deal is of no help to the appellants as the very basis of the suit i.e the execution of the very agreement to sell in question is doubtful as the version of the plaintiff- appellants has been belied by their own evidence on record. It is the further case of the respondents that the appellants have to stand on their own legs to entitle them to the decree as prayed and even if they have failed to lead any evidence it will not improve the case of the appellants. It was also argued that the power to grant specific performance of an agreement as vested in the Civil Court under Section 20 of the Specific Relief Act is discretionary and there is nothing on record to prove that such a discretion was exercised by the Courts below in an arbitrary manner and in view thereof, the instant appeal is liable to be dismissed as no substantial question of law arises in the instant appeal.
I have heard learned counsel for the parties and perused the impugned judgments and decrees of the Courts below. The pleadings and PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 15 records of the case have also been perused.
The controversy in hand is very narrow i.e. whether execution of the agreement dated 2.12.1989 (as per amended pleadings though wrongly typed as 2.12.1989 but actually executed on 6.12.1989) is proved on record.
The original agreement to sell in question is on the record as Ex.P1 which reads thus:
"2nd December, 1989.
Subject: Sale Property Kothi Plot No.560, Sector 18-B, Chandigarh.
This letter is to be read as an agreement between Mr. Teja Singh Sachdev and Mrs. Baldev Kaur, to show that Mr. Teja Singh Sachdev is willing to sell his kothi Plot No.560 in Chandigarh sector18-B to Mrs. Baldev Kaur at amount Rs.1,325000.00 (One Million Three Hundred Twenty Five Thousand) by getting deposit of $500.00 (Five Hundred U.S. Dollars). Mrs.Baldev Kaur will settle rest of the amount within May or June, 1990. No Later.
SELLER BUYER
sd/- sd/-
MR. TEJA SINGH SACHDEV MRS.BALDEV KAUR"
This purported agreement to sell is not witnessed by any witness. The date of this agreement has been typed as 2.12.1989 and there is a fluid over and above the aforesaid date. However, from the reverse side of this agreement the date is visible to the naked eye as 2.12.1989. A reading of the aforesaid agreement would show that Teja Singh had shown his intentions to sell the suit property in dispute in favour of the plaintiff at an amount of Rs.13,25,000/- by getting deposit of 500 US PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 16 dollars and the remaining amount shall be settled by Mrs. Baldev Kaur upto May/June, 1989. Thus, the aforesaid agreement cannot be said to be a concluded agreement between the parties as from the aforesaid document itself, it cannot be inferred that the parties had concluded the agreement to sell. However, the argument of the learned counsel for the appellants is that the intention of the parties to sell and purchase the property is proved from the correspondence Ex.P8 to Ex.P-12 between the parties wherein Teja Singh-defendant has admitted the sale consideration and also execution of the agreement and receipt of the earnest money of US 500 dollars and thus, there was a concluded agreement to sell between the parties.
Counsel for the appellants has also referred to the statement of Sh. K.N. Parshad, an expert witness who has proved on record his report to the effect that the disputed signatures of Teja Singh on the agreement to sell in question and his standard signatures on the documents dated 5.3.1952, 18.4.1978 and 27.6.1978 were of one and the same person and thus, there was ample evidence on record to prove the due execution of the said document.
Counsel for the appellants has also referred to the statement of PW-2 Pritpal Kaur, who stated that the deal was struck between Baldev Kaur and Teja Singh in the office of Teja Singh and at the time of agreement, she accompanied her mother Baldev Kaur. It further came in her cross-examination that she went to Bangkok along with her mother on 4.12.1989 and on reaching Bangkok, the agreement to sell in question was executed between the parties and she had taken a photograph Ex.P2 with its negative Ex.P3 wherein Baldev Kaur was sitting with Teja Singh in his office. Counsel for the appellants has also relied upon the PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 17 correspondence between plaintiff-Baldev Kaur and defendant-Teja Singh Ex.P-8 to Ex.P-12. The aforesaid correspondence was produced on record by Bhupinder Singh while appearing as PW-6. However, at this stage, it may be noticed that Pritpal Kaur had appeared as witness on 3.1.1997 as PW-2 and prior to her examination as witness the case of the appellants was that the agreement to sell in question was executed on 2.12.1989. However, in her statement, a fact came that she had left India on 4.12.1989 for Bangkok and had reached either on 4.12.1989 or 6.12.1989 and thereafter, an application for amendement was moved by the plaintiffs to the effect that the said agreement is of dated 6.12.1989 and not 2.11.1989 and the same was wrongly typed.
It may further be noticed that the appellants have failed to prove that the said agreement was executed on 6.12.1989 as there is absolutely no evidence on record to prove the said fact as on the agreement in question date '6.12.1989' is not typed. Even Pritpal Kaur, who is the sole witness to prove this fact, is not sure with regard to the date of execution of the agreement to sell in question. Even the said witness has not produced her passport to show that she actually travelled to Bangkok along with her mother. Further, it may be noticed that the alleged correspondence between the parties Ex.P8 to Ex.P12 relied upon by the appellants is of no help to them for concluding that the intentions of the parties to sell and purchase the property and further that the agreement was concluded, as the said correspondence (i.e. letters written by Teja Singh) have not been proved in accordance with law. No doubt these letters were exhibited on the record by PW-6 while appearing as a witness, however, the contents of the aforesaid correspondence remained unproved. Admittedly, nobody has proved the fact that the said letters were PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 18 written by Teja Singh as no handwriting expert has been produced to prove the handwriting of Teja Singh. So much so, even the signatures of Teja Singh on the aforesaid letters have not been proved by producing an expert as Sh.K.N.Parshad has given his opinion only with regard to the signatures of Teja Singh on the agreement to sell only. Though, it has been argued on behalf of the counsel for the appellants that the aforesaid evidence placed on record along with statements of witnesses has remained unrebutted and therefore, the same should be relied upon, however, such an argument cannot be accepted as it is well settled that the plaintiff has to stand on his own legs to seek the relief as prayed. Even if the aforesaid letters have been exhibited on record without any objection from the other side, the contents thereof have remained unproved and in view thereof, they are inadmissible evidence as mere exhibition of a document will not dispense with the mode of proof. Except the statement of PW-2 Pritpal Kaur and the correspondence of Ex.P8 to Ex.P12 as referred to above, there is no other evidence on record to prove the due execution of the agreement to sell in question. The correspondence between the parties has remained unproved and statement of PW-2 does not inspire confidence of the Court as her own testimony shatters the version of the appellants itself as according to the them Pritpal Kaur had gone to Bangkok on 4.12.1989 and the agreement in question was executed on 6.12.1989 and the document was got typed in the office of Teja Singh in the presence of Pritpal Kaur PW-2 who had also taken photograph of the plaintiff and defendant but she does not know the date and had not seen the date on the agreement and had not even signed the agreement as a witness though their sole purpose for visiting the Bangkok was to conclude the agreement to sell in question. Moreover, there is no PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 19 evidence on record to prove that the document in question was actually executed on 6.12.1989.
At this stage, it may also be noticed that the appellants have averred in the plaint specifically that one Sardara Singh had approached defendant-Teja Singh on their behalf by going to Bangkok, however, he remained unsuccessful and he informed them vide his letter dated 11.7.1992 which is placed on record as Ex.P16. It is the further case of the appellants that they prepared a draft dated 18.8.1992 (Ex.P22) for a sum of Rs.13,25,000/- in favour of defendant-Teja Singh and said draft was sent to him at Bangkok through aforesaid Sardara Singh but defendant failed to come to India and execute the sale deed.
However, the aforesaid averments have again remained unproved on record. No one has proved the contents of Ex.P16 i.e. Letter written by Sardara Singh from Bangkok. A perusal of the aforesaid document would further show that it is written on a letter-head of Sardara Singh but there is nothing on record to prove that the said letter was posted from Bangkok to the plaintiffs by Sardara Singh. Even there is no foreign postal envelope as used by the Postal Authorities.
Not only this, there is no evidence on record to prove the assertions of the appellants that they tendered the draft (Ex.P22) to the defendant at Bangkok and he received the same, whereas appellant No.1 in para No.12 of the replication filed on his behalf has specifically stated that the defendant received the aforesaid draft. On the other hand, there is evidence on record to prove the fact that the said draft was got cancelled by the appellants from the Bank Authorities later on, as admitted by PW-9 Ravi Kumar Gupta. If as per the affidavit of plaintiff No.1-Bhupinder Singh, who has specifically stated so in his affidavit of 8.11.2004, respondent-Teja PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 20 Singh had received the demand draft, how it was got cancelled by the appellants.
At this stage, it may further be noticed that in the original suit, the plaintiffs averred that agreement was executed on 2.12.1989 at Bangkok and Baldev Kaur along with Pritpal Kaur went to Bangkok where the agreement was executed and the said agreement was got typed in the office of Teja Singh and Pritpal Kaur also took photograph of her mother and Teja Singh. Evidence was also led on these pleadings. However, in her statement Pritpal Kaur while appearing as PW-2 on 3.1.1997 spilled the beans by making a statement that they had gone to Bangkok from India on 4.12.1989 and thereafter, passport of Baldev Kaur showing her entry of going to Bangkok on 4.12.1989 as Ex.DA was produced on record.
This evidence clearly demolished the case of the plaintiff that agreement was executed on 2.12.1989. To over come this difficulty, amendment of plaint was sought thereafter on 2.4.1999 by the appellants , to take the plea that it was wrongly dated 2.12.1989 whereas it was executed on 6.12.1989. The said amendment was ultimately allowed by this Court in CR No.5188 of 2003. However, the misery of appellant does not end here as the document Ex.P1 which was produced on record by PW-6 Bhupinder Singh on 3.1.1997 in his evidence is dated 2.12.1989 and the date 6.12.1989 is nowhere mentioned. Even under the fluid the date is 2.12.1989 and in these circumstances, there is no evidence on record to prove that Ex.P-1 was executed on 6.12.1989 and the date was wrongly typed as 2.12.1989 as the only witness Pritpal Kaur while appearing as PW-2 is not sure about the date of reaching Bangkok or date of execution of agreement. Even there is no evidence to corroborate her statement that she accompanied her mother to Bangkok as she has not PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 21 produced any travel record.
Thus, the genuineness of the basic document i.e. agreement to sell in question is doubted on the basis of appreciation of evidence in question, therefore, the evidence produced on record incidentally and collaterally to the execution of the agreement to sell in question, is of no help to the appellants unless the doubt of the Court is cleared by the appellants with regard to the execution of the agreement to sell in question itself. Admittedly, there is no evidence on record to clear the aforesaid doubts and in view thereof, this court finds no fault with the findings of the Courts below to the effect that agreement to sell in question is not proved.
At this stage, it may further be noticed that there is no dispute with the judgments cited by the counsel for the appellants. However, it is well settled that discretion to direct specific performance of an agreement has to be exercised on sound, reasonable, rational and acceptable principles and the parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. Ultimately guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case. Since in the instant case, the execution of the agreement to sell in question is not proved, the judgments cited by the counsel for the appellants are of no help to him. Moreover, it is further well settled that the discretion exercised by the Courts below under Section 20 of the Specific Relief Act cannot be interfered with lightly in the absence of any evidence on record to prove the arbitrariness of the Court which is entirely missing in the instant case. PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 22
In view thereof, no substantial question of law, as raised, in this appeal.
No merits.
Dismissed.
August 28, 2014 (RAKESH KUMAR GARG)
ps JUDGE
PUSHPINDER SAINI
2014.09.08 14:58
I attest to the accuracy and
integrity of this document
High Court Chandigarh
RSA No.692 of 2012(O&M) 23
PUSHPINDER SAINI
2014.09.08 14:58
I attest to the accuracy and
integrity of this document
High Court Chandigarh
RSA No.692 of 2012(O&M) 24
At this stage, it may be noticed that the appellants examined PW-2 Pritpal Kaur who stated that the deal was struck between Baldev Kaur and Teja Singh in the office of Teja Singh at Bangkok. The agreement was got typed from his staff and at that time, she also took a photograph which is proved on record as Ex.P2 with its negative as Ex.P3. She has further stated in her testimony that she along with her mother went to Bangkok on 4.12.1989 and she had not seen the fluid over the date mentioned in Ex.P1. She further stated that she has not seen the document Ex.P1 as a witness at the time of its execution. However, said Pritpal Kaur has not produced her passport on record. The plaintiffs also examined Sh. Davinder Kumar as PW-1 to prove on record the affidavit dated 5.3.1952. Ex.PW1/1, letter dated 18/24.4.1978 Ex.PW1/2 and conveyance deed Ex.PW1/3 to prove the signatures of Teja Singh on these documents. However, in his cross examination, said Davinder Singh stated that these documents were neither signed nor submitted in the office of U.T. Administration in his presence. The plaintiffs also produced on record a certified copy of a draft worth Rs.13,25,000/- dated 18.8.1992 to show their readiness and willingness to perform their part of the agreement in question. The plaintiffs also produced on record Sh. K.N Parshad, Document Expert as PW5. Bhupinder Singh, one of the appellants, stepped into witness box as PW-6 and produced on record the alleged correspondence between plaintiff-Baldev Kaur and defendant-Teja Singh as Ex.P8 to Ex.P12. However, in his entire testimony, the aforesaid witness has not stated that he identifies the PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 25 handwriting and signatures of defendant-Teja Singh or that these letters were in the hand of Teja Singh and he knew about his handwriting. The appellants also produced on record Sh.K.N. Parshad, Document Expert. However, there is no evidence on record to prove the handwriting or signatures of Teja Singh on these letters. Admittedly, these letters were addressed to appellant-Baldev Kaur and not to PW-6 Bhupinder Singh, who has produced the same. Statement of Bhupinder Singh was recorded after the death of Baldev Kaur- plaintiff and therefore, after her death, even he cannot testify to the effect that he knew about this correspondence between plaintiff- Baldev Kaur and defendant-Teja Singh.
It may further be noticed that Sh. K.N. Parshad, Document Expert, who appeared as PW-5, proved on record that signatures of Teja Singh on the agreement to sell in question as well as on the documents dated 5.3.1952, 18.4.1978 and conveyance deed dated 27.6.1978 were of one and the same person. However, during his cross examination, he admitted that there was a gap of 11 years in the disputed signatures and the standard signatures and there were certain variations. It has also come on record that Baldev Kaur died on 14.5.1995. Though there is no rebuttal to the aforesaid evidence yet the perusal of the aforesaid evidence would show that the execution of the agreement to sell in question has not been witnessed by anyone except Pritpal Kaur PW-2 who admittedly has not signed the said agreement as a witness. Though it is the pleaded case of the appellants that Pritpal Kaur was present at the time of execution of agreement in question and she had also taken a PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.692 of 2012(O&M) 26 photograph of her mother as well as defendant-Teja Singh in his office but this act itself cannot establish the genuineness of the execution of the agreement in question. In fact, the complete testimony of said Pritpal Kaur shatters the version of the plaintiff- appellants itself as according to the plaintiff-appellants themselves Pritpal Kaur had gone to Bangkok on 4.12.1989 and the agreement to sell in question was executed on 6.12.1989. It is the further case of the appellants that the document was got typed in the office of Teja Singh and there was a typographical error on the document as the date was typed as 2.12.1989 instead of 6.12.1989. However, no such statement has been recorded by said Pritpal Kaur in her statement. Not only this, it is the case of the appellants themselves that the date was wrongly typed and thereafter, fluid was applied. However, a perusal of the agreement in question by this Court would show that it is visible to the naked eye that even under the fluid, the date was typed as 2.12.1989.
PUSHPINDER SAINI 2014.09.08 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh