Punjab-Haryana High Court
Virender Pal vs Parmod And Another on 24 July, 2012
Author: L.N. Mittal
Bench: L.N. Mittal
Regular Second Appeal No. 4985 of 2010(O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Regular Second Appeal No. 4985 of 2010(O&M)
Date of decision : July 24, 2012
Virender Pal
....Appellant
versus
Parmod and another ....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. RN Lohan, Advocate, for the appellant
L.N. Mittal, J. (Oral)
CM No. 14691.C of 2010 Although strictly speaking, averments made in the application (supported by affidavit), do not make out sufficient ground for condoning long delay of 143 days in filing the appeal, yet adopting liberal approach, the application is allowed and delay of 143 days in filing the appeal is condoned.
RSA No. 4985 of 2010 Plaintiff Virender Pal who was partly successful in the trial court but has been completely non-suited by lower appellate court has filed Regular Second Appeal No. 4985 of 2010(O&M) -2- instant RSA No. 4985 of 2010 along with RSA No. 4986 of 2010, both having same title Virender Pal versus Parmod and another. Two appeals have been filed because there were two first appeals although there was only one suit in the trial court. Both these regular second appeals shall stand disposed of by this common order.
Plaintiff - appellant alleged in the suit that the defendants vide agreement dated 22.11.2001 agreed to sell a shop to the plaintiff for consideration of ` 20 lacs and received ` 3,50,000/- as earnest money and executed separate receipt for the same. The plaintiff paid further amount of ` 50,000/- to the defendants against receipt. Thereafter final agreement dated 25.8.2003 was executed between the parties. Sale deed was to be executed upto 7.11.2003. The plaintiff attended the office of Sub Registrar on 7.11.2003 to get the sale deed executed but the defendants did not turn up. The plaintiff alleged that according to agreements, he was entitled to refund of double the earnest money. Accordingly, plaintiff sought declaration that he is entitled to double the amount of earnest money and defendants are liable to pay the same. The plaintiff also sought mandatory injunction directing the defendants to pay the said amount of ` 8 lacs along with interest.
Defendants controverted the plaint averments and denied having received any amount from the plaintiff or having executed any Regular Second Appeal No. 4985 of 2010(O&M) -3- agreement or receipt. The defendants alleged that both the parties were running joint business and plaintiff used to run the said business and had obtained signatures of defendants on some blank papers in connection with business and the plaintiff also removed some cheques signed by the defendants from the business premises.
Learned Civil Judge (Junior Division), Rohtak vide judgment and decree dated 12.8.2009 partly decreed the plaintiff's suit declaring that he is entitled to refund of earnest money of ` four lacs. The defendants were accordingly directed to pay the said amount to the plaintiff.
Both the parties preferred first appeals against judgment and decree of the trial court. Learned District Judge, Rohtak vide common judgment and decrees dated 16.1.2010 dismissed appeal preferred by the plaintiff and allowed the appeal preferred by the defendants and accordingly dismissed the plaintiff's suit in toto. Feeling aggrieved, the plaintiff has filed these two second appeals.
I have heard learned counsel for the appellant and perused the case files.
Counsel for the appellant contended that in view of receipt Ex. P1 22.11.2001 and agreements Mark A and B dated 22.11.2001 and 25.8.2003 and also in view of agreements dated 18.6.2002, 18.12.2002 and 25.2.2003 Exs. P2 to P4 and receipt dated 25.2.2003 Ex. P5, the plaintiff's Regular Second Appeal No. 4985 of 2010(O&M) -4- case is fully proved.
I have carefully considered the aforesaid contention but the same cannot be accepted. Whole case of the plaintiff is based on alleged agreements dated 22.11.2001 and 25.8.2003. However, the said original agreements have not been produced in evidence. Copies of the said agreements have been produced as Mark A and Mark B. No permission to lead secondary evidence of these agreements was sought by the plaintiff. Thus, whole basis of the claim of the plaintiff is knocked out because aforesaid agreements have not been proved. Agreements to sell dated 18.6.2002, 18.12.2002 and 25.2.2003, Exs. P2 to P4 were not even pleaded by the plaintiff. Consequently, said agreements being beyond pleadings cannot even be looked into. Moreover, the said agreements as well as receipt Ex. P1 dated 22.11.2001 and receipt Ex. P5 dated 25.2.2003 have not even been proved. There is only solitary statement of the plaintiff to prove the said documents. No witness or scribe thereof has been examined to prove the same. Consequently, the said documents are not even proved in accordance with law. Even copies of agreements dated 22.11.2001 and 25.8.2003, Marks A and B have also not been proved because no witness of the said agreements has been examined to prove the same. Satdev Malik, Document Writer PW2 scribe of agreements Marks A and B stated that no money transaction took place in his presence. Consequently, receipt Ex. P1 Regular Second Appeal No. 4985 of 2010(O&M) -5- dated 22.11.2001 regarding alleged payment of ` 3,50,000/- pursuant to agreement of even date Mark A also cannot be accepted.
It is, thus, manifest that plaintiff has miserably failed to prove his case. Agreements dated 22.11.2001 and 25.8.2003 have not been produced or proved. Other documents Ex. P1 to P5 have also not been proved. The said documents also do not advance the case of the plaintiff- appellant.
In addition to the aforesaid, suit for declaration and mandatory injunction is not maintainable in the present form. Plaintiff could seek specific performance of the agreements or recovery of ` 8 lacs. However, the plaintiff has not filed suit for specific performance of the agreements or recovery of money. Suit for declaration and mandatory injunction, therefore, is not maintainable in view of section 34 of the Specific Relief Act because further relief of specific performance of the agreements or recovery of money has not been claimed.
For the reasons aforesaid, I find no merit in these second appeals. No question of law much less substantial question of law arises for adjudication therein. Both the appeals are accordingly dismissed in limine.
( L.N. Mittal )
July 24, 2012 Judge
'dalbir'