IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2918 of 2005 Date of Decision: 25.5.2009 Satya Narain and another. ....... Appellants through Shri N.D.Achint,Advocate. Versus Smt.Kela. ....... Respondent through None. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against the judgments and decrees dated 18.12.2004 and 30.4.2005 passed respectively by the Civil Judge (Senior Division), Gurgaon (hereinafter described as `the trial Court') and the Additional District Judge, Gurgaon (referred to hereinafter as `the First Appellate Court') whereby the suit of the plaintiff-respondent was decreed and the appeal of the defendants-appellants was dismissed. The respondent filed a suit for possession by way of specific performance of agreement dated 4.2.1998. It was pleaded that appellant no.1 executed the said agreement on his own self and on behalf of appellant no.2 as her General Power of Attorney to sell the suit property to the respondent for a total sale consideration of Rs.2,84,375/- out of which R.S.A.No.2918 of 2005 -2- .... Rs.1,90,000/- were paid as earnest money at the time of execution of thereof. It was further pleaded that the sale deed was to be executed on or before 4.6.1998 and the balance sale consideration of Rs.94375/-was to be paid at that point of time. It was the case of the respondent that on 2.6.1998, she approached the appellants along with balance sale consideration and requested them to come present on 4.6.1998 before the office of Sub Registrar to get the sale deed executed and registered to which they agreed. It was averred that she remained present in the office of Sub Registrar, Pataudi with the balance sale consideration and stamp & registration charges on 4.6.1998, but the appellants failed to come present and that she got attested her presence on an affidavit from the said office. It was specifically pleaded that she was always ready and willing to perform her part of agreement, but the appellants, without any tangible reason, had defaulted in executing the sale deed. Upon notice, the appellants appeared and filed their written statement. They denied the execution of the agreement to sell and receipt of the earnest money as alleged. In fact, the entire averments made by the respondent were denied. The parties went to trial on the following issues:- 1. Whether the defendant no.1 for himself as well as on behalf of defendant no.2 entered into agreement to sell dated 4.2.1998 in respect of the suit land and received earnest money of Rs.1,90,000/- as alleged?OPP 2. If issue no.1 is proved, whether the plaintiff has been ready R.S.A.No.2918 of 2005 -3- .... and willing to perform her part of contract?OPP 3. If the above issues are proved, whether the plaintiff is entitled to a decree for specific performance of the agreement to sell in question?OPP 4. Whether the suit is not maintainable in the present form?OPD 5. Whether the plaintiff has got no locus standi to file the present suit?OPD 6. Whether the plaintiff has got no cause of action to file the present suit?OPD 7. Whether the plaintiff is estopped from filing the present suit by her own act and conduct. 8. Relief. Both the Courts below concurrently held that the appellants had failed to establish the fact that the agreement was not validly executed and that the earnest money had also not been paid. It was specifically held that the respondent was ready and willing to get the sale deed executed. The suit was accordingly decreed, which has resulted in the filing of the instant Regular Second Appeal. Learned counsel for the appellants contended with reference to the statement of the respondent, who appeared in the witness box as PW4, that there is a variation in it as she has stated in her pleadings that the earnest money was paid on 4.2.1998, whereas in her testimony she deposed that the sale consideration was paid earlier to the agreement to sell itself R.S.A.No.2918 of 2005 -4- .... which was executed subsequently after a period of four months. He, thus, contended that the entire suit of the respondent deserved to be dismissed on this ground alone as it falsified her case. No one has appeared on behalf of the respondent despite the fact that the case was shown in the warning list and was called out twice. After hearing the learned counsel for the appellants and perusing the impugned judgments, I am of the considered opinion that the findings recorded by the Courts below do not warrant any interference. The Apex Court in numerous judgments has held that unless the findings are perverse and a substantial question of law arises for consideration, there should be no interference in the Second Appeal which has been preferred pursuant to the provisions of Section 100 of the C.P.C. If the evidence on record is to be seen, then the respondent set up a categoric case that the agreement was executed on 4.2.1998 and the earnest money of Rs.1,90,000/- was paid and further that she was always ready and willing to perform her part of contract. These are the three ingredients which are required to be pleaded and proved in a suit for specific performance of the agreement to sell. The respondent has examined the scribe and the attesting witnesses to establish the execution of the agreement to sell. PW1-Kulwant Rai and PW2-Kanhiya Lal are the attesting witnesses. They have proved the execution of agreement to sell, Exhibit P1 and stated that they put their signatures thereon in the presence of each other. They stated that the husband of the respondent had also put his thumb R.S.A.No.2918 of 2005 -5- .... impression on this document. Similarly, they deposed that Satya Narain – appellant no.1 had put his signatures on agreement, Exhibit P1 and that the stamp paper was purchased by him. It was further stated by them that the earnest money was paid by the respondent to the appellants in their presence and that both the parties agreed to bind themselves with the terms and conditions of the agreement. The respondent has also adequately proved her presence before the Sub Registrar on 4.6.1998 and proved affidavit Exhibit P2 in this regard. Her husband, Shri Pat Ram, also appeared as PW5 and supported the case of the respondent. These witnesses were subjected to cross-examination, but their testimony could not be shattered. In this view of the matter, all the three ingredients which are required to be satisfied in a suit for specific performance have adequately been established by the respondent by bringing cogent evidence on record, whereas the appellants have failed to prove their case which is of denial similiciter. In their written statement, the appellants had merely denied the averments of the respondent to say that the agreement was not executed. However, no evidence worth the name was led in support of such a plea. The appellant no.1 did not even deny his signatures on the agreement to sell while appearing as DW1. According to the learned counsel for the appellants, the following questions of law arise for consideration in this appeal:- 1. Whether the impugned decrees and judgments passed by the learned lower courts below are illegal and are based on R.S.A.No.2918 of 2005 -6- .... misreading of evidence as well as on no evidence in view of Annexure P1, plaint and Annexure P2, statement of Smt. Kela Devi? 2. Whether the decrees and judgments passed by the learned Courts below are liable to be reversed? For the reasons stated above, in my view, there is no misreading of evidence or on no evidence so as to hold that the findings of the Courts below are erroneous or perverse because the respondent has established her case beyond doubt. Therefore, the above questions are answered against the appellants and in favour of the respondent. Accordingly, this appeal is dismissed being without any merit. May 25,2009 ( Mahesh Grover ) “SCM” Judge