RSA No. 2507 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 2507 of 2011 (O&M) Date of Decision: 03.6.2011. Gurtej Singh .......Appellant Vs. Jaspal Singh and another ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. P.K.Dutt, Advocate for the appellant. ..... SABINA, J. Plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 25.1.2005. The case of the plaintiff in brief was that the defendant No.1 was owner to the extent of 41/216 share in the suit property and defendant No.2 was owner to the extent of 47/1602 share of the land out of land measuring 44 Kanals 7 Marlas and 275 Kanals 16 Marlas. Defendant No.1 was also owner to the extent of 1/8th share out of land measuring 6 Kanals 3 Marlas and was owner to the extent of 1/4th share out of land measuring 8 Kanals 6 Marlas. Defendant No.1 was also owner of land measuring 5 Kanals 2 Marlas and defendant No.2 was owner of land measuring 1 Kanal 13 Marlas as detailed in the head note of the plaint. Defendant No.1, on his own behalf and on behalf of RSA No. 2507 of 2011 (O&M) -2- his wife-defendant No.2, entered into an agreement to sell the suit property measuring 80 Kanals in favour of the plaintiff @ ` 2,45,000/- per killa on 25.1.2005. ` 7,00,000/- were paid to the defendant No.1 by the plaintiff towards earnest money at the time of execution of the agreement to sell in question. It was agreed that the sale deed would be executed between the parties on 15.5.2005. Plaintiff had remained present in the office of the Sub Registrar on 13.5.2005 and 16.5.2005 to perform his part of the contract as 14.5.2005 and 15.5.2005 were gazetted holidays. Defendants, however, failed to appear to perform their part of the contract. Defendants, in their written statement, denied the contentions in the plaint. The execution of the agreement to sell in question was denied. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the decree of possession by way of specific performance as prayed for? OPP 2. Whether in the alternative plaintiff is entitled to the recovery of Rs. 24 lacs along with interest as prayed for? OPP (amended vide order dated 6.11.2009) 3. Whether plaintiff has got no locus standi or cause of action to file the present suit? OPD 4. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD 5. Whether the document in question is forged and RSA No. 2507 of 2011 (O&M) -3- fabricated document? OPD 6. Relief.” Additional Civil Judge (Senior Division) vide judgment and decree dated 31.3.2010 decreed the suit of the plaintiff for specific performance of agreement to sell in question qua the share of defendant No.1. Aggrieved by the said judgment and decree, defendants preferred an appeal and the same was dismissed by the Additional District Judge vide judgment and decree dated 22.1.2011. Hence, the present appeal by the defendant No.1. Learned counsel for the appellant has submitted that the courts below had erred in decreeing the suit of the plaintiff for specific performance of agreement to sell in question qua the appellant as the plaintiff had failed to establish that he was ready and willing to perform his part of the contract. Moreover, the defendants had denied the execution of the agreement to sell in question. In support of his argument, learned counsel for the appellant has placed reliance on 'N.P.Thirugnanam (D) by L.Rs versus Dr. R. Jagan Mohan Rao and others AIR 1996 Supreme Court 116', wherein it was held as under:- “It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act 1963 (for short, 'the Act'). Under Section 20, the court is not bound to grant the relief just because there was valid agreement of sale. RSA No. 2507 of 2011 (O&M) -4- Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the RSA No. 2507 of 2011 (O&M) -5- plaintiff was ready and always ready and willing to perform his part of contract.” After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. Plaintiff had filed the suit for specific performance of agreement to sell dated 25.1.2005. In order to prove the due execution of the agreement to sell in question, plaintiff himself appeared in the witness box as PW-1 and examined PW-2 Raghbir Singh attesting witness to the agreement to sell and PW-3 Randhir Kumar Goyal, scribe of the agreement to sell in question. The said witnesses deposed qua the due execution of the agreement to sell in question. Both the parties examined hand writing experts to support their respective pleas. Defendants examined DW-3 Dr. Inderjit Singh, Handwriting and Finger Prints Expert, who deposed that the questioned signatures of the appellant, on the agreement to sell in question, did not match with his standard signatures. PW-5 Harbaksh Singh Mander, Finger Prints Expert and Forensic Science Consultant, on the other hand, gave his opinion that the questioned signatures of the appellant on the agreement to sell in question matched with his standard signatures. In these circumstances, the statements of both the experts can be ignored as the experts had given the report in favour of the party who had examined them. However, the plaintiff had been successful in proving the due execution of the agreement to sell in question by examining the scribe as well as the attesting witness to the agreement to sell in question. Mere denial of the execution of the agreement to sell in question by the appellant, fails to rebut the statements of the RSA No. 2507 of 2011 (O&M) -6- witnesses, examined by the plaintiff. The next question that requires consideration is as to whether the plaintiff was ready and willing to perform his part of the contract. In order to establish his plea in this regard plaintiff examined PW-4 Bhola Singh, who deposed that on 16.5.2005, plaintiff had moved an application in the office of the Sub Registrar for marking his presence. The case was called but none had appeared on behalf of the defendants. An endorsement was made on the application by the Naib Tehsildar, Budhlada and the original application was returned to the plaintiff. Thus, the courts below rightly held that the plaintiff had been successful in establishing that he was ready and willing to perform his part of the contract. Defendants had made complaints to the Senior Superintendent of Police wherein they had admitted the execution of the agreement to sell Ex. P-1 but it was averred that entire earnest money had not been paid as per the promise. The defendants, while filing the written statement, on the other hand had denied the execution of the agreement to sell in question. Both the courts below, thus, rightly held that the agreement to sell in question had been duly executed by the appellant. So far as defendant No.2 is concerned, since the agreement to sell in question was not signed by her, the same was not liable to be enforced against her. Plaintiff has not filed any appeal qua the denial of the relief of specific performance of agreement to sell in question qua defendant No.2. There is no quarrel to the preposition of law, settled by the judgment relied upon by the RSA No. 2507 of 2011 (O&M) -7- learned counsel for the appellant but in the facts and circumstances of the present case, it is evident that the plaintiff had been ready and willing to perform his part of the contract. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE June 03, 2011 Gurpreet