R.S.A. No. 3205 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3205 of 2007 (O&M) Date of decision : 28.1.2009 Yashoda alias Sodhan ....Appellant Versus Sukhwinder Singh and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. Avnish Mittal, Advocate for the appellant. Mr. M.K.Singla, Advocate for the respondents. ..... MAHESH GROVER, J. This appeal by the defendant is directed against the judgments of the learned trial Court dated 6.8.1997 and that of the first Appellate Court dated 26.7.2007. The plaintiff-respondent and the appellant had entered into an agreement dated 10.1.1994 to sell the property which has been described in the suit. The date for perfecting the agreement into a sale deed was fixed as 15.5.1994. The total sale consideration was fixed at Rs.6,50,000/- out of which Rs.50,000/- were paid as earnest money. It was the case of the plaintiff/respondent that the appellant failed to perform her part of the agreement and as a result of which he was R.S.A. No. 3205 of 2007 (O&M) -2- constrained to file the suit for specific performance seeking to enforce the aforesaid agreement. The appellant contested the suit and set up a plea of fraud to say that the thumb impressions on the agreement to sell were obtained by fraud. He also took up a plea that prior to the filing of the present suit another suit had been filed by the respondent/plaintiff claiming his right to the property on the basis of a family settlement but the suit was got dismissed as withdrawn. It was pleaded that this fact has not been specifically set out in the plaint and that amounted to concealment of fact and therefore the Courts below could not have granted a relief to a person who had not come before it with clean hands. Both the parties went to trial on the following issues :- 1. Whether the defendant had agreed to sell out suit land vide an agreement of sale dated 10.1.1994 after receiving an earnest money of Rs.50,000/-?OPP 2. Whether the plaintiff is entitled to specific performance of said agreement?OPP 3. If issue No.2 is not proved, whether in the alternative plaintiff is entitled to the recovery of damages to the tune of Rs.1.00 lac?OPP 4. Whether the plaintiff is entitled to the permanent injunction as prayed for?OPP 5. Whether the civil Court has got no jurisdiction to try this suit?OPD R.S.A. No. 3205 of 2007 (O&M) -3- 6. Whether the suit has not been properly valued for the purpose of Court fees and jurisdiction?OPD 7. Whether the suit is liable to be dismissed in view of dismissal of suit No.141/10.2.1994?OPD 8. Whether the agreement is the result of fraud and misrepresentation? OPD 8A. Whether the plaintiff is estopped by his act and conduct, acquiescence and has waived his right from filing the suit? OPD 8B. Whether the suit is barred under Order 2 Rule 2 CPC? OPD 9. Relief. The learned trial Court came to the conclusion that the agreement to sell and the default on the part of the appellant has been established and therefore directed the agreement to be enforced by way of execution of the sale deed. In appeal, the findings of the learned trial Court were affirmed. Learned counsel for the appellant while assailing the aforesaid judgments of the learned trial Court and that of the first Appellate Court contended that the plaintiff/respondent having concealed the material facts from the Court was not entitled to the relief as granted by the Courts below. That apart, it was contended that the thumb impressions of the appellant were obtained by fraud. He also referred to the testimony of the handwriting expert V.B.Bhatnagar PW5 who said that the finger prints of the R.S.A. No. 3205 of 2007 (O&M) -4- defendant/appellant do not tally. I have heard the learned counsel for the parties. The appellant has pleaded fraud which is to be established by leading cogent evidence on record. She has failed to produce such material evidence that would establish the fraud which he has pleaded. In fact, if the impugned judgments are to be perused and the stand of the appellant is to be considered, there appears to be a dichotomy. She on the one hand has admitted her thumb impressions which were obtained by fraud and in the same breath she stated that the finger prints appearing on the agreement do not tally with hers. Once a plea of fraud is set up to contend that the thumb impressions were obtained by fraud and misrepresentation, then it implies that the thumb impressions are admitted and it is only the manner in which they have been obtained, is the matter of contest. There appears to be an admission of the thumb impressions as also the tenor thereof which reveals that the stand of the appellant is absolutely hollow. The plaintiff/respondent on the other hand has substantiated his plea by leading cogent evidence on record. The agreement to sell has been proved and so as his presence before the Sub-Registrar on the relevant date. The payment of consideration has also been proved. In this view of the matter, when all the three essential ingredients stand established, the findings of the Courts below cannot be termed to be erroneous. In a suit for specific performance the three essentials i.e. the agreement to sell, passing of the consideration and willingness to perform his/her part of contract are good parameters which are to be established in a Court of law. The agreement to sell has to be read as R.S.A. No. 3205 of 2007 (O&M) -5- it is and if the attending circumstances are also proved, there is no escape from the conclusion that a person who comes to the court seeking enforcement of the agreement is entitled to it. No perversity has been shown in the findings recorded by the Courts below. No substantial question of law has been shown to have arisen in the appeal. Accordingly, the same being devoid of any merit is dismissed. 28.1.2009 (MAHESH GROVER) JUDGE dss