IN THE HIGH COURT FOR THE STATES OF PUNJUAB AND HARYANA AT CHANDIGARH R.S.A. No.3084 of 2008 (O&M) DATE OF ORDER:1.5.2009 Gurdev Singh ....Appellant Versus Baldev Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Malkeet Singh, Advocate for the appellant. Vinod K. Sharma,J. (Oral) C.M. No.9145-C of 2008 This is an application for condoning the delay of 2 days in refiling the appeal. For the reasons stated in the application, C.M is allowed and the delay of 2 days in refiling the appeal is condoned. C.M. No.9146-C of 2008 This is an application for condoning the delay of 5 days in filing the appeal on the ground that the delay of 5 days has occurred due to wrong calculation of the period of limitation by the counsel and therefore, delay is not deliberate or intentional. It is settled law that the parties should not be made to suffer on account of fault on the part of the counsel. Consequently, sufficient ground is made out to condone the delay of 5 days in filing the appeal. C.M. is allowed and the delay is condoned. R.S.A. No.3084 of 2008 This regular second appeal is directed against the judgment and decree dated 16.1.2008 passed by the learned courts below vide which suit filed by the respondent-plaintiff for possession by way of specific R.S.A. No.3084 of 2008 (O&M) -2- performance of agreement to sell, stands decreed. The plaintiff-respondent brought a suit on the pleadings that by way of agreement dated 25.12.1996, the defendant-appellant had agreed to sell land measuring 40 Kanal at the rate of Rs. 1,25,000/- per acre. An earnest money of Rs. 1,38,000/- was paid at the time of execution of agreement to sell, and the balance amount was to be paid on the date of execution of conveyance deed which was fixed as 30.12.1997. It is further the case of the plaintiff-respondent that on 14.12.1997, he approached the defendant-appellant and got extended the period for execution of agreement to sell to 30.6.1998, on payment of additional amount of Rs.25,800/-. The entry of extension was duly made on the back of the agreement. It was also the case of the plaintiff-respondent that plaintiff-respondent appeared before the Sub Registrar for registration of the sale deed on 30.6.1998 but the defendant-appellant did not come present. It was also pleaded that the plaintiff-respondent was always willing and still willing to perform his part of the contract. The suit was contested, and the plea was taken, that the defendant-appellant had not executed any agreement. It was said to be forged and fabricated document. Learned courts below on appreciation of evidence have recorded concurrent finding that the defendant-appellant executed an agreement to sell dated 25.12.1997 and also that the date of execution was extended to 14.12.1997. Learned courts below have also recorded a finding of fact that plaintiff-respondent was always ready and willing and still ready and willing to perform his part of the contract. In view of findings, the suit for specific performance stands decreed by holding that the alternative relief R.S.A. No.3084 of 2008 (O&M) -3- of recovery was not adequate compensation to enforce the contract of sale of immovable property. Learned counsel for the appellant contends that the appeal raises following substantial questions of law: 1.Whether learned courts below committed an error in holding that the execution of agreement were proved though the signatures of the defendant-appellant was not proved in accordance with law? 2.Whether learned courts below on the facts and circumstances of the case, could grant a decree for specific performance of an agreement when alternative relief was prayed for? In support of the substantial questions of law, learned counsel for the appellant vehemently contended, that the learned courts below failed to notice, the fact and circumstances of the case to hold that the agreement to sell was executed by appellant. The contention of the learned counsel for the appellant is, that it cannot be believed that one year's time could be fixed for execution of conveyance deed and be further extended by six months. The very fact that such a long period was fixed, created doubt about due execution of the agreement. The pleas of the learned counsel for the appellant cannot be accepted. No presumption can be drawn against the positive evidence on record showing the due execution of the agreement. The attesting witnesses to the agreement proved the due execution and also passing of the consideration amount. It is also the contention of learned counsel for the appellant that R.S.A. No.3084 of 2008 (O&M) -4- the courts below failed to take note of the fact that subsequently written statement was amended, wherein a plea was taken that in fact the agreement was security for loan, and not an agreement, to sell. The contention, therefore, is that the judgment and decree passed by the learned courts below is outcome of misreading of pleadings of the parties. This plea of the learned counsel for the appellant also cannot be accepted. The very fact that defendant appellant has been, changing stand without leading any evidence regarding transaction of loan, can only lead to the conclusion, that the finding of the learned courts below holding due execution of agreement, cannot be faulted with. Learned counsel for the appellant made special reference to the finding of the learned courts below in para 20, which reads thus: “ After hearing learned counsel for both the parties I have gone through the judicial file very carefully and I have observed that main plea taken by the defendant is that he does not know English and he does not sign in English but this plea is not taken by the defendant in his written statement which is beyond that pleadings and if for the arguments sake, it is presumed that he does not know English and he always sign in Punjabi, then on the record t here are not even single document and that also pertain to the application given to the Government Department on which photograph of the defendant is pasted and he sign it in English and these facts are duly proved by defendant. He did not lead any evidence to prove that these signatures were not belong to him, by simply saying that this signature was not hi, does not prove any fact. In this R.S.A. No.3084 of 2008 (O&M) -5- written statement, he simply that this document is result of fraud but in his pleadings as per order 6 rule 4, he does not given the particular of fraud. Besides it there is plenty evidence on the record i.e. Ex.P1 and Ex.PW2/A were duly executed and these were duly proved by the plaintiff. Once document is proved then question arises, whether plaintiff is ready and willing to perform his part of the contract. Perusal to evidence on the file, it become clear that plaintiff possessed sufficient amount. In his evidence, plaintiff stated that he had account in the State Bank of India. Machhiwara in which amount of Rs.200000/- to Rs.250000/- is lying in his account and he borrowed amount of Rs.500000/- to Rs.525000/- from the commission agent at Machhiwara Mohinder Singh and Jaswant Singh. He is still ready and willing to perform his part of the contract. This fact was also corroborated by PW5 Sukhdev Singh. Readyness and willingness of the plaintiff is further evident from the fact that he wen to the office of Sub Registrar, marked his presence before the Sub registrar and also served notice to the defendant to perform his part of the contract. By simply saying that defendant has not executed any document is not sufficient. The defendant is to rebut the allegation of the plaintiff but defendant did not lead any evidence regarding this”. The contention of the learned counsel for the appellant, is that the findings recorded by the learned courts below cannot be accepted as it was for the plaintiff-respondent to prove that the document was signed by the defendant-appellant and it was not for him to prove in negative to show R.S.A. No.3084 of 2008 (O&M) -6- that he never used to sign in English. This plea is also misconceived. As already observed, the due execution has been proved by examining the witnesses. The concurrent finding of fact recorded by the learned courts below, on appreciation of evidence, is not open to challenge in regular second appeal merely on the ground that on the basis of evidence other conclusion is also possible from the one arrived at by the learned courts below. For the reasons stated above, the substantial questions of law, framed are answered against the appellant. No merit. Dismissed. 1.5.2009 ( Vinod K. Sharma) rajeev Judge