RSA No. 3589 of 2009 (O& M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3589 of 2009 (O&M) Date of Decision: October 08, 2009 Dilawar Singh ...... Appellant Versus Siri Chand etc. ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr. Yogesh Chaudhary, Advocate for the appellant. **** 1. Whether Reporters of local papers 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? Ajay Tewari, J. This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the respondents for specific performance of an agreement to sell. The case of the appellant was that his signatures and those of his mother were obtained by the respondents on blank paper on the pretext that the respondents would be able to obtain Government pension for the mother of the appellant. However, in cross-examination the mother of the appellant admitted that she was already getting pension for the last 10 years, thus completely displacing the case set out in the written statement. It was in this view of the matter that the Courts below have decreed the suit. RSA No. 3589 of 2009 (O& M) 2 Learned counsel has argued that at any rate the present was a case where the discretionary relief of specific performance should have been declined because the property was being sought to be purchased at a much lower price. I am afraid no basis has been laid for this argument. Learned counsel has referred to the admission of deed writer in cross-examination to say that that witness had admitted that Collector rate was Rs. 6.5 lacs whereas the appellant got less price. In my opinion mere admission by deed writer cannot be held to be binding to get some benefit from this statement. It was incumbent upon the appellant to prove as to what was the Collector rate of the property in dispute at the relevant time. The following questions have been proposed:- i) Whether in a case of disputed agreement to sell, the burden does not heavily lies upon the plaintiff to prove the payment of the alleged amount of earnest money,whether having ever been paid to the defendant/alleged prospective vendor or not? ii)Whether the learned lower Courts could have decreed the suit of the respondent-plaintiff,without even considering the material aspect as regards the payment of the alleged amount of earnest money? iii)Whether the contradictory statements of the alleged witnesses are sufficient to prove the due execution of the disputed agreement to sell? iv)Whether the admissions on the part of the respondent- plaintiff that he can neither produce the details of the account number from which the alleged amount of earnest money was withdrawn; and nor even the record of the availability of the funds with him on the alleged date of execution does not warrant an adverse inference to have been drawn against him? v) Whether in the facts of the present case,wherein the RSA No. 3589 of 2009 (O& M) 3 respondent-plaintiff not only filed the present suit for specific performance against the appellant but later also filed a suit for recovery against the mother of the appellant have the learned lower Courts not gravely erred in decreeing the suit for specific performance filed by such a respondent- plaintiff? vi)Whether the non-filing of replication by the plaintiff to rebut the specific averments of the defendants as regards the non- execution of the agreement to sell and also as regards the non-payment of any earnest money does not amount to be an admission on his part? It would be seen that questions No. 1 to 4 are pure questions of fact. Learned counsel has taken me through the findings recorded thereon but has not been able to persuade me that the said findings are either based on no evidence or on such misreading of evidence so as to be liable for interference under Section 100 C.P.C. As regards question No.5, in my opinion, the fact that the respondents had instituted an independent suit against the mother of the appellant on the basis of an independent pronote would not have the effect of prejudicing the present suit. As regards question No.6 there is no warrant in law for the proposition that mere non filing of replication amounts to admission of the case set out in the written statement. Consequently holding all the questions proposed above against the appellant, this appeal is dismissed. No costs. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE October 08, 2009 sunita