IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2556 of 2011 (O&M) Date of decision: 12th July, 2011 Ashok Kumar … Appellant Versus Chiman Devi and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. A.K. Chopra, Senior Advocate with Mr. Rajneesh Chauhan, Advocate for the appellant. KANWALJIT SINGH AHLUWALIA, J. Having failed in two rounds of litigation, the appellant-plaintiff has approached this Court by filing present regular second appeal. The appellant-plaintiff had instituted a suit for possession by way of specific performance of contract. Case, as set out by the appellant-plaintiff in the suit, is that the defendant-Des Raj had executed an agreement to sell on his own behalf as well as on behalf of his wife Chiman Devi along with minor sons namely, Parmod Kumar and Karun Kumar Anand. As per the appellant- plaintiff, the defendant had agreed to sell his agricultural land total measuring 33 kanals and 7 marlas situated within the revenue estate of village Banchari, Tehsil Hodal, District Faridabad. The details and description of the suit land have been given in para No.2 of the plaint. The sale consideration as determined between the parties was Rs.2,50,000/- per acre. It is pleaded in the suit that on 31st October, 1995 Regular Second Appeal No.2556 of 2011 (O&M) the defendant received a sum of Rs.5.00 lakh from the appellant-plaintiff as earnest money and issued a receipt thereof also. The sale deed was to be executed on or before 31st January, 1996. It was also specifically pleaded by the appellant-plaintiff that on the date fixed for execution of the sale deed, he remained present in the office of Sub Registrar, Hodal along with the balance sale consideration and he also had the sufficient amount to purchase the stamp papers and bear the registration expenses. By non-appearance on the date fixed, it was averred that the defendant had violated the terms and conditions of the agreement to sell dated 31st October, 1995. In the suit it was also specifically averred that the appellant-plaintiff has always been ready and willing to perform his part of the contract, however, intention of the defendant became dishonest and he failed to perform his part of the agreement to sell dated 31st October, 1995 and thus, a decree for specific performance of the agreement to sell was sought. Upon notice of the suit, the defendant caused appearance and filed written statement. Execution of the agreement to sell dated 31st October, 1995 was denied by the respondent-defendant. The plea that the appellant-plaintiff was ready and willing to perform his part of the contract was also denied and it was specifically stated that the appellant- plaintiff had no sufficient funds to pay the balance sale price. Even the sale consideration fixed at Rs.2,50,000/- per acre was also denied and so was the receipt of earnest money. It was also denied that the appellant- plaintiff remained present in the office of Sub Registrar along with the balance sale consideration and other expenses. Preliminary objections regarding the locus-standi of the appellant-plaintiff and cause of action were also raised and it was pleaded that because of the estoppel, the 2 Regular Second Appeal No.2556 of 2011 (O&M) appellant-plaintiff is not entitled to any relief. A replication was filed by the appellant-plaintiff in which he reiterated the stand taken in the plaint and controverted the contents of the written statement. The trial Court had drawn following issues: “1. Whether the defendant had agreed to sell the suit land to the plaintiff vide an agreement to sell dated 3.10.1995(sic)? OPP 2. Whether in addition to land detailed in Para No.1 of the plaint, the defendant had also agreed to sell on behalf of his minor son Parmod and Karun and wife Smt. Chaman Devi, the land detailed in Para No.2 of the plaint? OPP 3. Whether defendant had received Rs.5 Lacs as earnest money vide receipt dated 3.10.1995? OPP 4. Whether plaintiff has always been ready and willing and is still ready and willing to perform his part of contract? OPP 5. Whether the plaintiff is entitled to specific relief of contract regarding the suit land? OPP 6. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 7. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD 8. Whether the suit has not been properly valued for the purposes of Court fees and jurisdiction? OPD 9. Relief.” Both the parties led their evidence. Issues No.1 to 3 were decided in favour of the appellant-plaintiff. The trial Court concluded as under: 3 Regular Second Appeal No.2556 of 2011 (O&M) “9. … … … In these circumstances and in view of the above discussion, it is held that deceased defendant Des Raj executed the agreement Ex.P-1 and receipt Ex.P-2 on dated 31.10.1995 in favour of the plaintiff in the presence of witnesses and received a sum of Rs.5,00,000/- as earnest money from the plaintiff vide receipt Ex.P-2. Perusal of the agreement Ex.P-1 reveals that the said agreement was executed by the defendant to sell his land and also the land belonging to his wife and minor sons Parmod and Karuna Anand. At the time of arguments, the learned counsel for the plaintiff has failed to show any provision of law under which Des Raj was legally empowered to execute the agreement on behalf of his wife and his minor sons to sell the land belonging to them. Therefore, the part of the agreement Ex.P-1 executed by defendant late Shri Des Raj on behalf of his wife and minor sons to sell the land belonging to them is not legal in the eyes of law. In these circumstances and in view of the above discussion all these issues are decided accordingly in favour of the plaintiff.” However, the Court decided issue No.4 against the appellant- plaintiff and in favour of the defendant. The trial Court further held that the plea raised by the appellant-plaintiff that he remained present in the office of Sub Registrar on 31st January, 1996 along with the balance sale consideration and the expenses required for registration of the sale deed, is not born-out from the documentary evidence as it has not been proved that the appellant-plaintiff got himself marked present by moving an application to the Sub Registrar, Hodal; nor he got any affidavit attested from the Sub Registrar, Hodal qua his presence. Therefore, the trial Court concluded that the plaintiff has failed to prove that he was ready 4 Regular Second Appeal No.2556 of 2011 (O&M) and willing to perform his part of the agreement to sell. Qua issue No.5, the Court held that the plaintiff is entitled to recover a sum of Rs.5,85,000/- from the legal representatives of deceased defendant Des Raj along with pendentelite interest @ 9 percent per annum and future interest @ 6 percent per annum. Issue No.6 was decided in favour of the appellant-plaintiff. Issues No.7 and 8 were not pressed by the defendant, and therefore, they were decided against him being not pressed. So far as the relief is concerned, the trial Court decreed the suit with costs to the effect that the plaintiff is entitled to recover an amount of Rs.5,85,000/- along with pendentelite interest @ 9 percent per annum and future interest @ 6 percent per annum. The appellant-plaintiff was aggrieved since the specific performance of the contract by directing the defendant to execute the sale deed was not ordered. Thus, the appellant-plaintiff filed first appeal against the order of trial Court, which was dismissed by the Court of Additional District Judge, Palwal. The lower appellate Court held as under: “31. … … … As per facts of the case, application filed by the defendant under The Hindu Minority and Guardianship Act was decided on 31.5.1997. Therefore, the plaintiff was not aware till 31.5.1997 that defendant has backed out with regard to rest of the land which belongs to his minor son and wife. If it is so, the plaintiff was required to bring the entire amount of Rs.45,00,000/- on 31.1.1996 as remaining sale consideration before the Sub Registrar along with registration charges and necessary expenses required for purchasing of stamp. But in this case the plaintiff has not pleaded this fact nor he has ever stated on oath that on 31.1.1996 he went to the office of Sub Registrar along with remaining sale consideration of 5 Regular Second Appeal No.2556 of 2011 (O&M) Rs.45,00,000/-. Even the plaintiff has not pleaded in his plaint as to on which date he came to know that defendant has backed out from the agreement with regard to share of his son and wife. Therefore, it amounts to concealment of a material fact by the plaintiff. PW1 Ashok Kumar plaintiff has appeared in the witness box and tendered his affidavit Ex.PW1/A. In this affidavit also he has not mentioned as to how much amount was in his possession on 31.1.1996 when he visited the office of Sub Registrar, Hodal. In his affidavit he has stated that he had always been ready and willing to perform his part of the agreement by making payment of total sale consideration of Rs.11,33,000/- with regard to land measuring 36 Kanals 5 Marlas. Therefore, it is clear that on 31.1.1996 the plaintiff was not having an amount of Rs.45,00,000/- with him despite the fact that he was not aware that application filed by Des Raj has been dismissed by a Court to seek permission regarding share of minor. I am of the considered opinion that the plaintiff came to know about this fact after 31.5.1997; and thereafter he had taken the plea after approximately 10 months that he is ready and willing to get the sale deed executed with regard to share of defendant in lieu of Rs.11,33,000/-. In view of aforesaid circumstances the readiness and willingness on part of the plaintiff is not established as he has not pleaded true facts and concealed numerous material facts from the Court. 32. Secondly, the plaintiff, as alleged by him, went to the office of Sub Registrar on 31.1.1996 but no documentary evidence has been led by the plaintiff to establish that he ever attended office of Sub Registrar. I am also of the considered opinion that in case the plaintiff went to the office of Sub Registrar on 31.1.1996 to execute the sale deed he must be accompanied by a person like witness or some companion, but no such witness has been examined by the plaintiff.” 6 Regular Second Appeal No.2556 of 2011 (O&M) The lower appellate Court further held that “I am also of the considered opinion that the statement of plaintiff on oath in this case does not appear to be bonafide, rather it is highly doubtful”. The concurrent finding of fact returned by both the courts below that the appellant-plaintiff was not ready and willing to perform his part of the contract has been vehemently assailed by Mr.A.K. Chopra, Senior Advocate assisted by Mr.Rajneesh Chauhan, Advocate. It has been urged before me that there is no necessity for the appellant-plaintiff to prove his willingness by proving any document. Learned senior counsel has submitted that it is not mandatory for the appellant-plaintiff to file an application before the Sub Registrar to show that he remained present in the office of Sub Registrar, Hodal on the date fixed. Learned counsel has further submitted that legally it is not necessary that the appellant-plaintiff should get his affidavit attested from the Sub Registrar to depict his presence. Counsel has stated that the oral evidence should be sufficient to infer that the appellant-plaintiff was ready and willing to perform his part of the contract. In support of this contention, reliance has been placed upon ‘Aniglase Yohannan v. Ramlatha and others’ 2005(4) RCR (Civil) 563. I have perused the judgment rendered in Aniglase Yohannan’s case (supra). The following portion of the same is required to be reproduced here: “11. … … … This Court observed that readiness and willingness could not be treated as a straitjacket formula and that had to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. It was held that in the absence of any material to show that ‘A’ at any stage was not ready and willing to perform his part of the contract or that he did not have the necessary funds for payment when the sale-deed 7 Regular Second Appeal No.2556 of 2011 (O&M) would be executed after the sanction was obtained, ‘A’ was entitled to a decree for specific performance of contract.” In the present case, the lower appellate Court has held that the oral evidence of the appellant-plaintiff is doubtful and implicit reliance cannot be placed thereupon. In these circumstances, cannons of appreciation require that the Court should seek corroboration to the testimony of the appellant-plaintiff. No evidence has been led to show that on the date the sale deed was to be executed, the appellant-plaintiff was having the required amount. No official from any Bank has been examined. Admittedly, the appellant-plaintiff had got prepared no draft. Even no witness has been examined to say that the appellant-plaintiff had drawn the amount from the Bank or had obtained it from any other source. Furthermore, the courts below have rightly held that an application submitted before the Sub Registrar or an affidavit got attested would have lent credence to the oral testimony. As to whether the appellant-plaintiff was ready and willing to perform his part of the contract or not, is a question of fact which was to be proved by leading evidence. Since no documentary evidence was forthcoming in support of the bald oral assertion, both the courts below after appreciating the evidence have held the same not to be trustworthy. This Court in regular second appeal shall refrain from reappreciating and reevaluating the evidence, especially when no documentary evidence is coming forward in support of the oral testimony which has been held to be doubtful. Since both the courts below on a question of fact have granted alternative relief to the appellant-plaintiff, 8 Regular Second Appeal No.2556 of 2011 (O&M) this Court has no hesitation to hold that no substantial question of law arises for its consideration. I have also perused the substantial question of law projected by the appellant-plaintiff in para No.23 of the grounds of appeal. In view of the inescapable finding of fact returned by both the courts below that the appellant-plaintiff was not ready and willing to perform his part of the contract, the question so formulated will have no bearing for decision of the case. Hence, there is no merit in the present appeal and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE July 12, 2011 rps 9