Regular Second Appeal No. 2201 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2201 of 2009 Date of decision : November 19, 2010 Richhpal Kaur and others ....Appellants versus Arur Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Pardeep Goyal, Advocate, for the appellants Mr. Nandan Jindal, Advocate, for the respondent L.N. Mittal, J. (Oral) This is appeal by legal representatives of original defendant - Gurmeet Singh since deceased after the defendant was successful in the trial court but remained unsuccessful in the lower appellate court. Suit was filed by respondent – plaintiff Arur Singh against Gurmeet Singh for specific performance of agreement to sell dated 23.11.1995 and in the alternative for recovery of ` 4 lacs alleging that the defendant agreed to sell the suit land measuring 6 bighas 9 biswas to the plaintiff @ ` 40,000/- per bigha and received ` 2 lacs as earnest money and executed the aforesaid agreement. The plaintiff always remained ready and willing to perform his part of the contract but the defendant committed Regular Second Appeal No. 2201 of 2009 -2- breach thereof. The defendant, inter alia, pleaded that in fact he had taken loan of ` 1,25,000/- from the plaintiff for which the plaintiff obtained the impugned agreement as collateral security by reciting payment of ` 2 lacs therein as against the actual payment of ` 1,25,000/-. The defendant pleaded that he received ` 1,25,000/- from the plaintiff and not ` 2 lacs. The defendant also alleged that he had paid ` 50,000/- to the plaintiff through cheque and paid ` 60,000/- in cash. It was alleged that only small amount of interest remained due from the defendant to the plaintiff. Various other pleas were also raised. Learned Civil Judge (Junior Division), Malerkotla vide judgment and decree dated 9.6.2004 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned District Judge, Sangrur vide judgment and decree dated 22.1.2009 and thereby suit filed by the plaintiff has been decreed for alternative relief granting decree for recovery of ` 3,44,666/- which included ` 2 lacs as earnest money and ` 1,44,666/- as interest amount till filing of the suit after deducting the proved payment of ` 50,000/- through cheque. The plaintiff has been granted pendente-lite interest @ 1% per month from the date of filing of suit till decree and future interest @ 6% per annum till recovery on the principal amount of ` 2 lacs. Feeling aggrieved, legal representatives of the defendant have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that Regular Second Appeal No. 2201 of 2009 -3- the plaintiff himself did not step into witness box and therefore, his suit could not have been decreed. The contention cannot be accepted. It is correct that if a party does not step into witness box, adverse inference should be drawn against that party. However, at the same time, the case has to be decided on the basis of the evidence whatever has been led by the parties. In a given case party not entering into witness box may still succeed on the basis of the evidence on record or may be on the basis of admissions of the other party. Consequently, in the instant case evidence led by the parties has been evaluated by the courts below, notwithstanding that the plaintiff himself did not appear in the witness box. In the aforesaid context, it has to be noticed that plaintiff has examined scribe of the agreement and one attesting witness of the agreement and both of them have stated that defendant had executed aforesaid agreement and had received ` 2 lacs as earnest money from the plaintiff. Entry in the register of scribe regarding the agreement was also signed by the defendant. The statements of these two witnesses of the plaintiff are, thus, sufficient to prove the execution of the agreement by the defendant and to prove payment of ` 2 lacs by the plaintiff to the defendant at the time of agreement as also recited in the agreement. In addition to it, the defendant himself admitted that he had executed aforesaid agreement although as collateral security. In these circumstances, non-appearance of the plaintiff in the witness box is not fatal and is not by itself sufficient to non-suit the plaintiff for the alternative relief. However, on this ground relief of specific performance of the agreement has been rightly declined to the plaintiff by the courts below. Regular Second Appeal No. 2201 of 2009 -4- Learned counsel for the appellants next contended that it was suit for specific performance of the agreement and therefore, decree for recovery of money could not be passed by converting the suit into money suit and the plaintiff should have filed the suit as a money suit. The contention is completely misconceived and is devoid of merit. The plaintiff in the plaint itself has prayed for alternative relief of recovery of ` 4 lacs i.e. ` 2 lacs as earnest money and ` 2 lacs as damages with further interest @ 2% per month, although the primary relief claimed in the suit was for possession of the suit land by specific performance of the agreement. Thus, the plaintiff filed suit not only for specific performance of the agreement but also alternatively as a money suit for recovery of money i.e. for recovery of ` 4 lacs. Consequently, lower appellate court has not committed any illegality by granting alternative relief of recovery of money to the plaintiff. The trial court non-suited the plaintiff primarily on the ground that he has not appeared in the witness box and therefore, he had failed to prove that he had been ready and willing to perform his part of the contract. The trial court while holding that the agreement was executed as collateral security did not even advert to adjudicate upon the plaintiff's prayer for alternative relief of recovery of ` 4 lacs and thereby the trial court committed grave illegality in completely non-suiting the plaintiff and the lower appellate court was fully justified in un-doing the said illegality committed by the trial court and therefore, the lower appellate court rightly decreed the plaintiff's suit for alternative relief of recovery of money. As noticed hereinbefore, execution of agreement has been admitted by the defendant himself and both the courts below have also Regular Second Appeal No. 2201 of 2009 -5- found that the agreement was executed although as collateral security for money transaction. In these circumstances, there is no illegality or perversity in the judgment and decree of the lower appellate court granting alternative relief of recovery of money to the plaintiff. Consequently, I find no merit in the instant second appeal which is accordingly dismissed. ( L.N. Mittal ) November 19, 2010 Judge 'dalbir'