In the High Court of Punjab and Haryana at Chandigarh. RSA No.4120 of 2004 Date of decision:21.01.2008. Charan Kaur …. Appellant Versus Saudagar Singh and another …. Respondents CORAM: Hon’ble Mr. Justice Permod Kohli. Present: Mr. M.K. Garg, Advocate, for the appellant. Mr.RS Aulakh, Advocate, for the respondents. PERMOD KOHLI, J. This is Regular Second Appeal filed by Charan Kaur, defendant No.2 in the suit, against the judgment and decree dated 19.01.2004 passed by the learned Additional District Judge, Moga, in Civil Appeal No.4 of 2003 whereby the judgment and decree dated 18.01.2003 passed by the learned Civil Judge (Junior Division), Moga, has been modified. Saudagar Singh, plaintiff-respondent No.1 herein, filed a suit for specific performance of agreement to sell dated 21.01.1994 in respect to land measuring 3 Kannals and 3 Marlas. It was averred in the plaint that defendant No.1 in the suit and respondent No.2 in the present appeal, entered into the aforesaid agreement for the sale of the land 1 aforesaid at the rate of Rs.60,000/- per acre and an amount of Rs.5500/- was paid as earnest money at the time of the execution of the agreement. The balance amount was to be paid before the Sub Registrar, Dharamkot, at the time of the execution and registration of the sale deed. Respondent No.2 subsequently sold the suit land to the appellant herein vide sale deed dated 25.04.1994 for a consideration of Rs.31500/-. Accordingly, the appellant was also impleaded as a party-defendant in the suit. The plaintiff alleged that at the time of the execution of the agreement, the possession of the land was also delivered to him and the sale deed was required to be executed on or before 01.12.1994. In violation of the agreement to sell, defendant No.1 in the suit, sold the property to defendant No.2 in the suit. Respondent No.2 herein (defendant No.1 in the suit) on being served choose not to contest the suit and was proceeded against ex-parte. However, the appellant herein, defendant No.2 in the suit, contested the suit and disputed the agreement dated 21.01.1994 alleging the same to be forged and fabricated and ante dated having been prepared in collusion with defendant No.1. Defendant No.2 also claimed that the sale deed has been executed pursuant to an agreement to sell dated 08.11.1993 entered into between defendant No.1 and defendant No.2. The sale consideration was fixed at Rs.92500/-, per acre and an advance amount of Rs.7000/- was paid under the aforesaid agreement. The sale deed was to be executed and registered on or before 15.11.1995. In the replication filed by the plaintiff, it was pleaded that the agreement dated 08.11.1993 relied upon by defendant No.2, is ante dated. On the basis of the pleadings of the parties, the learned trial framed as many as seven issues. The plaintiff examined Parveen Kumar, Document Writer as PW-1; Surain Singh Lambardar as PW-2 and plaintiff Saudagar Singh appeared as 2 PW-3 in the witness box. He also placed on record copies of khasra girdawaris Ex.P-8. Defendant No.2 produced one Satinder Singh son of Amar Singh as DW-1 and Parveen Kumar Registration Clerk office of the Sub Registrar as DW-2; Varinder Kumar, Document Writer as DW-3; Gurbant Singh son of Naranjan Singh as DW- 4; and Charan Kaur-appellant herself also appeared in the witness box as DW-6. The learned trial Court returned a specific finding regarding the due execution of the agreement dated 21.01.1994 in favour of the plaintiff as also the receipt of the earnest money. It also found that the agreement to sell dated 08.11.1993 said to be executed by defendant No.1 in favour of defendant No.2, Charan Kaur, was not entered in the register of the Deed Writer, though the Deed Writer had appeared to prove its drafting and execution. The learned trial Court on being satisfied regarding the genuineness of the agreement executed in favour of the plaintiff and expressing its doubt in respect to the agreement dated 08.11.1993 in favour of Charan Kaur, decreed the suit only to grant alternative relief of refund of earnest money with interest at the rate of 12% per annum. The relief of specific performance was denied on the ground that the possession of the property was delivered to Charan Kaur defendant No.2, the purchaser of the land. Aggrieved of the judgment and decree passed by the learned trial Court, plaintiff filed an appeal before the learned Additional District Judge, Moga. The learned Lower Appellate Court has decreed the suit in its entirety vide the judgment and decree impugned in the present appeal. The learned Lower Appellate Court came to the conclusion that the document i.e. agreement dated 08.11.1993 allegedly executed by defendant No.1 in 3 favour of defendant No.2, Charan Kaur, is ante dated document to cover the sale deed dated 05.04.1994. This finding has been arrived at on various grounds which are noticed in paragraph 14 of the impugned judgment. I may briefly notice the grounds mentioned in the impugned judgment which are as follows:- 1. That defendant No.1 did not intentionally contest the suit before the learned trial Court. 2. That the agreement dated 08.11.1993 was got scribed from Deed Writer Varinder Kumar but the same has not been entered in his register. The Court, accordingly, inferred that the document was ante dated and that is why he did not find any entry in the Register. 3. That document Exhibit D-1 is typed agreement, but the particulars of the executant’s and witness Gurmail Singh were written by the Scribe with his pen. The learned Lower Appellate Court found that the name of Gurmail Singh witness was not typed because they were not sure about the person who could have supported the false document. 4. The date stipulated to execute and registration of the sale deed under agreement dated 08.11.1993 was 15.11.1995 after the redemption of the suit land from the mortgaged bank. The learned Lower Appellate Court found that no evidence has been led that the property was ever redeemed or was ever mortgaged with the bank. 4 5. That the original sale deed dated 05.04.1994 has not been produced and a copy of the same shows some interpolation of date. 6. That the sale consideration mentioned in the agreement to sell was Rs.92500/- per acre and at this rate the price of the land measuring 3 kannals and 3 marlas comes to Rs.36422/-, whereas the sale consideration shown in the sale deed is Rs.31500/-. 7. That a sum of Rs.10,000/- was allegedly kept for payment of the mortgage money by defendant No.2, Charan Kaur, but no such amount was stated to have paid to redeem the property. 8. That no mention of agreement to sell dated 08.11.1993 is mentioned in the sale deed dated 05.04.1994. After holding that the agreement dated 08.11.1993 is ante date and finding that the agreement to sell dated 21.01.1994 was duly executed by defendant No.1 in favour of the plaintiff, the learned Lower Appellate Court decreed the suit for specific performance. I have heard the learned counsel for the parties at length and perused the record of the case. Learned counsel appearing for the appellant has vehemently argued that the findings of fact recorded by the learned Lower Appellate Court is based upon misreading of evidence. However, he has not been able to show any mis-reading of the evidence from the record. His further contention is that the relief of specific performance is a discretionary relief and the learned trial Court had validly granted the decree for refund of the 5 earnest money with interest without decreeing the suit for specific performance. Learned counsel has placed reliance on Lalit Kumar Jain Vs. Jaipur Traders Corporation Pvt. Ltd., 2002 (2) RCR (Civil) 715, wherein the following observations have been made by the Hon’ble Supreme Court:- “One more fact which disentitles the plaintiff to the equitable relief under Section 27/31 of the Specific Relief Act is the unexplained delay in filing the suit after the exchange of notices in September 1973. Almost three years later, the suit was filed. This inaction has its own revelation. Either the plaintiff did not stand by his declaration to rescind the contract, as held by the trial Court, or the plaintiff was sitting on the fence and waiting to see whether the turn of events would be to his advantage or disadvantage.” He has further relied upon V. Muthusami (dead) by Lrs. Vs. Angammal, 2002 (2) RCR (Civil), 329, wherein it has been observed that the relief of specific performance is a matter of discretion and the Court is not bound to grant such relief merely because it is lawful to do so. The decree of specific performance is a discretionary relief and the Court is not bound to decree every relief. It is further observed that if it is going to cause hardship to the other party who acted bonafide, the Court can refuse 6 decree of specific performance and grant damages. He has also relied upon Ishar Dass Vs. Kanwar Bhan and others, (1991-2) PLR, 578. It cannot be disputed that the relief of specific performance is discretionary relief, but the discretion has to be exercised judiciously. Once due execution of the agreement is established and it is also established that the second agreement relied upon by the defendants is forged and ante dated to carve out a ground to justify the subsequent sale in breach of the agreement, the judicial conscience require that a valid document consciously executed by the party should be honoured and a party who commits fraud should not be granted any relief as it will be inequitable to grant the premium to a person who is beneficiary to the fraud. In the present case, both the learned Courts below have found the due and valid execution of the agreement dated 21.04.1994 in favour of the plaintiff and also recorded a finding that the agreement relied upon by defendant No.2, dated 08.11.1993 is forged one having been created to justify the sale agreement dated 05.04.1994. Under such circumstances, the appellant cannot claim equity in her favour as it would amount to justify an illegal act. It is settled law that the Lower Appellate Court is the final Court of fact and the judgment impugned passed by the learned Lower Appellate Court is well reasoned judgment. The learned Lower Appellate Court has given cogent reasons for granting the relief of specific performance and rejecting the agreement to sell dated 08.11.1993. There is no valid ground to interfere in the findings of fact recorded by the learned Lower Appellate Court. Even otherwise, no substantial question of law arises in the present appeal. Apart from the above, learned counsel appearing for the respondents has stated that the Bar that pursuant to the impugned judgment 7 and decree, sale deed already stands executed in favour of plaintiff- respondent No.1 on 27.7.2006 and, thus, the judgment and decree impugned in this appeal stand implemented. This statement has not been disputed by the learned counsel for the appellant. No substantial question of law arises. In view of these circumstances, I find no merit in this appeal and the same is hereby dismissed with no order as to costs. 21.01.2008. (PERMOD KOHLI) BLS JUDGE Whether to be referred to the reporter? YES/ NO . 8