RSA No.2982 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2982 of 2008(O&M) Date of decision: 2.4.2009 Mohammad Farooq and others ......Appellants Versus Lakhi Ram and another ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. B.S. Bedi, Advocate for the appellants. Mr. Harbhagwan Singh, Sr. Advocate with Mr. Lalit Sharma, Advocate for the respondents. * * * Rakesh Kumar Garg, J. CM No.8794-C of 2008 For the reasons recorded in the application, delay of 5 days in refiling the appeal is condoned. CM stands disposed of. RSA No.2982 of 2008(O&M) This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondents for possession by way of specific performance of agreement to sell dated 5.4.1999 has been decreed by the Courts below. The plaintiffs had instituted a suit for possession by way of specific performance of an agreement to sell dated 5.4.1999 with regard to the suit land with the averments that they were in possession of the suit land as tenants under the defendants at a nominal rent of Rs.100/- per acre. The defendants being owners of the disputed land executed an RSA No.2982 of 2008(O&M) 2 agreement to sell dated 5.4.1999 in their favour vide which they agreed to sell the disputed land for a consideration of Rs.2,55,000/- and also received full and final payment at the time of execution of the agreement to sell. As per the agreement, 5.7.1999 was the date stipulated for execution and registration of the sale deed. However, the defendants postponed matter on one pretext or the other. Since all the requests made by the plaintiffs fell on deaf ears of the defendants, the present suit was filed. Upon notice, the defendants filed written statement raising various preliminary objections. On merits, the execution of the alleged agreement dated 5.4.1999 and receipt of full and final payment as alleged in the said agreement was denied. It was further alleged that there was protracted litigation between the parties and the plaintiffs approached the defendants for an amicable settlement by appointing Balbir Singh as an Arbitrator and on 5.4.1999, the defendants were asked to sign blank stamp papers so that the said Arbitrator may be given authority to pronounce legally enforceable award. Thereafter, the defendants were asked to appear before the said Arbitrator on 7.4.1999 for settlement of the matter. However, on the said date, they were again asked to appear on the next date i.e. 8.4.1999 as the plaintiffs were not present. On 8.4.1999, the defendants visited the Arbitrator and he expressed his inability to proceed with the matter and when the defendants asked him to return the blank stamp papers, he disclosed in the presence of some respectables of the locality that the plaintiffs have taken away the said blank papers. In this regard, a notice dated 9.4.1999 was sent to the plaintiffs asking them to return said papers, but till date the said notice was not responded back by the plaintiffs. Thereafter, all of a sudden on 22.1.2001, a notice was received by the defendants which was duly replied on 19.2.2001. All other material averments of the plaint were denied and dismissal of the suit was RSA No.2982 of 2008(O&M) 3 prayed for. The trial Court after evaluating the evidence led by the respective parties arrived at a conclusion that the defendants had entered into an agreement to sell dated 5.4.1999 with the plaintiffs to sell the suit land for consideration of Rs.2,55,000/- and had received the entire sale consideration and the plaintiffs had always been ready and willing to perform their part of the payment. Consequently, the suit of the plaintiffs was decreed with costs and the defendants were directed to execute and get registered the requisite sale deed in favour of the plaintiffs in three months from the date of the judgment and decree. Feeling aggrieved against the judgment and decree of the trial Court, the defendants filed an appeal before the Lower Appellate Court. Along with the appeal, the defendants also preferred an application under Order 41 rule 27 read with Section 151 CPC for production of additional evidence submitting that the whole case revolves around the agreement to sell dated 5.4.1999 which is alleged to be scribed by Sh. Som Parkash Goyal, Deed Writer and as the defendants took the definite stand that the alleged agreement to sell is a forged document, so the testimony of Som Parkash Goyal, Deed Writer, is of vital importance and therefore, the defendants may be allowed to examine the said Deed Writer to prove the genuiness of the alleged agreement to sell dated 5.4.1999. However, the Lower Appellate Court found no merit in the aforesaid application for leading additional evidence and dismissed the same as under: “By way of the present application, the defendant- appellants intend to examine Som Parkash Goyal Deed Writer of alleged agreement to sell dated 5.4.1999 to prove the due execution of the agreement to sell and in fact as per the case of the plaintiff-respondents, it is for RSA No.2982 of 2008(O&M) 4 the plaintiff-respondents to prove the due execution of the agreement to sell dated 5.4.1999 and to prove the same, they have examined PW2 Tulsi Dass and PW3 R.D. Kaushik, Advocate, an attesting witnesses to the said agreement to sell dated 5.4.1999. If ultimately the plaintiff-respondents are not able to prove due execution of the agreement to the sale deed dated 5.4.1999, they would face the consequence in this regard and if at all the defendant-appellants were interested in examining the Deed Writer as a witness, they could have examined him before the learned trial Court and in this way, they have not exercise due diligence as such evidence was within their knowledge. Thus, the present application containing no merit deserves dismissal and is accordingly dismissed.” The Lower Appellate Court also found no merit in the appeal filed by the defendants and dismissed the same. Still not satisfied, the defendants have filed the present appeal. Learned counsel for the appellants has argued that the substantial questions of law as mentioned in the grounds of appeal arise in this appeal. In support of his case, learned counsel for the appellants has vehemently argued that the execution of the agreement in question is not proved beyond doubt as Scribe of the agreement to sell was not examined nor the passing of the consideration of the agreement has been proved in this case and the agreement to sell is full of suspicious circumstances and in these circumstances, the Courts below have erred at law while granting decree for specific performance of the agreement to sell and in such eventuality, it was not appropriate for the Civil Court to exercise its RSA No.2982 of 2008(O&M) 5 discretion in favour of the plaintiffs. Learned counsel for the appellants has also referred to the agreement Ex.P-1 to show that signatures of the appellants were taken on blank papers and thereafter, the agreement in question was forged and fabricated. Learned counsel for the appellants has also argued that the Lower Appellate Court erred at law while rejecting the application filed by the appellants for production of additional evidence as the whole case revolves around the agreement to sell dated 5.4.1999 which was allegedly scribed by Sh. Som Parkash Goyal, Deed Writer. Since the appellant had taken a definite stand that the alleged agreement to sell was a forged document, the testimony of Som Parkash Goyal, Deed Writer was very much necessary for effective adjudication of the dispute between the parties. In support of his argument, learned counsel for the appellants has placed reliance on the judgments of this Court in Malkiat Singh v. Charan Kaur and others 2007(3) RCR (Civil) 791, Balwinder Kaur v. Bawa Singh and others 2002(3) RCR (Civil) 217 and Hakam Singh v. Gurdev Singh 1999 (3) CCC 547. Thus, on the basis of his arguments, counsel for the appellants has raised the argument that the Courts below have erred while granting specific performance of the agreement in question which was not proved beyond doubt. The learned counsel for the appellants prayed that the appeal be accepted and the judgment and decrees of the Courts below be set aside and suit of the plaintiff-respondents be dismissed with costs. On the other hand, learned senior Advocate, appearing on behalf of the respondents has vehemently argued that both the Courts below on appreciation of evidence have recorded a concurrent finding of fact that execution of agreement to sell in question and receipt of earnest money stood duly proved from the evidence on record. He has contended that as no substantial question of law arises, the appeal is liable to be RSA No.2982 of 2008(O&M) 6 dismissed. I have heard learned counsel for the parties and perused the impugned judgment and decrees. The argument raised by the learned counsel for the appellants is misconceived. As per the findings of the Lower Appellate Court, the agreement in question stood duly proved from the testimony of marginal witnesses and non-examination of scribe was not fatal to the case. The evidence sought to be produced by the appellants, as additional evidence was of no use to him because of the stand taken by them in the pleadings. The definite stand taken by the appellants in their pleadings is that there was protracted litigation between the parties and on 5.4.1999, there was an amicable settlement between the parties to refer the dispute to the Aribitration of Balbir Singh and for that purpose, blank stamp papers by the appellants were given to him which he handed over to the plaintiff- respondents who have forged and fabricated the agreement in question. Thus, the defendant-appellants have admitted their signatures on the agreement in question. Once that was so, onus shifted upon the appellants to prove the fact that the blank stamp papers were handed over to Balbir Singh who further handed over the same to the plaintiff- respondents who then forged and fabricated the agreement in question on those papers. However, the appellants have miserably failed to prove their pleadings in this regard. They have not placed on record an iota of evidence to prove the stand taken by them. The Lower Appellate Court noted that so much so, Balbir Singh was cited as a witness by them. However, for the reasons best known to them, said Balbir Singh, who was the best witness to depose about the factum of receipt of blank stamp papers from the appellants and further proving their contention was given up by them. Moreover, the stand taken by the appellants that their RSA No.2982 of 2008(O&M) 7 signatures were obtained on the blank papers cannot be believed because DW-1 in his cross-examination has admitted this fact that all the defendants are well educated and in fact, defendant No.2 is an Advocate and thus, by no stretch of imagination it can be believed that the defendants would affix their signatures on blank papers especially when a litigation between the parties is going on relating to the disputed land. The Lower Appellate Court also found that there is absolutely no evidence to prove fraud or misrepresentation committed by the plaintiff-respondents. Thus, in the facts and circumstances of the case, it cannot be held that finding of fact recorded by the Courts below that execution of agreement in question stood duly proved was erroneous or perverse and is liable to be set aside. No case is made out for interference in the discretion exercised by the Courts below ordering specific performance. The judgments cited by the learned counsel for the appellants are of no help to him as the same are not applicable in the facts of the case. The Hon'ble Supreme Court of India in the case of Deity Pattabhiramaswamy v. S. Hanymayya and others AIR 1959 SC 57, held that this Court has no jurisdiction to interfere in second appeal with the findings of fact given by the First Appellate Court based upon appreciation of relevant evidence and there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. Similarly in Thiagarajan and others v. Sri Venugopalaswamy B. Koil and others AIR 2004 SC 1913(1), it was held that in exercise of its jurisdiction under Section 100 CPC, the High Court cannot reassess, reappreciate and make a roving enquiry by entering into the factual arena of the case. It is also important to mention that in Narayanan Rajendran & RSA No.2982 of 2008(O&M) 8 another v. Lekshmy Sarojini & others JT 2009(4) SC 62, the Hon'ble Apex Court has held that the scope of interference by the High Court in second appeal under Section 100 CPC after 1976 amendment is strictly confined to cases involving substantial questions of law. The relevant observations of the Hon'ble Supreme Court in the aforesaid case are as under: “The High Courts would have jurisdiction of interfering `under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become”third trial on facts” or “one more dice in the gamble.” Thus, the scope of interference by the High Court in second appeal under Section 100 CPC after 1976 amendment, is strictly confined to cases involving substantial questions of law. No such substantial question of law arises in this appeal. RSA No.2982 of 2008(O&M) 9 For the reasons recorded above, I find no merit in this appeal. Dismissed. April 2, 2009 (RAKESH KUMAR GARG) ps JUDGE RSA No.2982 of 2008(O&M) 10