R.S.A. No. 3425 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3425 of 2008 Date of decision: 20.04.2009 Uttar Singh ....Appellant Versus Pal Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Manjit Singh, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 2.8.2007 passed by the learned lower appellate Court vide which in suit for specific performance filed by the plaintiff/respondent alternative relief of refund of money has been granted. The plaintiff/respondent brought a suit for specific performance of agreement dated 2.5.2000, which was said to have been executed by the appellant/defendant for sale consideration of Rs.7,25,000/-. A sum of Rs.5,00,000/- was paid as earnest money, and it was agreed that the sale was to be executed on 25.10.2000. On the date fixed for execution, the plaintiff/respondent went to the office of Sub Registrar and got himself marked present, whereas defendant/appellant R.S.A. No. 3425 of 2008 -2- failed to appear before the Sub Registrar. The suit was contested, wherein the defendant/appellant denied having executed any agreement to sell. A plea was also taken that he was made to thumb mark certain blank papers under threat by Nathan Singh, who was said to be man behind the plaintiff/respondent in filing the present suit. The learned trial Court dismissed the suit. In appeal, the learned lower appellate Court reversed the finding recorded by the learned trial Court primarily on the ground that the execution of the agreement to sell was duly proved, as the thumb impression was proved by the plaintiff/respondent on the document by examining hand writing expert. Evidence was also brought on record to show that the stamp papers for execution of agreement were, in fact, purchased by the defendant/appellant. Furthermore, the scribe of the agreement appeared in the witness box, who stated that the agreement was scribed in the presence of parties and was read over and explained to the parties, and thereafter the same was signed/thumb marked. Thus, the learned lower appellate Court reversed the finding recorded by the learned trial Court. The learned lower appellate Court further came to the conclusion that the defendant/appellant has failed to prove his stand, as the witness examined by him to prove that the said document was signed under threat, did not appear to face the cross-examination and, therefore, his evidence was not taken into consideration. Though, in the normal circumstances, suit for specific performance was required to be decreed as the plaintiff/respondent has proved due execution of agreement as R.S.A. No. 3425 of 2008 -3- well as his willingness to perform his part of contract. The learned lower appellate Court, however, in view of the evidence on record and the stand taken by the respective parties formed an opinion that agreement said to have been executed was by way of collateral security to secure the loan and, thus, granted alternative relief of recovery of earnest money along with interest by treating the same to be loan transaction. The learned counsel for the appellant contends that this appeal raises the following substantial questions of law: - “1. Whether the judgment and decree passed by the learned lower appellate Court is perverse, as the reasoning given by the learned trial Court has not been met? 2. Whether the judgment and decree passed by the learned lower appellate Court made out a new case, which was not pleaded by the parties?” In support of the substantial questions of law, the learned counsel for the appellant contends that the learned trial Court had rightly rejected the agreement to be forged and fabricated document, as it was outcome of misrepresentation as the papers were got signed under threat by one Natha Singh and, therefore, the learned lower appellate Court was not justified in reversing the said finding on conjectures and surmises. There is no force in the contention of the learned counsel for the appellant. The learned lower appellate Court rightly came to the conclusion that the agreement to sell stood duly proved by examining the witnesses as well as scribe, who deposed that the agreement was read over to the defendant/appellant before his signing the same. It was also proved on record that it was the defendant/appellant, who had purchased R.S.A. No. 3425 of 2008 -4- the stamp papers for executing the agreement. Thus, it cannot be said that the learned lower appellate Court has not met with the reasoning given by the learned trial Court, especially when the appellant had failed to prove the stand taken in the written statement by leading cogent evidence. The next contention of the learned counsel for the appellant that a new case has been made out in favour of the plaintiff/respondent also cannot be accepted. The Court while considering the case for grant of decree for specific performance can always consider the facts and circumstances of the case and grant alternative relief. Merely, because instead of granting a decree for specific performance, the learned lower appellate Court has granted alternative relief of recovery of earnest money by treating it to be loan transaction, it cannot be said that a new case was made out, as contended. The substantial questions of law are answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge April 20, 2009 R.S.