R.S.A. No. 3235 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 3235 of 2008 (O&M) Date of Decision : 11.5.2009 B.K. Rajinder Kumar .......... Appellant Versus Praja Pita Brahm Kumaris Ishwariya Vishav Vidyala Branch at Shahzadpur & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Sanjay Jain, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 12.4.2008, passed by the learned Courts below, vide which suit filed by the plaintiff / appellant, seeking specific performance of agreement to sell dated 14.9.1997, stands dismissed. The plaintiff / appellant brought a suit on the pleading, that the suit property was agreed to be sold to the plaintiff / appellant for a sum of Rs. 1,50,000/-, out of which a sum of Rs. 1,20,000/- was paid as earnest money. Though in the written statement, the alleged agreement was admitted, but a specific stand was taken, that the agreement was outcome of fraud and misrepresentation, and the plaintiff himself tore off the agreement, therefore, no specific performance could be claimed, for want of agreement R.S.A. No. 3235 of 2008 2 between the parties. The plaintiff / appellant failed to produce the original agreement to sell dated 14.9.1997, on record, nor any permission was sought to lead secondary evidence. However, he did produce the attesting witness to prove the agreement to sell. The learned Courts below for non-production of original agreement held, that the agreement did not stand proved. The learned Court non-suited the plaintiff / appellant and dismissed the suit. The learned counsel for the appellant contends that appeal raises the following substantial questions of law :- 1. Whether in view of the admission made by the defendant / respondents the Court could non-suit the plaintiff / appellant merely for non production of the original agreement ? 2. Whether the learned Courts below have misread the evidence on record, therefore, the findings recorded are perverse ? In support of the substantial questions of law, referred to above, the learned counsel for the appellant referred to para 4 of the written statement, filed by the defendant / respondents, wherein the agreement dated 14.9.1997 was admitted. The contention of the learned counsel for the appellant, therefore, was that in view of admission , the learned Courts below erred in law in dismissing the suit filed by the plaintiff / appellant. R.S.A. No. 3235 of 2008 3 It is also the contention of the learned counsel for the appellant, that in order to prove his case, the plaintiff / appellant produced on record the photocopy of the agreement as well as examined the attesting witnesses. The learned Courts below, therefore, committed an error in not decreeing the suit by misreading the evidence. On consideration of the matter, I find no force in the contentions of the learned counsel for the appellant. The admission by defendants with regard to the execution of the agreement dated 14.9.1997, could only be used to absolve formal proof of the agreement, the suit for specific performance could not be decreed in absence of the original agreement being brought on record. In view of the stand was taken by the defendant / respondents, that the agreement was outcome of fraud and misrepresentation and on being pointed out, the appellant / plaintiff tore off the agreement. The pleadings were to be read in totality. In view of the specific stand, it was more important for the appellant / plaintiff to produce the original agreement to sell, or in any case should have moved application to lead secondary evidence to prove the loss thereof to dispel the plea raised by defendant / respondent. In absence of proof of the agreement to sell, in accordance with law, the learned Courts below rightly held, that the case of the plaintiff / appellant was not proved. It is well settled law that the plaintiff / appellant in order to succeed is to stand on his own legs and could not take benefit of the weaknesses of the defendants. R.S.A. No. 3235 of 2008 4 The substantial questions of law raised are, therefore, answered against the appellant. No case is made out for interference with the concurrent findings of fact recorded by the learned Courts below. No merit. Dismissed. 11.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE