RSA No.2066 of 2006 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2066 of 2006 (O&M) Date of Decision: September 05 , 2009 Satnam ...... Appellant Versus Mohan Lal ...... Respondent Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.C.B.Goel, Advocate for the appellant. Mr. Vijay S.Kajla, Advocate for Mr. Ashish Aggarwal, Advocate for the respondent. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the respondent for specific performance of an agreement to sell. Learned counsel has proposed the following questions:- 1) Whether Consensus-ad-idem i.e meeting of mind on the same point in the same manner not an essential ingredient of agreement to sell? 2) Whether in a case of specific performance when an illiterate defendant averts that her thumb impressions were taken on papers at her house only, for purpose of sanctioning loan to her son and she never executed the sale deed and never visited the Court premises for said execution but the plaintiff RSA No.2066 of 2006 (O&M) 2 asserts that she very much executed the agreement in Court premises and personally got it notarized there and also thumb marked in the Notaries Register-do the Register of Notary with her thumb mark not becomes a clinching evidence of her presence and execution, in view of Section 101 of Evidence Act which says that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of any fact which he asserts must prove those facts exist? 3) Whether withholding of this leaf by the plaintiff does not raise statutory presumption against the plaintiff under section 114(g) of the Indian Evidence Act? 4) Whether action of plaintiff in calling thumb impression expert and seeking report on the thumb impressions on alleged agreement to sell not an exercise in futility and a simple eye-wash if the same plaintiff does not present the disputed aspect-thumb impression in Notaries Register, in front of the expert for inspection. Again the conduct of plaintiff raises stature presumption against him under section 114(g) that, “that evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it?.” 5) Whether both the Courts below have not committed grave error in law by ignoring Sec. 114 of the evidence act and by failing to take in regard natural events of human conduct and public and private business in there relation to the facts of the particular case? 6) Whether it was not incumbent on the plaintiff to call in Parmod Kumar Jain and confront the defendant as she was saying that Parmod Jain took her thumb impression on the pretext that he will get her loan as Sec. 111 of Evidence Act states that proof of good faith in transactions where one party is in relation of \Active Confidence is on the person who is in Active Confidence when it is on the file that Praveen Kumar Jain's name is very much inscribed as witness in the RSA No.2066 of 2006 (O&M) 3 alleged agreement Ex.P/1 but no signatures are put in the column and Praveen Kumar Jain is a petition writer in the Court only and the witness of the plaintiff states that he had come but left stating I will come again? 7) Whether the only probable reason why witness was withheld even from signing and then appearing in the Court was that he did not want to confront the defendant? 8) Whether a document prima facie exhibiting casual approach and not corroborated by substantial evidence could be made basis for a decree in specific performance an important relief in equity? 9) Whether notarization of a document carrying thumb impression sans identification and without even an indication whether it is a RTI or LTI is not invalid notarization? 10)Whether the person presented by the plaintiff,as his witness to execution of document does not lose his credibility under section 155 of the Evidence Act when he is exposed to glaring contradiction then and there during cross- examination through specific confrontation? 11)Whether after the witness so exposed and discredited the document is not left without credible witness when other attendants to the document are shown to be the defendant and her son who are the victim of the fraud and plaintiff who is a purchaser the interest party? 12)Whether such document without corroboration can be made the basis of decree for specific performance? 13)Whether the factum of purchaser's presence, willingness and readiness with money can be proved by an unendorsed simple typed letter which was not permitted to be exhibited but marked as mark A as it did not bear any receipt of Registrar's office nor it was registered? 14)Whether withholding of specific cross-examination as to taking of money and presence at particular places in front of specific persons and specific markings not fatal to plaintiffs case when entire case hinges on specific circumstances of RSA No.2066 of 2006 (O&M) 4 document making? It would be seen that all these questions are pure questions of fact. Learned counsel has not been able to persuade me that the findings recorded thereon are either based on no evidence or on such misreading of evidence so as to liable for interference under Section 100 C.P.C. Consequently this appeal as well as the application for stay are dismissed. No costs. Since the main case has been decided, all the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE September 05, 2009 sunita