R.S.A. No.3910 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.3910 of 2007 (O&M) Date of Decision:17.12.2008 Sucha Singh .....Appellant Vs. Charanjit Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Rajnish Narula, Advocate for the appellant. Mr. Arvind Kashyap, Advocate for the respondent. **** JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 10.4.2007 passed by the Court of learned District Judge, Ropar whereby she dismissed the appeal preferred against the judgment/ decree dated 22.4.2006 vide which the Court of learned Additional Civil Judge (Senior Division), Ropar decreed the suit for specific performance of the agreement to sell with a direction to the defendant to join hands in execution of the sale deed in favour of the plaintiff within a period of two months but on deposit of balance sale consideration within the aforesaid period and also restrained the defendant from alienating the suit land to anyone else except the plaintiff. The factual matrix is that the defendant was owner to the extent of 3/4th share in the suit land measuring 11 kanal 10 marlas which he agreed to sell in favour of the plaintiff on 30.5.2002 by receiving an earnest money R.S.A. No.3910 of 2007 (O&M) -2- to the tune of Rs.1,24,000/- and by executing the sale agreement dated 30.5.2002. As stipulated in the agreement, the sale deed was to be executed and registered by 29.5.2003. Later on, the time to execute the sale deed was extended upto 25.5.2004 by mutual agreement of the parties by writing on the back of the sale agreement on 22.5.2003. The plaintiff has always been ready and willing and is still ready and willing to perform his part of the contract. On 25.5.2004 and the following day, he remained present in the office of the Sub-Registrar, Morinda for getting the sale deed executed and registered in his favour by making a payment of the balance sale consideration, but the defendant did not turn up. The plaintiff got executed an affidavit on the said dates regarding his presence in the aforesaid office. The same was got attested from the Executive Magistrate. The defendant has failed to perform his part of the contract and is not willing to perform the same. In answer to this claim, the defendant entered appearance and filed his written statement inter-alia pleading that the suit is not maintainable as no agreement of sale was ever executed by him in favour of the plaintiff. The following issues were framed by the learned trial Court:- 1. Whether defendant entered into an agreement to sell the suit land in favour of the plaintiff on 30.5.2002 and received a sum of Rs.1,24,000/- as earnest money? OPP 2. Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP 3. Whether the plaintiff is entitled to recovery of Rs.1,24,000/- plus damages by way of alternative R.S.A. No.3910 of 2007 (O&M) -3- relief?OPP 4. Whether the suit is not maintainable? OPD 5. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 6. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit as noted supra. Feeling aggrieved therewith, the defendant went up in appeal, which was dismissed by the learned First Appellate Court. Being undaunted and dissatisfied, he has preferred this second appeal. I have heard the learned counsel for the parties, besides perusing the findings returned by both the Courts below with due care and circumspection. Mr. Rajnish Narula, Advocate appearing on behalf of the appellant argued that indeed the appellant had taken a loan from the respondent being in dire need of money and in lieu thereof, the respondent obtained his thumb impressions on blank papers as a measure of collateral security, but subsequently, those blank papers were converted into the agreement to sell in dispute. The land owned by the appellant is valuable as the market value thereof at the time of alleged agreement was not less than Rs.10 lacs per acre and now-a-days the same has hiked to Rs.20 lacs per acre and thus, there was no occasion for the appellant to enter into an agreement to sell the land for a sum of Rs.3 lacs per acre, which is on the very lower side. The Courts below were required to have passed a decree for refund of the earnest money alleged to have been received by the appellant from the respondent. The grant of decree for specific performance R.S.A. No.3910 of 2007 (O&M) -4- is a matter of discretion under Section 20 of the Specific Relief Act, 1963. The Court is not bound to grant such relief, merely because, it is lawful to do so. The discretion is to be exercised on sound and settled judicial principles. The Court is obligated to decline the decree for specific performance where it is found that the grant of specific performance, would be inequitable. There are major contradictions and inconsistencies in the statements of the witnesses produced by the plaintiff which were brought to the pointed notice by the Courts below, who did not appreciate the same in the right perspective. Both the Courts below have ignored the fact that the respondent- plaintiff has himself admitted that last two pages of the agreement were blank and in the face of this fact, the plea of the appellant assumes greater importance that his thumb impressions were obtained on blank papers, but the Courts below have not appreciated this fact in a manner as desired by law. This fact proprio vigore prove that the agreement to sell in dispute has been forged by the respondent- plaintiff. The facts of this case are such which attract the application of the doctrine of comparative hardship, but the Courts below did not give due weightage to this fact. As is borne out from the evidence, there was no agreement to sell as the last date for completion of the sale was 29.5.2003, but the same was extended to 25.5.2004, i.e., for a period of one year, which goes a long way in proving that the appellant in fact had availed a loan. The Courts below have not appreciated the fact that this is only land available with the appellant and he has not purchased any land even after the alleged agreement to sell. Consequently, judgments recorded by both the Courts below are liable to be set aside. To fortify his contentions, he has relied upon the observations rendered in re: Gurbax Singh v. Labhu Ram, 1995 R.S.A. No.3910 of 2007 (O&M) -5- (3) Punjab Law Reporter 546; V. Muthusami (dead) by LRs., v. Angammal and others, AIR 2002 Supreme Court 1279 and Nirmala Anand v. Advent Corporation (P) Ltd., and another, 2002(2) Recent Civil Reports 765.. To controvert these submissions, Mr. Arvind Kashyap, Advocate appearing on behalf of the plaintiff- respondent canvassed at the bar that both the Courts below have assigned cogent and convincing reason in returning the findings in favour of the plaintiff- respondent and the same call for no interference. He further puts that the stand taken up by the defendant- appellant was of denial of agreement of sale, which has been found to be false and that being so, in view of the observations made by this Court in re: Ved Ram v. Har Kishan, 2008(1) Punjab Law Reporter 159, the specific performance should not be denied. I have given a deep and thoughtful consideration to the rival contentions. The following substantial questions of law arise for consideration herein:- 1. Whether the plaintiff/ respondent is entitled for decree of specific performance? 2. Whether the decree of specific performance is discretionary as per Section 20 of the Specific Relief Act? 3. Whether the comparative hardship of the defendant has to be seen, at the time of passing of a decree of specific performance? 4. Whether the respondent/ plaintiff is entitled to alternative relief for damages? R.S.A. No.3910 of 2007 (O&M) -6- The sale agreement is Ex.P.1. As per the contents of Ex.P.2, the time for the execution of the sale deed was extended upto 25.5.2004. The appellant has come up with the plea that he had borrowed a sum of Rs.65,000/- as a loan and as a collateral security, his thumb impressions were obtained on blank stamp papers, which were later on made into these documents. Ex.P.1 was scribed by Sukhdev Singh. Ravinder Kumar PW2 has testified that “the said writing on the reverse of page 5 of the previous agreement dated 30.5.2002 was prepared by him on 22.5.2003.” A glance though his cross-examination would reveal that it has nowhere been suggested to him that Ex.P.2 writing has been made by him on the blank thumb marked stamp papers already available with the plaintiff. The only suggestion put to him is that the entry in this regard was made by him in his register subsequently, and he had obtained signatures and thumb impressions of the persons concerned. This evidence can be construed to mean that Sucha Singh was available with the plaintiff and his thumb impressions were obtained in the register on 22.5.2003. If the relevant entry existing in this register had been lacking the thumb impression of Sucha Singh, by all probabilities, he would have asked this witness to fetch the register just to ascertain as to whether his thumb impression does exist in the register against the alleged entry. The cross-examination of this witness could have been got deferred till the production of such register. The silence of the appellant in this behalf gives rise to the presumption that the entry with regards to the scribing of Ex.P.2 did exist in such register and it is because of this reason that the said witness he was not called upon to produce the same. The existence of his thumb impression in this scribe's register in itself is enough to hold that Ex.P.1 as well as Ex.P.2 were R.S.A. No.3910 of 2007 (O&M) -7- executed by the appellant in favour of the respondent. If the appellant had borrowed a sum of Rs.65,000/- as a loan, he was not expected to append his thumb impression on the subsequent occasion. In a bid to nullify Ex.P.1, he has deposed in his cross-examination that on the day, he borrowed the sum of Rs.65,000/- as loan, his thumb impressions were not obtained and the same were taken after a few days. It is beyond comprehension as to what was the occasion for him to put his thumb impressions at a later occasion and that too on blank stamp papers. As surfaces in his cross-examination, he has been charged for the offence of murder. May be that, to engage counsel etc., he was in need of money and to meet the same, he had agreed to sell the land in dispute in favour of the respondent. In his written statement, he has taken up the plea that his thumb impressions were obtained on blank papers. He has nowhere alleged that the same were procured on blank stamp papers. To add further to it, his written statement is absolutely silent about the number of his thumb impressions obtained by the plaintiff and on how many papers. This apart, he has also not disclosed the date on which his thumb impressions were obtained on blank papers. So much so, he has faltered to give out the date on which he had obtained the alleged loan. Thus to say the least of it, his pleadings are vague, uncertain and equivocative. In his cross-examination, the appellant regretted his inability to tell as to after how many days of obtaining of the loan, his thumb impressions were obtained. However, as already noticed, he is categoric that on the date, he obtained the loan, he had not thumb marked any blank paper. As argued on his behalf, the value of the disputed land at the time of agreement was not less than Rs.10 lacs per acre and now the same has soared to Rs.20 lacs per acre. To my mind, feeling tempted by the R.S.A. No.3910 of 2007 (O&M) -8- hiking price of the land in dispute, he has repudiated the execution of Ex.P.1 as well as Ex.P.2. He has not adduced any evidence to the effect that on the day of execution of Ex.P.1, the price of the land in dispute was Rs.10 lacs or that the same is now Rs.20 lacs or that the land in dispute is the only source of his livelihood and that he does not own other property. In re: Nirmala Anand (supra), the Apex Court has ruled that “Ordinarily, plaintiff is not to be denied the relief of specific performance only on account of phenomenal increase of price during the pendency of litigation.” In re V. Muthusami (dead) by LRs. (supra), the subsequent purchaser- defendants were found to be the bonafide purchasers for valuable consideration, without notice of agreement for sale in favour of plaintiff. They were in possession of the suit land by investing considerable sum for improvement. It was in these premises held that the decree for specific relief of contract would involve hardship on defendants as compared to plaintiff and the specific performance of agreement cannot be enforced in favour of the plaintiff. Thus, the alternative relief was granted, whereas in the case in hand, the factual scenario is altogether different. As such, the appellant cannot derive any mileage from the observations rendered in re: V. Muthusami (dead) by LRs. (supra). In re: Gurbax Singh (supra), it has been observed that “In the instant case, the lower appellate Court has come to a positive conclusion that the purported document is not an agreement to sell the property. So, declined to award the relief of specific performance. Thus, ostensibly, the facts of Gurbax Singh's case (supra) are also non-identical with the present one. Consequently, in respect to questions No.1, 2 and 4, it is concluded that the plaintiff- respondent is entitled for decree of specific performance and the alternative relief of damages would not meet the ends R.S.A. No.3910 of 2007 (O&M) -9- of justice. The appellant had agreed to sell the suit land at the rate of Rs.3 lacs per acre in the year 2002. As already noticed, he has neither pleaded nor is there any evidence to spell out that the grant of specific performance would operate as a comparative hardship to him. Thus, substantial question No.3 is answered accordingly. As a sequel of the above discussion, this appeal being bereft of any merit is dismissed. December 17, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? No