RSA No. 4568 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4568 of 2011 Date of decision: 16.12.2011 Piara Lal Appellant versus Vishal Garg Respondent CORAM : HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. P.K.Gupta, Advocate for the appellant ...... JITENDRA CHAUHAN.J (Oral) This Regular Second Appeal has been preferred by defendant- appellant Piara Lal against the judgment and decree dated 9.8.201,1 passed by the Additional District Judge,Patiala affirming the judgment and decree dated 16.1.2001, passed by the Civil Judge (Sr.Division) Patiala decreeing the suit of the plaintiff-Vishal Garg. Plaintiff-Vishal Garg filed a suit for specific performance of the agreements to sell dated 20.5.1996 and 24.6.1996, executed by Piara Lal the defendant, in his favour, against sale of his two plots as mentioned in the plaint and get the sale deed executed and registered in favour of the plaintiff, after getting income tax clearance certificate. It is alleged in the plaint that the plaintiff has paid Rs. 50,000/- as earnest money on 21.6.1996, paid another amount of Rs. 2,50,000/- on 24.6.1996, and the date for execution and registration of the sale deed was extended upto 21.11.1996. 21.11.1996 was a holiday. Sh. Subhash Chander Singla, RSA No. 4568 of 2011 2 General Attorney of Plaintiff remained present in the office of the Sub Registrar with balance sale consideration and other requisite expenses throughout the day, but the defendant did not turn up. On these premises, the plaintiff filed a suit for specific performance. The defendant-appellant contested the suit inter-alia admitting the execution of agreement to sell between the parties which was valid up to 21.6.1996. It is alleged that the plaintiff was not present on 21.6.1996 for getting the sale deed executed and registered. The defendant also presented an application before the Sub Registrar for marking his presence. It is alleged that the agreement in question has become infructuous and the earnest money is fore-feited. The defendant denied the subsequent writing dated 24.6.1996 and receipt of Rs. 2.50,000/-. It is alleged that one Prabhjot Singh, property-dealer got his signatures on the front page of the agreement and on its back page. It is further alleged that the said property dealer and the plaintiff-Vishal Garg have played a fraud upon the defendant. From the pleadings of the parties, the following issues were framed o n 15.10.1996 :- 1. Whether the defendant executed a writing dated 24.6.1996 in favour of the plaintiff extending period of sale deed upto 24.11.1996 and received Rs. 2,50,000/- from the plaintiff out of the balance sale price? 2. Whether the plaintiff has all along been ready and willing to perform his part of contract? OPP 3. Whether the writing dated 24.6.1996 is result of fraud as alleged by the defendant? OPP RSA No. 4568 of 2011 3 4. Whether the suit is not properly verified according to law? If so, its effect? OPD 5. Relief On 9.6.1998, another following issue was framed: 5.Whether the plaintiff is entitled to specific performance of the impugned agreement for sale? OPP On 13.8.1999, two additional issues were also framed, which are as under:- 5. Whether the plaintiff is entitled to the decree of specific performance of the agreement dated 20.5.1996 and 24.6.1996? OPP 6. Whether in the alternative, plaintiff is entitled to recover Rs. 6 lacs from the defendant? OPP” The Ld. Trial Court while deciding issue Nos.1,and 3; issue No. 5 framed on 9.6.1998 and issue No. 5 framed on 13.8.1999, observed that the defendant has executed writing dated 24.6.1996, whereby the date of execution of the sale deed was extended upto 21.11.1996, and that the defendant has failed to prove that the writing was the result of fraud. Thus the plaintiff was held entitled to a decree of specific performance of the agreement dated 20.5.1996, and endorsement dated 24.6.1996 and all these issues were decided in favour of the plaintiff and against the defendant. Issue no.2 was held to be redundant. In view of the detailed findings on the issues, the suit of the plaintiff was decreed as prayed for. Aggrieved against the judgment and decree of the learned Civil Judge, the defendant came up in the appeal which was dismissed by the Additional District Judge, Patiala, on 9.8.2011. RSA No. 4568 of 2011 4 Dis-satisfied with the judgments and decrees of the courts below, the defendant Piara Lal preferred this regular second appeal challenging the judgments and decrees of the courts below. Learned counsel for the appellant argued that Vishal Garg, the plaintiff himself did not appear in the witness box to support his case. Rather, his General power of Attorney Subhash Chander Singla appeared as PW1. He argued that non-appearance of plaintiff himself de-bar the plaintiff to claim relief as adverse inference is to be drawn against him. He further argued that the defendant was always ready and willing to perform his part of the contract. He further argued that the endorsement on the back side of the agreement extending the period of execution and registration of the sale deed is an act of fraud committed by the property dealer along with the plaintiff Vishal Garg. I have heard the learned counsel for the appellant and perused the file. So far as the main agreement, Ex.P-2 is concerned, the execution of the same is admitted by the defendant-Piara Lal. Rather the case of the defendant is that he was present for execution and registration of the sale deed on the last date of the agreement. Apart from this admission, the agreement is proved by PW-2 Prabhjot Singh, an attesting witness and PW-3 Mrs. Krishna Kamboj, Stamp Vendor. Even in his statement, defendant while appearing as DW-1, admitted the execution of the agreement and receipt of Rs. 50,000/- as earnest money. The defendant is contesting the case merely on the ground that he did not extend the date for execution of the sale deed, on one hand, he is admitting the signatures on the back side of the agreement underneath the endorsement extending the RSA No. 4568 of 2011 5 period of limitation. On the other hand, he is denying the contents of the endorsement, which he cannot be allowed to do so. As per the defendant, when he signed the endorsement, it was a blank space and nothing was written thereon. Keeping in view the fact that the defendant has admitted the signatures on the instrument, it is presumed that he is also aware of the contents of the documents. Dr Atul Kumar Singla, DW3, the Document Expert produced by the defendant categorically admitted that agreement Ex.P.2, and endorsement Ex.P.5, are written by one and the same person. So far as drawing of an adverse inference against the plaintiff is concerned, Mr. Subhash Chander Singla, PW-1, attorney of the plaintiff was cross- examined at length. He was fully aware of the facts of the case. If the attorney is answering each and every query during cross-examination suggested by the opposite party and no evasive reply is made concealing anything, then no adverse inference can be drawn against the party for whom he is appearing. So far as question of readiness and willingness of the performance of the contract is concerned, the defendant in his statement has stated that he is still ready and willing to get the sale deed executed and registered. The defendant never applied for obtaining income tax clearance certificate from the Income tax department. On the last date of extension period, admittedly the defendant did not go to the office. There is sufficient evidence on record that the plaintiff was ready and willing and was still ready and willing to perform his part of the contract. It is a clear case where the defendant, the proposed vendor has avoided the contract. From the perusal of the judgments of both the courts below, it is established that the plaintiff has fully proved his case. The findings RSA No. 4568 of 2011 6 arrived at by both the courts below are concurrent findings of fact. No justification is made to interfere in the same. No question of law, much less a substantial question of law arises in this appeal. Accordingly the same is dismissed in limine. The decrees and judgments of both the courts below are affirmed. No order as to costs. (JITENDRA CHAUHAN) 16.12.2011 JUDGE MS