R.S.A. No. 2127 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2127 of 2009 Date of Decision : 22.5.2009 Pirthi Singh .......... Appellant Versus Kehar Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Yogesh Goyal, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 6330-C of 2009 This is an application under Section 5 of the Limitation Act for condoning the delay of 3 days in filing the appeal. It has been averred in the application that the appeal was filed within time, however, for want of requisite court fee the appeal was returned, which was subsequently refiled by affixing the court fee. In this process 3 days delay has occurred in filing the appeal. The delay is unintentional and due to bona fide mistake. The averments made in the application make out a sufficient cause for condoning the delay of 3 days in filing the appeal Consequently, this application is allowed, delay of 3 days in R.S.A. No. 2127 of 2009 2 filing the appeal is condoned. C.M. stands allowed. R.S.A. No. 2127 of 2009 & C.M. No. 6331-C of 2009 This regular second appeal is directed against the judgment and decree dated 13.2.2009, passed by the learned Addl. District Judge, Kaithal, decreeing the suit for recovery of Rs. 1,50,000/- (Rupees one lac and fifty thousand only ) along with interest @ 7.5% per annum from the date of agreement of sale till realization. The admitted facts are that the defendant / appellant entered into an agreement to sell being attorney of respondent No.6 / proforma respondent. The suit was filed by the plaintiff / respondent for specific performance of agreement to sell and in alternative the prayer was made for refund of the double amount received by the defendant / appellant under the agreement to sell. The learned Courts below on appreciation of evidence have recorded a concurrent finding of fact, that the defendant / appellant had entered into an agreement to sell with the plaintiff, and was paid earnest money of Rs. 1,50,000/- (Rupees one lac and fifty thousand only ). The learned Courts below did not go into the question of willingness of the plaintiff / respondent to execute the contract, as it was proved, that the power of attorney on the basis of which the agreement to sell was executed, did not authorize the defendant / appellant to sell. The power of attorney R.S.A. No. 2127 of 2009 3 was permitting him only to represent respondent No.6, in the partition proceedings, which were pending between the parties. The learned Courts below, therefore, rightly held, that the suit for specific performance could not be decreed for want of authority with the defendant / appellant. The learned Courts below held, that the contract was void. The learned Courts below applied Section 65 of the Indian Evidence Act to hold that as the contract has been found to be void and the party getting the benefit under the contract was bound to restore the benefit received to other party. The Court also noticed that the principle of law is based on principle of equity, that no one can be allowed to take advantage under the void agreement. The alternative relief of refund with interest has been granted. The learned counsel for the appellant contends that the appeal raises the following substantial questions of law :- 1. Whether the learned Courts below could have decreed the suit for recovery in absence of finding as to whether the plaintiff / respondent was willing to perform his part of contract ? 2. Whether the learned Courts below failed to notice that the signatures of the defendant / appellant was obtained by misrepresentation as there was no intention to sell the land ? In support of the substantial questions of law the learned counsel appearing on behalf of the appellant contends, that in order to succeed in a suit for specific performance, the plaintiff / respondent was R.S.A. No. 2127 of 2009 4 required to prove not only the due execution of the agreement to sell, but also, that he was always willing and still willing to perform his part of contract. Once the factum of willingness was not prove the plaintiff / respondent could not be granted any relief under the contract. It is also the contention of the learned counsel for the appellant, that it was on account of relationship of the parties as co-sharer, that the plaintiff / appellant signed the agreement without it having been read over and explained to him. Therefore, no reliance could be placed on the agreement. The learned Courts below, therefore, erred in law in decreeing the suit filed by the plaintiff / respondent for alternative relief claimed. On consideration of the matter, I find no force in the contention raised by the learned counsel for the appellant. The learned Courts below have rightly held, that the question of willingness of the plaintiff / respondent to execute the contract was irrelevant as the defendant / appellant had no right to transfer the land as power of attorney executed by respondent No.6 i.e. owner, no such authority was given for sale of land. The other argument of the learned counsel for the appellants also deserves to be rejected, as once it was proved, that the agreement was signed by the defendant / appellant, as attorney of defendant No.2, it was for him to prove, that it was without consideration or that it was not executed and was forged document. However, no evidence was led to deny the execution of agreement. The learned Courts below have rightly came to the conclusion, R.S.A. No. 2127 of 2009 5 that as the contract was held to be void the defendant / appellant could not retain benefit taken under the agreement and decreed the suit for alternative relief of refund with interest as compensation. The substantial questions of law raised are answered against the appellant. No merit. Dismissed in limine. 22.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE