R.S.A. No.4843 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.4843 of 2010(O&M) Date of Decision:11.07.2011 M.C.Chhabra ......Appellant Versus Shakuntala Devi .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Ashok Giri, Advocate, for the appellant. **** M EHINDER S INGH S ULLAR , J.(oral) As the Courts below duly recapitulated and described the factual matrix of pleadings and evidence brought on record by the parties in detail, therefore, there appears to be no necessity to again reproduce and repeat the same. However, the epitome of the facts, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record is, that M.C.Chhabra son of Neta Ram-appellant-plaintiff(hereinafter to be referred as “the plaintiff”) filed the suit against Smt.Shakuntala Devi wife of Raj Pal-respondent-defendant (for brevity “the defendant”) for a decree of possession by way of specific performance of the agreement to sell dated 27.06.2000, in respect of the house in dispute. 2. The case set up by the plaintiff, in brief, insofar as relevant was, that the defendant entered into an agreement to sell dated 27.06.2000 of her house in question, for a total consideration of Rs.2,50,000/- and received Rs.1,00,000/- as earnest money. The sale-deed was to be executed on or before 31.12.2000, on receipt of balance sale consideration of Rs.1,50,000/-, which was subsequently extended up to 05.11.2001. He asked the defendant several times to execute and R.S.A. No.4843 of 2010 2 register the sale-deed, but in vain. It was claimed that the plaintiff remained ready and willing and was still ready and willing to perform his part of the contract, but the defendant was putting off the matter on one pretext or the other, despite legal notice dated 29.10.2001 issued to her. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of possession by way of specific performance of the agreement to sell dated 27.06.2000 against the defendant, in the manner indicated hereinabove. 3. The defendant contested the suit and filed the written statement, inter alia, pleading that she neither received Rs.1,00,000/- as earnest money, nor agreed to execute the sale-deed, as alleged. She never wanted to sell her residential house, the value of which was more than Rs.8,00,000/- at the relevant time. The defendant claimed that the plaintiff is running a cloth shop at Tripuri Town, Patiala, and is a money-lender. She(defendant) and her husband used to purchase cloth on credit from the plaintiff from time to time and used to pay him the amount thereof in installments. In the month of June 2000, the plaintiff was stated to have told the defendant that Rs.10,000/- remained due towards her and got some writings from the defendant executed. 4. The case of the defendant further proceeds that, a false case was registered against her husband by the police of Police Station Sadar, Patiala, by means of FIR No.502 dated 27.06.2000, in which the police tried to arrest her and her husband. They approached the plaintiff for help to avoid arrest and he (plaintiff) after approaching the police, settled the bargain at Rs.15,000/-, which the defendant and her husband were unable to pay and on their request, the plaintiff paid the said amount and for repayment of Rs.15,000/-, he(plaintiff) obtained her thumb impression and the signatures of her husband on certain papers and registers. The balance amount of Rs.10,000/- as price of the cloth purchased, was stated to have been paid to the plaintiff by the defendant. According to the defendant, two other false cases were also registered against her husband vide FIR R.S.A. No.4843 of 2010 3 Nos.685 and 691 dated 16.11.2000 in Police Station Samana, in which he was arrested on 24.11.2000 and was released on bail. The plaintiff helped the defendant for release of her husband and told that he has spent Rs.10,000/- in this respect. Again, the plaintiff obtained the thumb impression of the defendant and signatures of her husband on certain papers and registers in the second week of December, 2000 as well. 5. Levelling a variety of allegations and narrating the sequence of events, in all, according to the defendant, she neither executed any agreement to sell, nor received any earnest money and if the plaintiff has created any such agreement, that is a result of fraud, misrepresentation, coercion, undue influence and is ineffective on her rights. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 6. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. 7. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- “1. Whether the defendant entered into an agreement to sell dated 27.6.2000 for selling her house and received an earnest money of Rs.1 lac and subsequently received Rs.50,000/- on 27.12.2000?OPP 2. Whether the plaintiff remained ready and willing to perform his part of agreement and he is still ready and willing to perform his part of the agreement dated 27.6.2000?OPP 3. If issue Nos.1 and 2 are proved, whether the plaintiff is entitled for possession of disputed house by way of specific performance of agreement to sell dated 27.6.2000?OPP 4. Whether the plaintiff is entitled to permanent injunction as prayed for?OPP 5. Whether the agreement to sell is result of fraud, misrepresentation, coercion and undue influence?OPD 6. Relief.” R.S.A. No.4843 of 2010 4 8. The parties to the litigation in order to substantiate their respective pleas, brought on record oral as well as the documentary evidence. 9. The trial Court, after taking into consideration the entire oral as well as the documentary evidence brought on record by the parties, has held that there was absolutely no occasion for the defendant to execute agreement to sell with free mind, nor it can be inferred that the plaintiff did not influence the mind of the defendant for execution of the agreement to sell in dispute. It was further held by the trial Court that the plaintiff would be entitled to refund of earnest money with interest and dismissed his suit for specific performance, by virtue of impugned judgment and decree dated 04.01.2008. 10. Aggrieved by the impugned judgment and decree of the trial Court, the plaintiff filed the appeal, which was dismissed as well by the first appellate Court by means of impugned judgment and decree dated 20.09.2010. 11. The appellant-plaintiff still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeal. 12. Having heard the learned counsel for the appellant-plaintiff, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal. 13. Ex facie, the argument of the learned counsel that since the execution of agreement to sell in question and the payment of earnest money are duly proved, so, the Courts below fell in error in dismissing the suit of the plaintiff for specific performance, is not only devoid of merit but misconceived as well. 14. As is evident from the record, the plaintiff claimed that the defendant executed agreement to sell dated 27.06.2000 and received Rs.1,00,000/- as earnest money and she(defendant) agreed to sell her residential house for a total consideration of Rs.2,50,000/-. On the contrary, according to the defendant, she never executed any agreement to sell, which is stated to be a result of fraud, R.S.A. No.4843 of 2010 5 misrepresentation, coercion, undue influence and is ineffective on her rights. It was explained that the plaintiff has obtained her signatures on blank papers in lieu of balance amount of cloth price, to be paid to him and the amount paid by the plaintiff to help her in releasing her husband on bail, in the criminal cases, in the manner, indicated hereinabove. 15. It is not a matter of dispute that the agreement to sell in question is dated 27.06.2000, whereas a criminal case vide FIR No.502 dated 27.06.2000 (Ex.P16) was registered against the husband of the defendant, which corroborates her case in this regard. It is also proved on record that another case, FIR(Ex.P.17) was registered against him. In that eventuality, the trial Court has rightly held that there was no occasion for the defendant to execute the agreement to sell in question in favour of the plaintiff with free mind, which is result of undue influence and misrepresentation. The trial Court, in this respect, has observed as under:- “But, however, in the case in hand, the plaintiff has tried to play over smart. As a matter of fact, there existed jural relationship between him and the defendant and her husband. The defendant and her husband used to purchase cloth on credit basis from the plaintiff. It has further come on record that there were certain criminal cases registered against the defendant and her husband and the plaintiff helped them and as such the plaintiff was in a position to get an unfair advantage over the defendant. It is the plaintiff who on his own had led evidence to the effect that three criminal cases were registered against the defendant and her husband. Now what was the use of leading such type of evidence in a case for specific performance, it is the plaintiff who can better explain. But the things remain that the plaintiff was definitely in a position to execute his undue influence over the defendant due to his advantageous position. It has come on record that similar agreement to seel Ex.D4 was got executed by the plaintiff from Rajpal, husband of the defendant on 7.6.2000, wherein a sum of Rs.50,000/- is stated to have paid as earnest money. The agreement was executed when the husband of the defendant was involved in another cheque and conviction was almost sure and the R.S.A. No.4843 of 2010 6 defendant wanted to make payment. Taking into account all these circumstances, I am of the opinion that it is not an ordinary case of agreement for sale where performance of agreement has to be enforced and discretion exercised by the trial Court is against the spirit of Section 20 of the Specific Relief Act and the various decision of the Supreme Court referred to earlier. Therefore, I find that the plaintiff is not entitled to get specific performance of the agreement. Hence, in the cas in hand, the alleged agreement to sell pertain to 27.6.2000, when at a time criminal case bearing FIR No.502 dated 27.6.2000, Ex.P16 was registered against the husband of the defendant, while other FIR, copy whereof is Ex.P17 on record was registered on 16.11.2000. In such a situation, there was absolutely no occasion with the defendant to execute agreement to sell dated 27.6.2000 with a free mind, nor it can be inferred that the plaintiff did not influence the mind of the defendant for executing the agreement to sell in dispute. In such a situation, only relief to which the plaintiff would be entitled to is the refund of earnest money with interest only. As such, findings on issue No.1 to 3 are answered accordingly while findings on issue No.5 are answered in favour of the defendant.” 16. Not only that, the decision arrived at by the trial Court has been affirmed by the first appellate Court through the medium of impugned judgment and decree dated 20.09.2010 in this context. 17. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiff, to assail the findings of the Courts below. All the remaining contentions, pertaining to the appreciation of evidence, now sought to be urged on his behalf, have already been duly considered and dealt with by the Courts below, in this relevant direction. 18. Moreover, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded a finding of fact that the agreement to sell in question in favour of the appellant is not executable, in the manner discussed hereinabove. Such pure concurrent finding of fact based on the R.S.A. No.4843 of 2010 7 evidence, cannot possibly be interfered with by this Court, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of the well-reasoned decision arrived at by the Courts below, in this respect. 19. Meaning thereby, the entire matrix revolves around the re- appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, much-less substantial, is involved in the second appeal, in view of the law laid down by Hon'ble the Apex Court in case Kashmir Singh Versus Harnam Singh and another, 2008(2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments and decrees of the Courts below, as contemplated under Section 100 CPC, in the obtaining circumstances of the instant case. 20. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant. 21. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. July 11, 2011 (MEHINDER SINGH SULLAR) seema JUDGE