R.S.A.No. 1576 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1576 of 2008 (O&M) Date of decision: 24.10.2009 Raj Rani ......Appellant Versus Harjeet Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Kanwaljit Singh, Sr.Advocate with Ms.Preeti, Advocate, for the appellant. Mr.Ashwani Talwar, Advocate, for the respondent. **** SABINA, J. Plaintiff Harjeet Singh filed a suit for possession by way of specific performance, which was decreed by the Civil Judge (Jr.Divn.), Jagadhri vide judgment and decree dated 2.9.2006. In appeal, the said judgment and decree were upheld by the District Judge, Yamuna Nagar vide judgment and decree dated 8.4.2008. Hence, the present appeal by the defendant. R.S.A.No. 1576 of 2008 (O&M) 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 5 of its judgment, are as under:- “2. It is the case of respondent/plaintiff Harjeet Singh that Smt.Raj Rani, the appellant/defendant, is owner of a house bearing plot No.9 measuring 111 sq. yards in all, comprised in khasra No.11/12, village Mamidi, Ram Nagar Colony, Camp, Yamuna Nagar. The house consists of three rooms, two kitchens, a bath and a toilet. She had agreed to sell the house in question to the respondent/plaintiff for the consideration of Rs.3,55,000/- only and had executed the agreement to sell on July 24, 2001 after receiving a sum of Rs.50,000/- in cash as earnest money. The sale deed was to be executed on or before December 18, 2001. 3. It has been urged by the respondent/plaintiff that he was always ready and willing to perform his part of the agreement but the appellant/defendant unlawfully backed out. He waited in the office of the Sub Registrar, Jagadhri during the working hours on the appointed day of December 18, 2001 with the balance consideration amount but Smt.Raj Rani did not show up. He then issued a notice on 22.12.2001 to come forward and perform her part of the agreement but she continued putting off the matter on one pretext or the R.S.A.No. 1576 of 2008 (O&M) 3 other. However, she completed backed out of the deal in the second week of the month of January, 2003 thereby giving to him a fresh cause of action to file the suit. 4. It has been urged on behalf of appellant/defendant Raj Rani that she had never entered into an agreement to sell her house to plaintiff Harjeet Singh and as such the agreement dated 24.7.2001 is a forged document. The respondent/plaintiff had forged her signatures on the document in collusion with the alleged attesting witnesses. In fact, plaintiff Harjeet Singh is in the habit of fabricating such documents. It has been further urged by Smt.Raj Rani that she is an old and illiterate housewife who has week eyesight and is also hard of hearing. She had never executed the receipt. She had never received the earnest money amount of Rs.50,000/-. Since she was not a party to the execution of the alleged agreement to sell the house, the question of her being ready and willing to perform her part of the agreement would not arise at all. 5. It has been further urged on behalf of appellant/defendant Raj Rani that she is a rich lady who has three sons who are doing fairly good in their R.S.A.No. 1576 of 2008 (O&M) 4 business. One of her sons is permanently settled at a place called Dehradun. She had gone to live with him on June 20, 2001 and she had returned to Jagadhri in the month of September that year. Since she was not present at Yamuna Nagar- Jagadhri on 24.7.2001, she could not have executed the document at the twin towns on that day.” On the pleadings of the parties, following issues were framed by the trial Court:- “1., Whether the plaintiff is entitled for possession by way of specific performance of the agreement to sell as alleged? OPP 2. Whether the plaintiff is entitled for the relief of permanent injunction sought? OPP 3. Whether the suit is not maintainable? OPD 4. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. The plaintiff had filed a suit for specific performance of agreement to sell dated 24.7.2001. In order to prove his case, plaintiff examined PW-1 Purshotam Kumar to prove the signatures of defendant on the saving accounts card Ex.P-8. PW-2 Hari Om Goel, proved the registered sale deed dated 24.7.1992 Ex.P-9, which was R.S.A.No. 1576 of 2008 (O&M) 5 duly signed by Raj Rani. DW-3 D.R.Dabra, Advocate also identified the signatures of defendant on registered sale deed Ex.P-9, vide which the defendant had purchased the plot in dispute. The plaintiff himself appeared in the witness box and deposed as per the contents of the plaint. PW-5 Rawal Dass, attesting witness, corroborated the statement of the plaintiff with regard to execution of the agreement to sell and the receipts Ex.P-1 and Ex.P-2 respectively. The plaintiff in order to prove that he was ready and willing to perform his part of the contract, proved on record his affidavit Ex.P-3, duly attested by Executive Magistrate, Jagadhri to establish that he had remained present on 18.12.2001, the date fixed for execution of the sale deed, in the office of Sub Registrar with balance sale consideration. A notice was also served on the defendant for execution of the sale deed Ex.P-4. The defendant, on the other hand, denied the execution of the agreement to sell. Both the Courts below, after appreciating the evidence on record, have given a finding of fact that the plaintiff had been successful in proving his case, whereas, the defendant had failed to rebut the evidence led by the plaintiff. During the course of arguments, learned counsel for the appellant, has placed reliance on the decision of the Apex Court in Bal Krishna and another v. Bhagwan Dass (dead) and others 2008 (2) RCR (Civil) 732 , wherein it was held that a bare averment in the plaint or a statement made in the examination-in-chief was not R.S.A.No. 1576 of 2008 (O&M) 6 sufficient to hold that the plaintiff was ready and willing to perform his part of the contract. No specific performance of contract can be granted if it would give an unfair advantage to the plaintiff. However, the said decision fails to advance the case of the appellant as it is based on different facts. The plaintiff also proved on record his affidavit Ex.P-3 to establish his presence in the office of the Sub Registrar on 18.12.2001 to prove that he was ready and willing to perform his part of the contract. It is not a case of mere averment in the plaint that the plaintiff was ready and willing to perform his part of the contract. In the present case, the plaintiff had been successful in proving his case and the defendant had failed to make out a case that grant of specific performance would give an unfair advantage to the plaintiff. A perusal of the written statement reveals that it was averred by the defendant that she was a rich lady and with three sons having good business and consequently, there was no question of selling the residential house in which she was residing with her sons. Since, defendant herself has alleged that she was a rich lady then it cannot be said that the agreement to sell would result in unfair advantage to the plaintiff. The agreement to sell in question is duly executed by the defendant and in these circumstances, both the Courts below rightly decreed the suit of the plaintiff for specific performance of the agreement to sell. Learned counsel for the appellant has further placed R.S.A.No. 1576 of 2008 (O&M) 7 reliance on the decision of this court in Prem Raj and another v. Smt. Darshasna and other 2007 (1) RCR (civil) 681, wherein it was held that readiness and willingness could not be said to be proved where the purchaser himself was seeking extension of time for execution of agreement to sell. The said case also fails to advance the case of the appellant because in the present case, the plaintiff had not sought extension of time for execution of the sale deed rather plaintiff remained present in the office of Sub Registrar for execution of the sale deed and the defendant had failed to appear to perform her part of the contract. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 24, 2009 anita