R.S.A.No. 3932 of 2005 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3932 of 2005 Date of decision: 11.8. 2009 Shalini and others ......Appellants Versus Dhajja Ram .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Arun Jain, Sr.Advocate with Mr.Amit Jain, Advocate, for the appellants. Mr.Akshay Bhan, Advocate and Mr.Santosh, Advocate, for the respondent. **** SABINA, J. Plaintiff Dhajja Ram filed a suit for possession by way of specific performance. Vide judgment and decree dated 17.2.2004 passed by the Civil Judge (Jr.Division), Panipat, main relief sought by the plaintiff for specific performance of agreement to sell dated 23.1.1995 was declined, whereas, alternate relief of recovery of money was partly allowed. In appeal, the said judgment and decree R.S.A.No. 3932 of 2005 2 were set aside by Additional District Judge, Panipat vide judgment and decree dated 29.8.2005 and the suit of the plaintiff was decreed with costs. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. As per the case of the plaintiff, defendants were owners in possession of 39B-8B of agriculture land as detailed and described in the head note of the plaint. They agree to sell the same to him vide agreement to sell dated 23.1.1995 Ex.P-1 @ Rs.2,60,000/- per acre. Rs.6 lac were paid to them in cash as earnest money. The last date to get the sale deed executed and registered was 30.6.1995. Prior to that date, defendants obtained from him Rs. 5Lac more towards sale consideration which amount was paid through a bank draft dated 8.6.1995 making the total payment of Rs.11 lac towards sale consideration, 30.6.1995, 1.7.1995 and 2.7.1995 were public holidays. Therefore, on 3.7.1995, he (plaintiff) went to the office of Sub Registrar, Panipat along with money to pay the balance amount of sale consideration and to meet expenses on execution and registration of sale deed, but the defendant did not turn up. He got his presence marked by swearing an affidavit Ex.P-2 before the Sub Registrar. Further case of the plaintiff is that on R.S.A.No. 3932 of 2005 3 4.7.1995, defendants approached him and showed their readiness to get the sale deed executed and registered if he was ready to purchase their other land also situated adjacent to the land agreed to be sold and demanded Rs.16 lac more. He paid them Rs. 25,30,000/- same day, i.e. on 4.7.1995 through a demand draft and further paid them Rs.3,07,880/- on the same day to purchase stamp papers required for execution of sale deed. In this way, defendants obtained from him Rs.29,37,880/-. Defendants vide an endorsement dated 2.8.1995 Ex.P1/B on the back of agreement Ex.P1 extended the time to get the sale deed executed and registered on the ground that one of the vendors was out of station. While extending the time, no date to get the sale deed executed and registered was fixed. Further case of the plaintiff is that after 2.8.1995, he remained in constant touch with the defendants to get the sale deed executed and registered, but they did not pay any heed to his request. He then sent a legal notice on 29.2.1996 Ex.P-5 to the defendants, requesting them to get the sale deed executed and registered within seven days of the receipt of notice, but they refused to receive said notice. It is further pleaded by the plaintiff that he has always been ready and willing to perform his part of the agreement but R.S.A.No. 3932 of 2005 4 the defendants are not willing to perform their part of the agreement. With these averments, plaintiff brought the present suit to seek the possession of the suit land by way of specific performance of the agreement Ex.P-1 and for refund of extra money paid by him to the defendants which on calculation comes to Rs.8,12,800/-. He also sought recovery of Rs.29,37,880/- with interest as an alternate relief, if he is not found entitled to a decree for possession by way of specific performance for any reason whatsoever. 3. Defendants admitted the execution of agreement to sell Ex.P1. They further admitted that vide said agreement, they agreed to sell the suit land measuring 39 Bighas 8 Biswas to the plaintiff @ Rs.2,60,000/- per acre. They also admitted that they received Rs.3,07,880/- from the plaintiff to purchase stamp papers required to get the sale deed executed and registered. But they alleged that the agreement was executed on 8.6.1995 and not on 23.1.1995 as claimed by the plaintiff. They further alleged that on the day of execution of agreement on 8.6.1995, they had received Rs. 6 lac as earnest money Rs.1 lac in cash and Rs. 5 lac by way of bank draft. They denied the receipt of Rs. 6 lac in cash on 23.1.1995 and receipt of Rs. 26,30,000/- by R.S.A.No. 3932 of 2005 5 way of bank draft on 4.8.1995. They further pleaded that original agreement was retained by the plaintiff after its execution and they were given photocopy thereof Ex.D1. Later on, plaintiff got typed the date of execution of agreement as 23.1.1995 and name of an attesting witness Ram Kumar with some other typewriter with ulterior motive to commit fraud. They also pleaded that it was the plaintiff who refused to get the sale deed executed so the deal was cancelled and for that reason the amount of stamp papers which were purchased on 3.1.1996 was got refunded on 5.1.1996 with the consent of the plaintiff and the plaintiff by way of notice dated 28.10.1996 was asked to receive the amount of Rs.2,77,092/- which amount was received after some deductions, but he did not come forward to accept that amount. With these averments, defendants sought the dismissal of the suit.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether an agreement to sell was entered between the present parties on 23.1.1995 regarding suit land for a consideration of Rs.2,60,000/- per acre as alleged? OPP 2. Whether after the execution of impugned R.S.A.No. 3932 of 2005 6 agreement to sell Rs.6 lacs were received by the defendants as earnest money as alleged? OPP 3. Whether the plaintiff is ready and willing to perform his part of contract as alleged? OPP 4. Whether the present suit is not maintainable in the present form as the same is result of fraud and collusion as alleged in P.O. No.1? OPD 5. Whether the plaintiff has not come to the Court with clean hands and has concealed material facts from the Court? OPD 6. Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD 7. Relief. ” The substantial question of law that arises in this case is “ whether the judgment of the learned Additional District Judge is based on misreading of evidence and is perverse?” Learned senior counsel for the appellants has argued that the lower appellate Court had erred in decreeing the suit of the plaintiff for specific performance. It was evident from the record that there were certain interpolations in the agreement to sell in question Ex.P-1. In fact, agreement to sell was dated 8.6.1995 and not 23.1.1995. As per Ex.P-2, the plaintiff himself had stated that he had paid Rs.6,00,000/- as earnest money to the defendants. Hence, the finding of the trial Court to the effect that Rs.11,00,000/- had been R.S.A.No. 3932 of 2005 7 paid by the plaintiff to the defendants was against the evidence on record. There was also no evidence on record that the plaintiff was ready and willing to perform his part of contract. Learned counsel for the respondent, on the other hand, has submitted that the plaintiff had been successful in proving his case. The plaintiff was always ready and willing to perform his part of contract. There was no interpolations in the agreement to sell in question. The plaintiff had paid Rs.11,00,000/- to the defendants as earnest money. In the present case, suit of the plaintiff was decreed by the trial Court to the effect that he was entitled to receive Rs.6,00,000/- as earnest money paid by him to the defendants. However, the suit for specific performance was declined. Defendants did not file any appeal against the said judgment and decree. The plaintiff filed an appeal claiming that his suit was liable to be decreed for specific performance. The controversy thus involved in this case is to the extent that whether the suit of the plaintiff for specific performance was liable to be decreed. In order to appreciate the rival contentions of the learned counsel for the parties, it is very necessary to examine the agreement to sell in question. A perusal of agreement to sell Ex.P-1 reveals that there are number of cuttings/over writings in the said agreement. Some of the cuttings/over writings have been duly counter signed by the R.S.A.No. 3932 of 2005 8 parties, whereas, some of the over writings have not been counter signed by the parties. The date as well as the name of the witness Ram Kumar have been typed with a different typewriter. Photocopy of the agreement to sell Ex.D-1 reveals that the date was not mentioned in the agreement to sell although it has been signed by the parties. Similarly the name of the witness Ram Kumar is not mentioned therein. The case of the plaintiff is that he had paid Rs.11,00,000/- as earnest money. However, the said version of the plaintiff is falsified by Ex.P-2, which is the affidavit sworn by the plaintiff on 3.7.1995. A perusal of the same reveals that the plaintiff had paid Rs.6,00,000/- as earnest money and the sale deed was to be executed on or before 30.6.1995. Since 30.6.1995, 1.7.1995 and 2.7.1995 were holidays, plaintiff presented himself before the Sub Registrar on 3.7.1995 for registration of sale deed. This is the document placed on record by the plaintiff himself but the lower appellate Court has failed to take into consideration the implication of the said affidavit while coming to the conclusion that the defendants had taken Rs.11,00,000/- in all from the plaintiff towards sale consideration. It is a common saying that man may tell a lies but the documents do not. In the presence of the documentary evidence, the finding of the learned lower appellate Court that the plaintiff had paid Rs.11,00,000/- to the defendants is perverse. The affidavit Ex.P-2 was executed on 3.7.1995. However, a perusal of the copy of the draft mark 'PY' reveals that the same R.S.A.No. 3932 of 2005 9 was prepared on 4.7.1995 in favour of defendant No.1. The said draft is for a sum of Rs.15,30,000/-. This also lends support to the plea of the defendants that only Rs.6,00,000/- were paid as earnest money. Learned senior counsel for the appellants has drawn my attention towards Ex.D-17, wherein the total amount of sale consideration is mentioned as Rs.21,34,600/-. Apparently since only Rs.6,00,000/- had been paid towards the earnest money, plaintiff got prepared a draft of remaining amount of Rs. 15,30,000/-. Since the draft in question was got prepared on 4.7.1995, it could not be said that the plaintiff was ready and willing to perform his part of the contract on 3.7.1995 and was present in the office of the Sub Registrar along with balance sale consideration. The plaintiff in his cross-examination has deposed that on the date the agreement to sell was executed he had not paid any earnest money. He had further deposed that he was present in the office of the Sub Registrar along with a draft of Rs.15,00,000/-. Since the plaintiff was claiming a discretionary relief of specific performance, he was expected to come to the Court with clean hands. However, from the evidence discussed above, it cannot be said that the plaintiff was entitled to claim the relief of specific performance of agreement to sell. The substantial question of law that arises in this appeal thus answered in affirmative. Consequently, this appeal is allowed. The impugned R.S.A.No. 3932 of 2005 10 judgment and decree dated 29.8.2005 passed by the Additional District Judge are set aside. (SABINA) JUDGE August 11, 2009 anita