IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1140 of 2011 (O&M) Date of decision: 9th September, 2011 Bhagwani Devi … Appellant Versus Bimla Devi … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Shiv Kumar, Advocate for the appellant. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present appeal has been filed by defendant to the suit. Respondent-plaintiff had filed a suit for specific performance praying that appellant-defendant has not performed her part of the agreement to sell dated 11th October, 2003 and has not come forward to execute the sale deed of the shop, detail and description whereof was given in the plaint. It was specifically pleaded by the respondent-plaintiff that she was in actual physical possession of the demised shop for the last 18 years and on 11th October, 2003 an agreement to sell was executed by the defendant-owner of the shop in favour of the plaintiff-in possession of the shop. As per the agreement to sell, the shop was to be sold for a consideration of Rs.35,000/-. The entire payment was made and a receipt to this effect was also executed. It was specifically stated that appellant-defendant was bound to obtain necessary No Objection Certificate from the Municipal Corporation but she had not obtained the Regular Second Appeal No.1140 of 2011 (O&M) same and had not come forward to execute the sale deed in terms of the agreement to sell dated 11th October, 2003. Notice of the suit was issued. Upon appearance, appellant- defendant filed written statement through her general power attorney, i.e. her husband namely Suresh Ahuja. A categoric defence was taken by the appellant-defendant that her signatures on the agreement to sell and the receipt were obtained by playing a fraud and it amounted to an act of cheating. It was stated that on 11th October, 2003, the suit titled as ‘Bhagwani Devi v. Bimla Devi’ was pending in the Court of Civil Judge (Junior Division), Faridabad and on that date, i.e. 11th October, 2003 a compromise was arrived at between the parties qua the suit already pending and on that pretext by playing a fraud and act of cheating signatures of the appellant-defendant were obtained on some blank papers. The trial Court, after conclusion of the pleadings, formulated following issues: “1. Whether the plaintiff is entitled to get the possession of the shop in question by way of specific performance of contract dated 11.10.2003? OPP 2. Whether the plaintiff has no cause of action to file the present suit? OPD 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the plaintiff has not come to the Court with clean hands? OPD 5. Whether the suit of the plaintiff is not maintainable in the present form? OPD 6. Whether the suit is barred u/s 35A CPC? OPD 7. Relief.” 2 Regular Second Appeal No.1140 of 2011 (O&M) The respondent-plaintiff herself appeared as PW-1 and also examined Tara Chand, Attesting Witness of the agreement to sell as PW-2. She had tendered various documents which were exhibited as Ex.P1 to Ex.P6. On behalf of the appellant-defendant, Suresh Ahuja, GPA of the appellant-defendant, appeared as DW-1. The trial Court examined the evidence threadbare, returned the following finding: “10. … … … However, no cogent evidence has been produced by defendant to prove this fact. Mere oral testimony of her attorney that signatures were taken by mis-representation, is not sufficient to prove her case. As the plaintiff has succeeded in proving agreement to sell and receipt and has shown her readiness and willingness to perform her part of contract… … …” This finding returned by the trial Court has been affirmed by the lower appellate Court. Both the courts below have not found the evidence of the appellant-defendant to be trustworthy and have discarded the same. Mr. Shiv Kumar, Advocate appearing on behalf of the appellant, has stated that there are various circumstances available on the record for the courts below to give credence to the evidence of the appellant-defendant and reject the evidence of the respondent-plaintiff. I am afraid, this Court in regular second appeal cannot tread on the path of re-appreciation and re-appraisal of the evidence. Both the courts below have formulated a view which is possible on the facts of the case. Thus, this Court will not disturb the view formulated by the 3 Regular Second Appeal No.1140 of 2011 (O&M) courts below simply because another view is possible by looking at the evidence of the parties in other way. Hence, no interference is warranted in the present appeal, especially when during the course of arguments no question of law much less a substantial one has been raised for consideration of this Court, and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE September 9, 2011 rps 4