R.S.A. No. 2434 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2434 of 1985 Date of decision: 01.07.2010 Jawahar and another ....Appellants versus Parbhu ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Alok Jain, Advocate, for the appellants. Mr. Sudhir Mittal, Advocate, for the respondent. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 7.5.1985 passed by the learned lower appellate Court, vide which the suit filed by the plaintiff/respondent was decreed by reversing the judgment of the learned trial Court. The brief facts of the case are, that the plaintiff/respondent entered into an agreement with appellant/defendant No.1, who was owner of the property, on 25.6.1976. It was pleaded by the plaintiff/respondent that the appellant/defendant No.1 had agreed to sell the suit property for consideration of Rs.9,050/- (Rupees nine thousand and fifty only), and on the date of execution of the agreement to sell, a sum of Rs.7,000/- (Rupees seven thousand only) was paid as earnest money. The sale deed was agreed to be executed on 24.6.1978 on receipt of balance payment of Rs.2,050/- (Rupees two thousand and fifty R.S.A. No. 2434 of 1985 -2- only). The expenses for execution and registration of sale deed were to be borne by the plaintiff/respondent. It was stipulated that on failure of the defendant to execute the sale deed, the plaintiff would have right to get the sale deed executed and registered through civil court and in the event of default on the part of the plaintiff/respondent the earnest money was to be forfeited. It was also pleaded that plaintiff/respondent on 24.6.1978 went to the office of the Sub Registrar, Fatehabad, and waited for appellant/defendant No.1 along with balance sale consideration, but the appellant/defendant No.1 did not turn up with the result that the plaintiff/respondent returned back without getting the sale deed executed. It was pleaded that the plaintiff/respondent was always and still willing to perform his part of the contract. Whereas appellant/defendant No.1 failed to perform his part of the contract. The suit was contested by filing a joint written statement, where the execution of the agreement in question was denied. Defendant No.1 also denied having received any earnest money of Rs.7,000/- (Rupees seven thousand only) as alleged in the plaint. He denied having thumb marked the agreement and, therefore, denied that he was required to be present in the office of the Sub Registrar on 24.6.1978. It was the case of appellant/defendant No.1, that the suit land was transferred in favour of appellant/defendant No.2 under the family settlement. Plea that the suit was time barred was also taken. It was also the case of appellant/defendant No.1 that he was illiterate and simple person and the plaintiff/respondent might have obtained his thumb impression by fraud. Other preliminary objections were also taken. It was also the case of the appellant/defendant No.1 that the land in question was mortgaged with R.S.A. No. 2434 of 1985 -3- the Primary Land Development Bank, Fatehabad, for a sum of Rs.10,000/- (Rupees ten thousand only) and entry in this regard was incorporated in the jamabandi for the year 1975-76. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether defendant No.1 entered into an agreement to sell the suit land in favour of the plaintiff on 25.6.76 and received Rs.7000/- as earnest money? OPP 2. Whether the plaintiff has always been willing and ready to perform his part of contract? OPP 3. Whether the judgment and decree dated 7.4.81 passed in suit No.260 of 1981 are not binding on the rights of the plaintiff? OPP 4. Whether the suit is time barred? OPD 5. Relief.” On appreciation of evidence, the learned trial Court recorded a finding that agreement to sell was sufficiently proved by the plaintiff/respondent and the attesting witnesses, therefore, recorded a finding that appellant/defendant No.1 had executed agreement to sell on 25.6.1976 and had received a sum of Rs.7,000/- (Rupees seven thousand only) as earnest money. On issue No.2, the learned trial Court held, that the plaintiff failed to prove that he was always ready and willing to perform his part of the contract, whereas issue No.3 was decided in favour of the plaintiff/respondent, and the decree in favour of defendant No.2 was held to be not binding on the rights of the plaintiff. On issue No.4, the suit was held to be within limitation. R.S.A. No. 2434 of 1985 -4- However, in view of the finding on issue No.2, the suit filed by the plaintiff/respondent was dismissed. The learned trial Court on issue No.2 had held that as the plaintiff/respondent failed to specifically plead and prove that he had tendered the money to appellant/defendant No.1 on a particular date and demanded the transfer of property by instrument, therefore, the plaintiff had failed to prove willingness to perform his part of the contract. The plaintiff/respondent went in appeal and the only question raised in appeal was, whether the plaintiff was able to prove that he was always and still willing to perform his part of the contract. The learned lower appellate Court reversed the finding on issue No.2 for the reason that the plaintiff/respondent in his examination-in-chief had stated that he had attended the office of the Sub Registrar on 24.6.1978 along with balance sale consideration, was not rebutted, therefore, there was sufficient compliance of Forms No.47 and 48 of the Code of Civil Procedure and the willingness of the plaintiff/respondent to perform his part of the contract stood proved, as it was not necessary for the plaintiff/respondent to offer money to the appellant/defendant No.1 once his willingness was proved. The learned lower appellate Court further recorded a finding that it stood established that the plaintiff/respondent had not only averred but had also proved that he had been ready and willing to perform his part of the contract and consequently reversed the finding. The learned lower appellate Court rejected the contention of the appellant/defendant No.1 that the agreement was not proved and consequently decreed the suit. R.S.A. No. 2434 of 1985 -5- Mr. Alok Jain, learned counsel, appearing on behalf of the appellants, contended that this appeal raises the following substantial questions of law: - “1. Whether the finding of the learned lower appellate Court on issue No.2, holding that the plaintiff/respondent had proved his willingness to perform his part of the contract, is based on mis- reading of evidence, therefore, perverse? 2. Whether the finding of the learned Courts below holding that the agreement was duly executed, is outcome of mis-reading of the agreement Ex.P-1, therefore, not sustainable?” In support of the substantial questions of law, referred to above, the learned counsel for the appellants vehemently contended, that even though as per the case set up by the plaintiff/respondent, the date of execution was fixed as 24.6.1978 but the suit was instituted only on 18.7.1981, and the plaintiff had failed to lead any evidence or plead as to what steps he had taken to get the sale deed executed from 1978 till 18.7.1981, when the suit was filed. In support of this contention reliance was placed on the judgment of the Hon'ble Supreme Court in N.P. Thirugnanam (Dead) by LRs. Vs. Dr. R. Jagan Mohan Rao, AIR 1996 SC 116, wherein the Hon'ble Supreme Court was pleased to lay down, that in order to adjudicate whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The plaintiff is required to prove that amount of consideration, which he had to pay to the defendant must of necessity R.S.A. No. 2434 of 1985 -6- be proved to be available right from the date of execution till the date of decree. He is also to prove that he was ready and always willing to perform his part of the contract. The Hon'ble Supreme Court was pleased to lay down that the Court is to infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The learned counsel for the appellants thereafter contended, that in the present case there was absolutely no evidence on record to prove that the plaintiff was ready and willing to perform his part of the contract as he neither tendered the amount nor issued any notice to the appellant till the filing of the suit for execution of the sale deed. The plea raised was, that the statement of the plaintiff in absence of any other evidence, that he was ready and willing to perform his part of the contract, could not be accepted as gospel truth, specially when the plaintiff in his statement had categorically stated that he had moved an application before the Sub Registrar on 24.6.1978 showing his presence for registration of the sale deed, but no such application was proved or placed on record, thus, the best evidence was withheld, therefore, adverse inference was required to be drawn against the plaintiff/respondent. The finding of the learned lower appellate Court on issue No.2, therefore, was outcome of mis-reading of evidence, therefore, perverse. In support of this contention, learned counsel for the appellants placed reliance on the judgment of this Court in Gurdial Sarup Vs. Kaushalaya Kapur and others, 2003(2) RCR (Civil) 374, wherein this Court was pleased to lay down as under: - R.S.A. No. 2434 of 1985 -7- “9. From a perusal of the above, it would be clear that even though in the replication, the plaintiff had admitted that the house in question was under pledge with the Cooperative Bank and a substantial amount was required to be paid to the Bank, but when the plaintiff appeared in the witness box, he denied having knowledge about the house being under pledge with the bank. In my opinion, the learned Additional District Judge rightly found that no reliance could be placed on the testimony of the plaintiff that he was always ready and willing to perform his part of the contract. I am further of the opinion that the learned Additional District Judge had rightly found that if the plaintiff had been present in the office of Sub Registrar on 30.12.1977, he could have got his presence marked with the Sub Registrar by moving an application or otherwise. However, nothing of the kind was done. Instead, an affidavit was sworn by the plaintiff, attested by an Oath Commissioner, which is neither here nor there. In my opinion, the teamed Additional District Judge had rightly found that the plaintiff was not ready and willing to perform his part of the contract. I am further of the opinion that the learned trial Court had erred in law in holding that the plaintiff was always ready and willing to perform his part of the contract, merely because he had sworn in an affidavit before the Oath Commissioner. In my opinion, the plaintiff could succeed only if he was able to prove that he was ready and willing to perform his part of the contract (irrespective of the fact whether defendant No.1 was ready and willing to perform her part of the contract or not). Reliance in this regard may be placed on the law laid down by the Hon'ble Supreme Court, in the case reported as N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and others, 1995(3) RCR(Civil) 190 (SC) : 1995(5) R.S.A. No. 2434 of 1985 -8- Supreme Court Cases 115 and His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar, 1996(2) RCR(Civil) 684 (SC) : 1996(4) Supreme Court Cases 526. In the present case, the learned Additional District Judge, after considering the entire evidence led by the parties, had come to a categorical finding that the plaintiff had failed to prove that he was ready and willing to perform his part of the contract. No fault could be found with this finding of fact, given by the learned Additional District Judge, especially when this finding is based on evidence led by the parties and other circumstances proved on the record. Accordingly, I affirm the findings of the learned Additional District Judge on issue No.2. The question as to whether the plaintiff was required to pay the outstanding amount to the Bank or not, in my opinion, would lose its significance, in view of my above findings that the plaintiff had failed to prove that he was always ready and willing to perform his part of the contract. Furthermore, no substantial question of law is involved in this Appeal.” Reliance was also placed in support of this contention on the judgment of the Hon'ble Supreme Court in Umabai & Anr. Vs. Nilkanth Dhondiba Chavan (Dead) by Lrs. & Anr, 2005(2) RCR (Civil) 659, wherein the Hon'ble Supreme Court was pleased to lay down that readiness and willingness to perform the part of the contract is to be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in examination-in-chief is not sufficient. On consideration, I find force in this contention of the learned counsel for the appellants. There is absolutely no evidence on record R.S.A. No. 2434 of 1985 -9- except the bald statement of the plaintiff/respondent about his willingness to perform his part of the contract. Though he specifically stated that he had moved an application before the Sub Registrar to get his presence marked, but no such application or affidavit attested by the Sub Registrar was produced on record. The learned lower appellate Court, therefore, committed an error by mis-reading the evidence to reverse the finding recorded by the learned trial Court on issue No.2, which deserves to be set aside and that of the learned trial Court restored. First substantial question of law is accordingly answered in favour of the appellants and against the respondent. The learned counsel for the appellants also contended, that the learned Courts below have wrongly recorded a finding that agreement Ex.P-1 was proved as it was supported by the plaintiff/respondent as well as the attesting witness. There is force in this contention of the learned counsel for the appellants. It is on record that the plaintiff/respondent is Lambardar of the village, whereas appellant/defendant No.1 is an illiterate person. The agreement was admittedly shown to have been written by a regular deed writer. However, the reading of the agreement still shows that the attesting witnesses did not sign with the parties at the end of the agreement. There is thumb mark of the appellant and it is also signed by the plaintiff/respondent. However, one of the attesting witnesses has signed on the side of the agreement on first page, whereas the second witness has signed on the second page, whereas there is no signature of attesting witness on the third page. The agreement also does not take R.S.A. No. 2434 of 1985 -10- note of the fact that the property was mortgaged, therefore, keeping in view the status of the plaintiff/respondent it cannot be believed that he was not aware of the revenue record, as the mortgage was shown in the revenue record. Otherwise also the bare look at the agreement lend support to the stand of the appellant/defendant No.1 that his thumb impression might have been taken by plaintiff/respondent by using his influence being Lambardar of the village, as it is not forthcoming or explained as to why the attesting witnesses signed at different places and not at the end of the agreement. Though, it is not necessary that the attesting witnesses should sign at a particular page as even oral agreement can be entered into, but the irregularities in execution assume importance when it is written by a regular deed writer, who is expected to draft the agreement in normal course. The second substantial question of law also deserves to be answered in favour of the appellants, it is held that due execution of the agreement was not proved in this case. In view of the findings recorded above, this regular second appeal is allowed, the decree of the learned lower appellate Court is set aside and that of the learned trial Court is restored, but with no order as to costs. (Vinod K. Sharma) Judge July 01, 2010 R.S.