RSA No.4955 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4955 of 2009 (O&M) Date of decision: 3.1.2011 Harbhajan Singh & others ......Appellant(s) Versus Baljit Singh & others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Viay Sharma, Advocate for the appellants. Rakesh Kumar Garg, J. (Oral) CM No.15052-C of 2010 After hearing learned counsel for the applicant-appellants, this application is allowed. Order dated 27.10.2010 is recalled and the appeal is restored to its original number. CM No.14653-C of 2009 For the reasons mentioned in the application, delay of 61 days in refiling this appeal is condoned. CM stands disposed of. CM No.14654-55-C of 2009 This is an application to allow the appellants to lead additional evidence regarding the fact that he was having the sufficient amount in his account on the stipulated date for payment as balance sale consideration and to bear the other expenses. No ground is made out to allow the appellants at this stage to lead the aforesaid evidence as envisaged under Order 41 Rule 27 CPC. Even otherwise in view of the findings recorded that the RSA No.4955 of 2009 (O&M) 2 plaintiff-appellants were not willing to perform their part of the contract on the stipulated date, the evidence to show their readiness that they were having the financial capacity to pay, will not make any difference on the bearings of the case. Thus, this application is without any merit. Dismissed. RSA No.4955 of 2009 (O&M) This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby their suit for specific performance of the agreement in question has been dismissed holding that the appellants were not ready and willing to perform their part of the contract on the stipulated date i.e. 28.8.2004. It is relevant to refer to the observations of the Lower Appellate Court which reads as follows: “In the case in hand, in the agreement Ex.P1, vendees have been given a clear right to resort to making development and carve out roads, etc. in the land under the agreement symbolic possession whereof was given to them and the ownership/title whereof was to be transferred at the time of registration of the sale deed on 28.8.2004 on payment of remaining amount of consideration from them. No iota of material has been brought on file or proved by the plaintiffs that they had taken any such steps in performance of the aforesaid terms of the agreement to sell to show their readiness and willingness. Not only this, plaintiffs did not appear before the Sub Registrar even on 30.8.2004 pursuant to the date fixed for execution and registration of sale deed, 28.8.2004 being holiday. Affidavit Ex.P3 got RSA No.4955 of 2009 (O&M) 3 attested by Harbhajan Singh out of them alone from Notary Public does not inspire any confidence as already stated above since the same bears no number of entry in the register of Notary Public. Notary Public eve has not been examined in support of the fact that plaintiffs in fact appeared in the office of Sub Registrar, Ludhiana-West for the purpose of completing their part of the agreement. In the said affidavit, no date of execution of said agreement is given and a space in this aspect has been left blank. There is no mention in the said affidavit that the plaintiffs were ready and willing to perform their part of the contract with the balance sale consideration and expenses of execution of the sale deed and that they had brought the same with them. Surprisingly enough, affidavit Ex.P3 has been got attested from Notary Public instead of Sub Registrar as has been done by the plaintiffs in respect of affidavit dated 1.12.2004 proved on record as Ex.P18. In such circumstances, affidavit Ex.P3 appears to have been procured by the plaintiffs after the receipt of notice Ex.P4 from the advocate of the defendants. Otherwise also, affidavit EX.P3 is not a document per se admissible in evidence and has been wrongly tendered and exhibited in evidence. So, it cannot be read in evidence. On the contrary, the defendants have brought on appeal file their duly sworn affidavit 30.8.2004 attested by the office of Sub Registrar, Ludhiana (West) and judicial notice thereof can legitimately be taken.” RSA No.4955 of 2009 (O&M) 4 No material evidence has been pointed out to controvert the aforesaid findings recorded by the Lower Appellate Court. It may also be seen that the question whether the plaintiff-appellants were ready and willing to perform their part of the contract is a question of fact which is to be adjudged from their conduct. Both the Courts below on appreciation of evidence have recorded a concurrent finding of fact that the appellants were not ready and willing to perform their part of the contract on the stipulated date. In the absence of any material evidence which has been placed on record to controvert the aforesaid finding, it cannot be said that the judgment and decrees of the Courts below are perverse and against the record. Thus, I find no merit in this appeal. Even no substantial question of law, much less substantial, arises in this appeal. Dismissed. January 3, 2011 (RAKESH KUMAR GARG) ps JUDGE