R.S.A.No. 3747 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No. 3747 of 2008 Date of decision: 23rd October, 2009 Charanjit Singh ......Appellant Versus Surjit Singh and another ......Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. J.S.Brar, Advocate for the appellant. Mr. S.N.Chopra, Advocate for the respondents. Rajive Bhalla, J The appellant challenges the judgments and decrees dated 19.04.2004 and 9.09.2008, passed by the Additional Civil Judge (Senior Division), Amloh and the District Judge, Fatehgarh Sahib, decreeing the suit, filed by the respondents and dismissing his appeal. The plaintiff-respondents filed a suit for specific performance of an agreement to sell dated 6.04.2001, by pleading that the defendant-appellant had agreed to sell 1/4th share in land measuring 47 bighas and 4 biswas, for a total sale consideration of Rs. 5,53,125/-. The appellant received Rs. 4,00,000/- as earnest money and it was agreed that the balance R.S.A.No. 3747 of 2008 2 amount of Rs. 1,53,125/- would be paid at the time of the execution of the sale deed which was to be executed on or before 15.06.2001. The plaintiffs further averred that they repeatedly requested the appellant to execute the sale deed before 15.06.2001, but he put them off on one pretext or the other. On 15.6.2001, they arrived at the Tehsil premises Amloh, with the balance sale consideration and expenses, but the appellant did not come to execute the sale deed. The plaintiffs marked their presence before the Executive Magistrate, Amloh, by swearing an affidavit and thereafter, served a legal notice dated 18.06.2001, calling upon the appellant to execute the sale deed, but to no avail. In response to the averments in the plaint, the appellant denied the execution of the agreement to sell, the receipt of earnest money or that he was required to execute any sale deed on or before 15.06.2001. The appellant pleaded that parties were sons of Santa Singh, though from different mothers. The respondents shifted to Mandi Gobindgarh and started a business. The appellant remained in the village to look after their father and the land. In this view of the matter, their father Santa Singh, executed a will dated 28.01.1998, bequeathing 47 bighas 4 biswas, to the appellant and his handicapped brother Tarlochan Singh. It is further pleaded that the agreement is the result of a fraud that has been played by the respondents on the pretext of a family partition. On the basis of the pleadings, the trial court framed the following issues:- R.S.A.No. 3747 of 2008 3 “1. Whether the plaintiffs are entitled to joint possession of the suit land to the extent of ¼ share as per the agreement to sell dated 16.4.2001 by way of specific performance? OPP 2. Whether the plaintiffs have been ready and willing to execute his part of contract? OPP 3. Whether in the alternative plaintiffs are entitled to recover the suit amount? OPP 4. Whether the plaintiffs entitled to the injunction as prayed for? OPP 5. Whether the suit is not maintainable in the present form? OPD 6. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial court decreed the suit by holding that the agreement to sell and the receipt of earnest money stand proved by the deposition of an attesting witness PW-1 and the scribe PW-2 and as the plaintiffs have proved their readiness and willingness to perform their part of the contract, they are entitled to a decree of specific performance. The trial court rejected the appellant's plea that the agreement to sell was the result of a fraud perpetuated by the plaintiffs while drawing up a family settlement. It would be necessary to mention here that the appellant did not step into the witness box and despite the grant of a large number of opportunities, he failed to adduce R.S.A.No. 3747 of 2008 4 evidence, therefore, his evidence was closed by order. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. Vide judgment and decree dated 9.09.2008, the District Judge, Fatehgarh Sahib, dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellant submits that admittedly, parties are step brothers. The will dated 28.01.1998, has not been denied by the respondents. As a result, there was no plausible reason for the appellant to have executed an agreement to sell with respect to the land that had been bequeathed to him by the will dated 28.01.1998. The story set up in the plaint is fanciful and therefore, points to a fraud perpetuated by the respondents. It is argued that the family partition mark 'Y' was admittedly, executed on the same day as the alleged agreement to sell. Therefore, the case set up by the appellant that he was duped into executing this agreement, should have been accepted by the courts below. It is further argued that the appellant could not step into the witness box as he had lost vision of one eye and during the pendency of the suit lost the use of his second eye. His prayer for being examined on commission, was rejected by the trial court, as was his application for leading additional evidence and eventually the evidence was closed by order, thus, declining to the appellant an adequate opportunity to prove his case. It is argued that the trial court should have granted the appellant an opportunity to prove his case, instead of closing evidence by order. R.S.A.No. 3747 of 2008 5 Counsel for the respondents, on the other hand submits, that the courts below have recorded concurrent findings of fact, that the agreement to sell stands proved. The courts below have also recorded a finding that there is no evidence on record to support the appellant's plea of fraud. The appellant's submission that he was duped into executing the agreement to sell, though, parties intended to execute a family settlement has been rejected. The appellant was granted a large number of opportunities to lead evidence but as he did not produce his evidence, the trial court had no option but to close his evidence by order. The story about loss of eye sight has been put forth to garner sympathy. It is prayed that as the appellant was granted adequate opportunity to prove his case, his grievance is unfounded. I have heard counsel for the parties, perused the impugned judgments and decrees, considered the arguments raised by counsel for the parties and express my inability to hold that the impugned judgments suffer from any error of law. The appellant has framed a large number of questions of law that primarily, relate to the proof of the agreement to sell, the grant of inadequate opportunity to the appellant to establish his defence and the rejection by the courts below of his defence that he was defrauded on the pretext of executing a family settlement. The courts below have recorded concurrent findings of fact that the agreement to sell dated 6.4.2001, Ex. P1 stands proved by the deposition of one of the plaintiffs PW-3, the R.S.A.No. 3747 of 2008 6 deposition of Mohan Singh PW-1 an attesting witness and the deposition of Jeewan Kumar Joshi PW-2, the scribe of the agreement. It has also been held that the appellant’s signatures appear in the register of the deed writer. Counsel for the appellant has failed to address any argument, as would detract from the correctness of the findings recorded by the courts below. The submission that the statement of the scribe admitting that a family partition was executed, but it was not recorded in his register, casts a shadow on the agreement, was considered and rejected by the courts below as the alleged family settlement is not signed by the parties. It appears that though the family settlement was reduced into writing, it was eventually discarded and instead the agreement to sell was executed. The appellant now wants to back out of this agreement though it stands proved. The argument that the appellant was not granted an adequate opportunity to establish his case, must also fail. The appellant was granted sufficient opportunity, including a last opportunity to lead his evidence. The appellant however, failed to step into the witness box to conclude his evidence. It is true that in matter of evidence, courts tend to grant a degree of latitude but in the present case, no fault can be found with the trial court in ordering closure of the appellant's evidence. The appellant was granted a number of opportunities to lead his evidence but he failed to lead evidence or step into the witness box. It would be necessary to mention here that courts cannot be R.S.A.No. 3747 of 2008 7 expected to wait indefinitely for litigants to lead their evidence as expeditious disposal of cases is integral to a just system of administration of justice. Another argument that the appellant could not challenge the order closing his evidence as arguments were heard on the same day disregards the provisions of Order 17 Rule 3 of the Code of Civil Procedure which empower a Court, to hear arguments and pronounce judgment, immediately, upon closure of the defendant’s evidence. The appellant, having failed to establish his plea of fraud, the courts below rightly held that the agreement was legal and valid. In view of what has been stated hereinabove, as no substantial question of law arises for consideration and as the impugned judgments and decrees do not suffer from any error of law, the appeal is dismissed with no order as to costs. No other point has been urged or pressed. [RAJIVE BHALLA] JUDGE 23rd October, 2009 Shivani Kaushik