R.S.A. No. 292 of 2009 (O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 292 of 2009 (O&M) Date of Decision: Dec. 08,2011 Baldev Raj ........................................ Appellant Versus Jarnail Singh .................................... Respondent Coram: Hon'ble Ms. Justice Ritu Bahri 1.To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. Sameer Rathore, Advocate for the appellant. Mr. R.S.Chauhan, Advocate for the respondent. ... RITU BAHRI, J. This Regular Second Appeal is against the decree and judgment dated 29.10.2008 passed by the Additional District Judge, Nawanshahr, dismissing the appeal filed against the judgment and decree dated 13.9.2007 passed by the Civil Judge (Sr. Divn.), Nawanshahr. Brief facts of the case are that the plaintiff-Baldev Raj entered into an agreement to sell 4 kanals of land for consideration of `1,90,000/-. The respondent/defendant R.S.A. No. 292 of 2009 (O&M) [ 2 ] received `50,000/- as earnest money. The sale deed was to be executed upto 31.7.1995. On 28.7.1995 an endorsement was added to the agreement to sell. The respondent/defendant undertook to execute the sale deed as per the said agreement after the finalization of the civil suit between him and his co-sharers. He undertook to inform the plaintiff through registered post regarding finalization of the civil suit. Ram Chander was the attesting witness to this endorsement dated 28.7.1995 (Ex.P1/A). In the year 1998 when the plaintiff came to know that the defendant had compromised with the co-sharer, he issued a registered notice dated 22.5.1998 to the respondent/defendant to attend the office of Sub-Registrar on 8.6.1998 along with Lambardar of his village for execution of the sale deed. The plaintiff remained present in the office of Sub-Registrar on 8.6.1998 along with the balance sale consideration to complete the other formalities of registration. An affidavit dated 8.6.1998 was registered vide entry No. 4485 dated 8.6.1998 that he was present in the office of the Sub- Registrar. The present suit was filed thereafter. On notice, the suit was contested by the defendant. He raised the preliminary objection to the maintainability of the suit and the locus-standi of the plaintiff to file the suit. The defendant denied that he had entered into any agreement to sell the suit land in favour of R.S.A. No. 292 of 2009 (O&M) [ 3 ] the plaintiff. He had signed some blank papers as security for repayment of the loan of `50,000/- taken by him from the plaintiff. A prayer was made that the suit be dismissed. In the replication, the plaintiff controverted the preliminary objections raised by the defendant and reiterated the correctness of the plaint. The following issues were framed by the trial Court:- 1.Whether on 2.5.1995 defendant executed agreement to sell the suit property with plaintiff for consideration of `1,90,000/-? OPP 2.Whether plaintiff was and is still ready and willing to perform his part of the contract? 3.Whether plaintiff is entitled to decree for specific performance of the agreement to sell? OPP 4.Whether in alternative, plaintiff is entitled to recovery of `1,00,000/-? OPP 5.Whether suit is not maintainable in the present form? OPD 6.Whether plaintiff has no locus standi to file the present suit? OPD 7.Whether suit is bad for mis-joinder and non- joinder of necessary parties? OPD 8.Whether suit is time barred? OPD 9.Relief. The onus to prove issue No.1 was on the plaintiff R.S.A. No. 292 of 2009 (O&M) [ 4 ] and while appearing as PW1 Sheeba has stated that defendant Jarnail Singh had entered into an agreement for the sale of the suit land for a sale consideration of `1,90,000/-. `50,000/- was paid to the defendant as earnest money. The agreement was scribed by deed writer Ajit Kumar. PW2 Attorney of Kaushal Chand Sharma deposed in favour of the plaintiff. He stated that the earnest money of `50,000/- was paid to the defendant at the time of agreement to sell vide receipt Ex.P2. The entries regarding the agreement and receipt were made by him at Sr. Nos. 85 and 86 in his register. Defendant Jarnail Singh while appearing as DW1 denied that he had entered into any agreement nor he received any earnest money. Issue No.1 was decided in favour of the plaintiff. On issues Nos. 2, 3 and 4 the trial Court has examined the evidence and come to a conclusion that an extension was granted to execute the sale on 28.7.1995. As per this extension the defendant had agreed to execute the agreement to sell once the civil suit between the co-sharer was finalized. The defendant did not finalize the agreement to sell despite having compromised the civil suit between him and the co-sharers. The plaintiff gave a notice on 22.5.1998 (Ex.P5) calling upon him to appear in the office of the Sub-Registrar on 8.6.1998. The plaintiff appeared before the Sub-Registrar on 8.6.1998 as per affidavit (Ex.P7). The plaintiff could not prove before R.S.A. No. 292 of 2009 (O&M) [ 5 ] the trial Court as to when the litigation between the defendant and co-sharer came to an end. There is no justification for giving notice on 22.5.1998 (Ex.P5) to the defendant to execute the agreement to sell once the date of the agreement had been extended from 2.5.1995 to 28.7.1995. The plaintiff kept quiet till he issued the notice (Ex.P5) dated 22.5.1998. The trial Court decreed the suit of the plaintiff for recovery of earnest money to the tune of `50,000/- along with interest at the rate of 12% per annum from the date of the transaction. The findings recorded by the trial Court on issues Nos. 5, 6, 7 and 8 did not call for interference. The suit was partly decreed vide judgment dated 13.9.2007 passed by the Civil Judge (Sr. Divn.), Nawanshahr. On appeal, the learned Additional District Judge, Nawanshahr affirmed the findings recorded by the trial Court that the parties to the agreement to sell dated 2.5.1995 had mutually agreed for extension of time for execution of the sale deed vide endorsement dated 28.7.1998 (Ex.P1/A) and dismissed the appeal. The plaintiff pleaded in his plaint that he came to know about the finalization of the said civil suit and thereafter he served the defendant with a notice asking him to execute the sale deed, but he has led no evidence to show that the civil suit filed by the co-sharers of the R.S.A. No. 292 of 2009 (O&M) [ 6 ] defendant had come to an end. As far as the agreement to sell is concerned, it was duly proved by leading evidence by producing the scribe PW3 Ajit Kumar who had proved the receipt of earnest money of `50,000/- (Ex.P2). The Appellate Court affirmed the finding of the trial Court that plaintiff was entitled to recover the earnest money of `50,000/- along with 12% interest with effect from 2.5.1995 till the realization of the entire amount. The appellant has filed an application under Order 41 Rule 27 CPC in this Court for placing on record the compromise arrived at between the defendant and co- sharers. This compromise is Annexure A1 dated 9.9.1997 in which the following orders were passed:- “Present: Counsel for the parties In view of separately recorded statement of Sh.Manohar Singh, adv. Counsel for plaintiff, the suit is dismissed as withdrawn. File be consigned to record room. Pronounced. Dated: 9.9.1997 Sd/- Civil Judge (Jr. Divn.) Nawanshahr” A reply has been filed to this application by the respondent. The application has been opposed on the ground that this order was well within the knowledge of the appellant as in his plaint he had admitted that a compromise has been effected between the defendant and R.S.A. No. 292 of 2009 (O&M) [ 7 ] the co-sharers. He made no efforts to lead any evidence before the Courts below to the same effect. The scope and object of Order 41 Rule 27 CPC is that if despite due diligence the evidence could not be led the Court after examining the circumstances can permit leading of additional evidence at the appellate stage. In the facts of the present case the plaintiff was very well aware of the compromise at the time of filing of the suit as is evident from the plaint. The application under Order 41 Rule 27 is liable to be dismissed. Counsel for the appellant has placed reliance on the judgment in North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by Lrs JT 2008 (4) SC 587 to contend that though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence is an exception to the general rule. If the conditions under Order 41 Rule 27 are fulfilled the additional evidence can be admitted. He referred to a judgment of this Court in Abhay Singh and others v. Ramesh Kumar and others 2009 (3) PLR 490 to contend that once the time for extension of the agreement to sell had been agreed between the parties on 28.7.1995 (Ex.P1/A) the defendant cannot be absolved of his responsibility to execute the agreement to sell. The suit was filed by the co-sharers only to avoid the execution of the R.S.A. No. 292 of 2009 (O&M) [ 8 ] agreement to sell dated 2.5.1995 whereas the suit was compromised as per the endorsement dated 28.7.1995 (Ex.P1/A). The defendant kept quiet. This will not amount to a rare circumstance as contemplated under Section 20 of the Specific Relief Act which would deny the relief of specific performance of the agreement to sell to the plaintiff. Mr. R.S.Chauhan, counsel for the respondent, does not dispute the agreement to sell dated 2.5.1995. Once the plaintiff had agreed vide Endorsement dated 28.7.1995 (Ex.P1/A) to extend the execution of agreement to sell he cannot take a plea now that he was not aware about the litigation pending between the defendant and the co- sharers. At the time of filing the suit on 3.9.1998 he had made a mention in the plaint that the civil suit between the defendant and his co-sharers had been compromised. The plaintiff in his plaint had pleaded that he came to know finalization of the suit and it was thereafter he had served defendant a notice on 8.6.1998 to execute the agreement to sell. Since the plaintiff was aware of the finalization of the civil litigation at the time of institution of the suit in the year 1998 he made no efforts to lead any evidence before the trial Court as well as before the Appellate Court that the defendant despite finalization of the civil suit had not taken steps to execute the agreement to sell. The application for additional evidence is liable to be dismissed on this ground R.S.A. No. 292 of 2009 (O&M) [ 9 ] alone and the judgments of the trial Court and Appellate Court do not require any interference. I have heard counsel for the parties and perused the entire record through their assistance. It is not disputed that the agreement to sell was validly executed on 2.5.1995. The appeal raises one primary question for consideration namely “Whether plaintiff is entitled to decree for specific performance of the agreement to sell?” The plaintiff after entering into the agreement to sell dated 2.5.1995 had also agreed to extend term of execution of the agreement to sell vide Ex. P1/A dated 28.7.1995. Execution of this agreement has been admitted by both the parties. It was agreed that after the finalization of the civil suit the sale deed will be executed. However, till 1998 no steps were taken by the defendant to execute the same. On 8.6.1998 a notice was sent by the plaintiff after a gap of 3 years to the defendant to execute the agreement to sell. In the plaint the trial Court has observed that in his plaint the plaintiff had pleaded that when he came to know about the finalization of the civil suit he served the defendant with a notice dated 8.6.1998 to execute the sale deed. Annexure A1 is the Civil Court decision dated 9.9.1997 where the counsel for the plaintiff had withdrawn the suit which was pending between the defendant and the co- R.S.A. No. 292 of 2009 (O&M) [ 10 ] sharers. There is no explanation by the plaintiff as to why he kept quiet for almost 3 years for executing the agreement to sell. Once he was aware at the time of filing of the suit that the matter has been compromised on 9.9.1997 he chose to keep quiet for more than a year thereafter. Finally, the suit was instituted on 3.9.1998 i.e. after a gap of almost one year. The plaintiff cannot get any benefit of the judgments cited by him as he did not exercise due diligence for placing on record the judgment Annexure A1 which is being sought to be led in evidence in the High Court. This fact was in his knowledge when he filed the suit in the year 1998 and no cogent reasons are borne out to lead additional evidence under Order 41 Rule 27 CPC after a gap of almost 10 years when the suit was instituted. The application is dismissed. In view of the admitted fact that the agreement to sell was validly executed the alternative relief of recovery of `50,000/- along with interest as given by the trial Court in the above facts and circumstances of the case do not require any interference by this Court. No question of law much less the substantial question of law arises for adjudication by this Court. Regular Second Appeal is dismissed. 08.12.2011 ( RITU BAHRI ) Rupi JUDGE