R.S.A. No. 507 of 1985 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 507 of 1985 (O&M) Date of decision: 19.02.2010 Harnek Singh ....Appellant Versus Ram Singh and another ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. G.S. Punia, Advocate, for the appellant. Mr. H.S. Dhandi, Advocate, for respondent No.1. VINOD K. SHARMA, J.(ORAL) This appeal, by the plaintiff/appellant, is directed against the judgment and decree dated 7.8.1984, passed by the learned Courts below, vide which the suit filed by the plaintiff/appellant for possession, by specific performance of agreement to sell dated 2.2.1979, in respect of 21 bighas 18 biswas of land out of khasra Nos. 240(9B-8B), 241(9B- 8B), 246(9B-8B), portion on the eastern side of each number i.e. 7B-(B) situated at village Lataur, Tehsil Sirhind, on payment of balance sale consideration of Rs.78,984/- (Rupees seventy eight thousand nine hundred and eighty four only), was dismissed. The pleaded case of the plaintiff/appellant was, that agreement to sell was executed by defendant No.1, with the plaintiff/appellant on 2.2.1979, for sale of land referred to above, @ Rs.4272/- (Rupees four thousand two hundred and seventy two only) per bigha. Earnest money of Rs.15,000/- (Rupees fifteen thousand only) was paid. The date for R.S.A. No. 507 of 1985 (O&M) -2- execution of sale deed was fixed on or before 15.6.1979. The case of the plaintiff/appellant was, that defendant/respondent No.1 did not honour the agreement, in spite of the fact, that the plaintiff/appellant was ready and willing to perform his part of the contract. It was also pleaded that notice was issued to defendant/respondent No.1, calling upon him to act upon the agreement, but to no effect. It was also the pleaded case of the plaintiff/appellant, that defendant No.1 filed a suit for injunction, restraining the plaintiff/appellant from transferring or disposing the suit property, but the suit was dismissed. The plaintiff further pleaded, that in spite of being repeatedly asked defendant No.1 did not execute the registered sale deed, that he finally declined to do so, a week prior to filing of the suit. It was pleaded that the cause of action arose to the plaintiff/appellant, when the suit filed by the sons of defendant No.1 seeking injunction was dismissed on 15.6.1979. The suit was contested, wherein defendant No.1 denied the execution of the agreement to sell. He also denied the price mentioned in the agreement to be the price, on which the land was agreed to be sold. He even denied the receipt of earnest money of Rs.15,000/- (Rupees fifteen thousand only) and also the fact that the sale deed was to be executed on 15.6.1979. The agreement was pleaded to be without consideration, and, therefore, not binding on defendant No.1. The receipt of notice from the plaintiff/appellant was denied, as also the averments regarding readiness and willingness to perform his part of the contract. Objection was also raised, with regard to the maintainability of the suit. The suit was said to be bad for non-joinder of necessary parties. R.S.A. No. 507 of 1985 (O&M) -3- The suit property was pleaded to be ancestral and coparcenary property, of defendant No.1 and his sons. In replication, averments made in the plaint were reiterated and those made in the written statement were denied. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether the defendant No.1 entered into agreement of sale dated 2.2.1979, with the plaintiff for sale of the suit land as alleged? OPP 2. Whether Rs.15000/- were paid by the plaintiff to defendant No.1? OPP 3. Whether the plaintiff has been ready and willing to perform his part of contract? OPP 4. Whether defendant No.1 is not competent to enter into alleged agreement of sale with the plaintiff? OPD 5. Whether the suit is not maintainable in the present form as alleged? OPD 6. Relief. 5A Whether the suit property is ancestral coparcenary property? OPD 5B What is the effect of previous litigation between the parties? OPP Issues No.1 and 2 were taken up together. The plaintiff/appellant, in order to prove the agreement to sell, which was duly exhibited as Ex. P1, examined Sh. Rajinder Singh Deed Writer as PW1, Sukhdev Singh and Ishar Singh as PW3 and PW4, respectively, i.e. marginal witnesses, to the agreement. He himself appeared in the witness box as PW2. Whereas defendant No.1 himself appeared as his own witness. R.S.A. No. 507 of 1985 (O&M) -4- The learned trial Court, on appreciation of evidence, specially the statement of the Deed Writer and the marginal witnesses, came to the conclusion, that defendant No.1 had entered into an agreement to sell 6 ¼ bighas of land for consideration of Rs.26,700/- (Rupees twenty six thousand and seven hundred only). That defendant/respondent had received a sum of Rs.15,000/- (Rupees fifteen thousand only) as earnest money, at the time of agreement to sell. The learned trial Court also took note of the fact, that the sons of defendant No.1 had filed suit for injunction, to conclude in favour of the execution of agreement. Issues No.1 and 2 were decided in favour of the plaintiff/appellant. On issue No.3, the learned trial Court held, that the issue was not proved. The plaintiff/appellant had stepped into the witness box as PW1. In examination-in-chief had stated, that he was ready and willing to perform his part of the contract. In the examination-in-chief had further deposed that he was still ready and willing to perform his part of the contract, but this stand stood falsified, as in the cross-examination, the plaintiff admitted that on the date fixed for execution of sale deed, he had gone to Tehsil for getting the sale deed executed, and also got attested his affidavit Ex.P3, but did not take the consideration amount with him on 15.6.1979. The learned trial Court, on the basis of the statement of plaintiff recorded a finding, that the plaintiff, had failed to prove that he was ready and willing to perform his part of the contract. Issues No.4 and 5 and additional issue No.5A were not decided in view of the finding on issue No.3. Issue No.5B was decided in favour of the plaintiff/appellant, in view of the findings recorded in the suit for injunction, filed by the sons R.S.A. No. 507 of 1985 (O&M) -5- of defendant No.1. In view of the findings referred to above, the learned trial Court declined the relief of specific performance, however, it passed a decree for recovery of Rs.15,000/- (Rupees fifteen thousand only) against defendant No.1 with costs. The plaintiff/appellant preferred an appeal against the judgment and decree passed by the learned trial Court. In appeal, the prayer made by the plaintiff/appellant to lead additional evidence to prove, the application moved under Order 39 Rules 1 and 2 of the Code of Civil Procedure by the sons of Ram, was declined by holding that the additional evidence was not necessary to enable the Court to pronounce the judgment. The learned lower appellate Court also held, that a false stand was taken in the affidavit stating therein that the plaintiff/appellant had carried sale consideration with him on the date fixed for execution of sale. The stand of the plaintiff/appellant before the learned lower appellate Court, was that there was no recital that the plaintiff/appellant was to pay the remaining sale consideration by 15.6.1979. Therefore, under Section 54 of the Transfer of Property Act, the sale consideration could be paid on some other agreed date. This contention of the plaintiff/appellant, was rejected on the ground, that it was not open to the appellant to make out a new case, than the one pleaded before the learned trial Court. The learned lower appellate Court held that reading of the agreement showed, that balance sale consideration was to be paid by 15.6.1979, therefore, it was not R.S.A. No. 507 of 1985 (O&M) -6- possible to interpret the agreement, to mean that the payment of sale consideration could be postponed. The contention of the plaintiff/appellant before the learned lower appellate Court, that as per Explanation 2 to Section 16 of the Specific Relief Act, it was not necessary for the plaintiff/appellant, to actually tender to the defendant or deposit any money in Court except if so directed by the Court, was rejected in view of the fact that as per agreement Ex. P1, there was no doubt that the plaintiff/appellant was to get the sale deed executed on or before 15.6.1979, even though, the time could not be taken as essence of the contract. The learned lower appellate Court rightly held, that qua the readiness and willingness to perform the contract, there were only averments made in the plaint. The learned Court also found that though stand was taken, that notice was issued to defendant No.1 for execution of sale deed, but no such notice was proved or exhibited. The learned lower appellate Court also took note of the fact that in the affidavit, which was got drafted on 15.6.1979, it was averred that plaintiff/appellant, along with the witnesses had been waiting for the vendor since morning along with money, but, the defendant/respondent No.1, had not turned up for execution of sale deed. But in the cross- examination he admitted that on 15.6.1979, he did not take sale consideration with him. The learned lower appellate Court, therefore, held that affidavit could not be taken to be a honest document, and was only an attempt to create evidence, in his favour. The learned lower appellate Court also rightly did not accept the contention, that merely because the R.S.A. No. 507 of 1985 (O&M) -7- plaintiff/appellant had paid the court fee, first in the trial court and then in the appellate Court, proved his readiness and willingness to perform his part of the contract. The learned lower appellate Court also held, that the burden to prove, readiness and willingness, was on the vendee notwithstanding the repudiation of contract by vendor. Thus, keeping in view that false stand was taken by the plaintiff/appellant in the affidavit, which was attested in the office of Sub Registrar, the learned lower appellate Court came to the conclusion that plaintiff/appellant was not entitled to equitable relief of specific performance. The learned lower appellate Court also held, that it was for the plaintiff/appellant to plead, that he had tendered the money to defendant No.1 on a particular date, and thereafter demanded transfer of property by an instrument. The plaintiff/appellant failed to prove the aforesaid ingredients, thus, the suit was rightly dismissed. Consequently, the appeal was dismissed. Mr. G.S. Punia, learned counsel, appearing on behalf of the appellant, contended that this appeal raises the following substantial questions of law: - “1. Whether the presence of vendee in the office of Sub Registrar for having the sale deed executed and registered by the seller, was sufficient to prove, that he was ready and willing to perform his part of contract, and also had necessary funds to pass on, as consideration without proving that he had the ready cash with him? 2. Whether the judgment and decree passed by the R.S.A. No. 507 of 1985 (O&M) -8- learned Courts below suffers from perversity being against settled principles of law?” In support of the substantial questions of law, the learned counsel for the appellant, vehemently contended, that the finding of the learned Courts holding that the plaintiff/appellant had failed to prove his readiness and willingness, to perform his part of contract, on the face of it is perverse and not sustainable in law. In view of the law laid down by this Court in Iqbal Singh and another Vs. Gurdev Kumar and another, 2004(2) Civil Court Cases 415, Raj Pal Singh Vs. Baldev Singh and others, 2005(3) Civil Court Cases 213 and the judgment of the Hon'ble Supreme Court in Sukhbir Singh and others Vs. Brij Pal Singh and others, 1996(2) Apex Court Journal 3, holding that the presence of the plaintiff, before Sub Registrar, on the date fixed for execution of the sale deed, is in itself sufficient to prove readiness and willingness, it is not necessary to prove, that the plaintiff/appellant also had the necessary funds for execution of the sale deed. The contention of the learned counsel for the appellant, therefore, was that the judgment and decree passed by the learned Courts below cannot be sustained, being perverse. It is also the contention of the learned counsel for the appellant, that the judgment and decree passed by the learned Courts below is perverse on the face of record, as the plaintiff/appellant was non-suited, on the plea that it was incumbent upon the plaintiff/appellant to have pleaded and proved that he tendered money to defendant No.1, on a particular date, and had demanded the transfer of property by an instrument. This cannot be said to be a good law. The judgment and R.S.A. No. 507 of 1985 (O&M) -9- decree passed is, thus, perverse, being based on law, which can be said to be good law anymore. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. Though, it cannot be disputed, that the fact of vendee, being present before the Sub Registrar for execution of the sale deed is a proof for his willingness to perform his part of the contract and it is also not necessary for him to prove, that he actually had sufficient funds to execute the sale deed. However, this presumption is rebuttable, if there is a positive evidence to the contrary on record. The plaintiff/appellant in the affidavit sworn by him, had taken a positive stand that he was present before the Sub Registrar along with sale consideration and witnesses to execute the conveyance deed. This averment was proved to be wrong, in view of his admission in cross-examination that he did not carry the sale consideration with him. In this view of the matter, no fault can be found with the judgment and decree passed by the learned Courts below, holding therein that the plaintiff/appellant, had failed to prove his willingness to perform his part of the contract. It is also well settled, that the party, which does not come to Court with clean hands, is not entitled to discretionary relief. By taking a false plea, the plaintiff/appellant, dis-entitled himself to relief of specific performance. The first substantial question of law is answered by holding, that though the presence of the vendee, before the Sub Registrar leads to a presumption, that he was ready and willing to perform his part of the contract, but the presumption is rebuttable by a positive evidence. In R.S.A. No. 507 of 1985 (O&M) -10- case, it is proved by positive evidence, that the presence of the vendee, was merely to create evidence and not to get the sale deed executed, the Court can record the finding, that the vendee was not willing to perform his part of the contract. The first substantial question of law is answered as referred to above. On the second substantial question of law, the contention of the learned counsel for the appellant was, that the finding of the learned lower appellate Court, that it was for the plaintiff/appellant to have proved, that the amount was tendered and in absence thereof, he was not entitled to specific performance, on the face of it is perverse. It was proved that defendant/respondent No.1 was not willing to perform his part of the contract, therefore, there arose no occasion to tender the amount. The proposition of law was said to be perverse, in view of the subsequent judgments, holding that the vendee has only to prove the agreement, and his willingness to perform his part of the contract without tendering any amount, in view of the law laid down by the Hon'ble Supreme Court in International Contractors Ltd. Vs. Prasanta Kumar Sur (deceased) and others, AIR 1962 Supreme Court 77. The contention of the learned counsel for the appellant on the second substantial question of law cannot be disputed. What is required to be seen is whether the substantial question of law arises, in this case or not. Though the learned lower appellate Court did mention that it was necessary for the plaintiff/appellant to have tendered the amount and should have pleaded this fact in the plaint, however, this is not the ground to non-suit the plaintiff/appellant. The second substantial question of law raised does not arise in R.S.A. No. 507 of 1985 (O&M) -11- the present appeal, as the evidence had showed that the plaintiff, had failed to prove his willingness to perform his part of the contract, and that the plaintiff/appellant had taken a wrong plea. These grounds were sufficient to non-suit the plaintiff in grant of discretionary relief of specific performance. The concurrent finding of fact by the learned Courts below, is not open to challenge in the regular second appeal. Specially when it cannot be said that findings are outcome of mis- reading of evidence or perverse. For the reasons stated, I find no merit in this appeal, which is ordered to be dismissed. However, keeping in view that the payment of earnest money was duly proved, the learned Courts below should have granted interest on the amount of earnest money wrongly withheld by defendant No.1, specially in view of the opposition by his sons to the execution of the sale deed. The decree under appeal is modified, to the limited extent that the appellant shall also be entitled to interest @ 8% from the date of payment of earnest money till its realisation. With this modification in the judgment and decree, the appeal is ordered to be dismissed, but with no order as to costs. (Vinod K. Sharma) Judge February 19, 2010 R.S.