RSA No. 3891 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 3891 of 2008 (O&M) Date of Decision: 12.5.2011. Anguri Devi and others .......Appellants Vs. Raj Kumar and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Amit Jain, Advocate for the appellants. Mr. Rakesh Gupta, Advocate for the respondents. ..... SABINA, J. Plaintiffs had filed a suit for specific performance of agreement to sell dated 7.7.1993. The case of the plaintiffs in brief was that the defendants had agreed to sell the land measuring 16 Kanals vide agreement to sell dated 7.7.1993 @ ` 85,000/- per acre. The defendants had received a sum of ` 40,000/- towards earnest money on 7.7.1993 and had executed a receipt in this regard in favour of the plaintiffs. Due to inadvertence, the date had been mentioned on the receipt as 8.7.1993 instead of 7.7.1993 and the said mistake was a clerical one. Defendants had failed to perform their part of the contract and had failed to execute the sale deed in favour of the plaintiffs. Hence, the suit was filed by the plaintiffs. RSA No. 3891 of 2008 (O&M) -2- Defendants, in their written statement, denied the contentions in the plaint. It was averred that no agreement to sell had been executed between the parties on 7.7.1993. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled for a decree for specific performance of the agreement to sell dated 7.7.1993 in the suit land? OPP 2. Whether the suit of the plaintiff is not maintainable in its present form? OPD 3. Whether the suit of the plaintiff is time barred? OPD 4. Whether suit of the plaintiff is not maintainable against the L.Rs of deceased Sharfi Devi? OPD 5. Relief.” Additional Civil Judge (Senior Division) vide judgment and decree dated 4.1.2007, dismissed the suit of the plaintiffs. Aggrieved by the said judgment and decree, plaintiffs preferred an appeal and the same was allowed by the Additional District Judge vide judgment and decree dated 6.5.2008. Consequently, the suit of the plaintiff was decreed. Hence, the present appeal by the defendant No.1 and defendant No.2 through her legal representatives. Learned counsel for the appellants has submitted that a perusal of the agreement to sell in question reveals that the paper, on which the agreement to sell in question was scribed, was purchased on 8.7.1993 and hence, the agreement to sell in question could not have been executed a date prior to the same RSA No. 3891 of 2008 (O&M) -3- i.e. 7.7.1993. Learned counsel for the respondents, on the other hand, has submitted that it was only due to clerical error that the date in the agreement to sell in question was mentioned as 7.7.1993 instead of 8.7.1993. The date of receipt had been correctly mentioned as 8.7.1993. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves to be allowed. The substantial question of law that arises in this case is whether the findings of the learned first appellate court are against the pleading and evidence on record and are, thus, perverse. The relevant portion of para 2 of the plaint is reproduced as under:- “2. That the defendants No. 1 and 2 Smt. Anguri Devi and Smt. Sarfi Devi entered into an agreement to sell the land measuring 16 Kanals 0 ml. Out of the land mentioned in para no.1 of the plaint, vide agreement to sell dated 7.7.1993, at the rate of Rs. 85,000/- per acre along with all the rights, appurtinent thereto in favour of plaintiffs Raj Kumar and Haria. The defts. received a sum of Rs. 40,000/- as earnest money on 7.7.1993, and executed a separate receipt dated 7.7.1993. The copies of agreement dated 7.7.1993 and receipt dated 7.7.1993 are attached herewith. But on receipt date 8.7.1993 is written inadvertently in place of 7.7.1993 which is clerical mistake. It is pertinent RSA No. 3891 of 2008 (O&M) -4- to mention here that Haria son of Telu plff. no.2 had died leaving behind the plaintiffs no. 2(i) to (v) as his legal heirs. Similarly the defendant no.2 Smt. Sarfi Devi had died leaving behind her legal representatives defendants no. 2(i) to (vi). So the legal heirs of deceased Haria plaintiff no.2 and deceased Smt. Sarfi Devi deft. no.2, have been impleaded as parties for the proper adjudication of the matter. The plaintiff no.2(v) is minor, who is living under the care and custody of her mother Smt. Pista plff. no.2(i), who have got no adverse interest to that of minor.” Thus, as per the case of the plaintiffs themselves, the agreement to sell in question had been executed on 7.7.1993. The earnest money had also been paid by the plaintiffs to the defendants on 7.7.1993. It has further been averred in the plaint that the date on the receipt had been written due to inadvertence as 8.7.1993 whereas, the receipt was executed on 7.7.1993. The plaintiffs had led their evidence to the similar effect. A perusal of the agreement to sell in question Ex. P-1, reveals that the paper, on which it was scribed, had been purchased on 8.7.1993. It is not understandable as to how the agreement to sell in question could have been executed on a date prior to the purchase of the paper. Apparently, after the purchase of paper, the agreement to sell in question had been written thereon by giving a wrong date. The receipt (Ex. P-2) qua the payment of earnest money is dated 8.7.1993. It is not the case of the plaintiffs that due to clerical error, the date on RSA No. 3891 of 2008 (O&M) -5- agreement to sell had been written as 7.7.1993 instead of 8.7.1993. Rather, the specific case of the plaintiffs is that the agreement to sell in question was executed on 7.7.1993 and rather the date on the receipt had been written as 8.7.1993 instead of 7.7.1993 due to a clerical error. A perusal of the agreement to sell in question further reveals that the defendants were not owners of the suit property on the date of execution of the alleged agreement to sell as a case was pending in the civil court qua the suit property. This also shows that terms of the agreement to sell in question were uncertain. The plaintiffs had not come to the court with clean hands and had not stated correct facts. Consequently, the suit of the plaintiffs was liable to be dismissed. The learned first appellate court has made out a new case for the plaintiffs and held that the date in the agreement to sell in question had been wrongly typed as 7.7.1993 instead of 8.7.1993. This was not the case of the plaintiffs nor there was evidence in this regard on record. Hence, the findings of the learned first appellate court are against the pleadings and evidence on record and are perverse. The substantial question of law that arises in this case stands answered accordingly. Hence, this appeal is allowed. The impugned judgment and decree dated 6.5.2008, passed by the learned first appellate court, are set aside. The judgment and decree 4.1.2007, passed by the learned trial court are upheld. (SABINA) JUDGE May 12, 2011 Gurpreet