RSA No.66 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.66 of 2010(O &M) Date of Decision: January 15 , 2010 Narinder Nath Sharma and another ...... Appellants Versus Raminder Kaur and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr. Sanjeev Pandit, Advocate for the appellants. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against concurrent judgments of the Courts below whereby suit of the appellants for specific performance has been decreed in the alternative for recovery of earnest money. The following questions have been proposed:- i) Whether respondents/defendants (Jitender Singh) has executed agreement to sell dated 28.7.98 with the appellants at the rate of Rs. 2800/-per Sq.Yards and received Rs.10,000/- as earnest money for the plot in dispute? ii)Whether the appellants/plaintiffs were always ready and willing to perform their part of agreement? iii)Whether the appellants/plaintiffs are entitled to specific performance of the agreement to sell in question? iv)Whether the suit of the appellants/plaintiffs is liable to be decreed in toto as prayed in the suit? RSA No.66 of 2010(O&M) 2 v) Whether the courts below have misread the pleadings, evidence and documents on the record of the case while partly disallowing this suit of the appellants/plaintiffs? vi)Whether the findings of the courts below of issues No. 1 to 5 & 10 are liable to be reversed by allowing the suit in toto? vii)Whether a grave an manifest injustice has been caused to the appellants/plaintiffs by partly disallowing the suit? viii)Whether the action of the courts below is wrong, arbitrary, unconstitutional against the evidence, pleading and documents on the record of the case and hence liable to be reversed by allowing the suit in toto? It would be seen that all the questions proposed are pure questions of fact. In this case both the courts have relied on two facts for denying the relief of specific performance. The first fact is that against a total sale consideration of Rs. 4,68, 000/- earnest money of only Rs.10,000/- was paid. The second fact which has been considered by the Courts below is that the evidence suggested that the vendor was a drug addict and in fact died in hospital within a few days of execution of the agreement to sell. Learned counsel has sought to counter this by arguing that actually in this agreement to sell itself it was mentioned that within 15 days the vendor would get a boundary wall constructed around the plot in dispute at the cost of the appellants and, would then be entitled to a further amount of Rs.56,000/-. Learned counsel has also argued that just about a month and a half prior to the execution of the instant agreement to sell the said vendor had sold some other property and this also showed that he was capable of watching his interest as well as he further stated that the legal representatives of the vendor never challenged that sale deed. Be that as it may, it is trite to say that the relief of specific performance is ultimately a discretionary relief. Learned counsel has not RSA No.66 of 2010(O&M) 3 been able to persuade me that the discretion exercised by the courts below either suffers from irregularities or is vitiated on account of the fact that it has been based on no evidence or on such perverse misreading of the evidence so as to render the same liable for interference under Section 100 CPC. Consequently holding the proposed questions against the appellant, this appeal as well as the application for stay are dismissed. (AJAY TEWARI) JUDGE January 15, 2010 sunita