Regular Second Appeal No.849 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.849 of 2010 Date of Decision:-23.8.2011 Rajinder Pal Sharma ---Appellant Versus Raj Kumar ---Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Yogesh Kumar Sharma, Advocate for the appellant. Mr.Hemant Sarin, Advocate for the respondent. M ehinder S ingh S ullar , J. (Oral) The crux of the facts, which requires to be noticed for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, is that Raj Kumar son of Kapoor Chand respondent-plaintiff (for brevity “the plaintiff”) filed the suit against Rajinder Pal Sharma appellant-defendant (for short “the defendant”) for a decree of possession, by way of specific performance of the agreement to sell dated 17.8.2005 (Ex.PW1/1). 2. The case set up by the plaintiff, in brief in so far as relevant, was that the defendant entered into an agreement to sell (Ex.PW1/1) with him, in respect of the land in dispute, situated in the area of village Salarheri, Tehsil and District Ambala, for a total sale consideration of ` 4,85,000/- and received ` 2,80,000/- as earnest money, which was recognized in the agreement to sell. The balance sale consideration of ` 2,05,000/- was agreed to be paid by the plaintiff to the defendant before the Sub-Registrar, Ambala Cantt at the time of registration of the sale deed dated 5.9.2005. He (plaintiff) has always been and is still ready & willing to perform his part of contract, but the defendant avoided the execution of the sale deed on the one pretext or the other, as he was never ready and willing to fulfill Regular Second Appeal No.849 of 2010 -2- his part of contract. The plaintiff claimed that on 5.9.2005, he went to the office of Sub Registrar, alongwith the balance sale consideration of ` 2,05,000/- etc. for getting the sale deed executed and registered, in terms of the agreement to sell (Ex.PW1/1). He also informed the defendant in this regard, requested him to reach the office of Sub Registrar on 5.9.2005 and to receive the remaining amount of consideration for registration of the sale deed, but in vain. He (plaintiff) got his presence marked by moving an application (Ex.PW2/3). 3. Levelling a variety of allegations and narrating the sequence of events, in all, according to the plaintiff that he always remained and is still ready and willing to perform his part of contract, but the defendant defaulted in this behalf despite legal notice, which necessitated him to file the present suit. On the basis of aforesaid allegations, the plaintiff filed the suit against the defendant for a decree of possession by way of specific performance of the contract of sale, in the manner indicated hereinbefore. 4. The defendant contested the suit and filed the written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit, suppression of material facts, cause of action and locus standi of the plaintiff. The defendant pleaded that prior to the agreement to sell dated 17.8.2005 (Ex.PW1/1), another agreement to sell dated 5.7.2005 (Ex.D2) was executed between the parties, wherein, the earnest money of ` 50,000/- was paid at the time of agreement, but since the plaintiff was unable to execute the sale deed, in pursuance of the earlier agreement to sell (Ex.D2), so, in the wake of his request, a fresh agreement to sell (Ex.PW1/1) was executed between the parties. The plaintiff paid another additional amount of ` 2,30,000/- as earnest money to him. As such, the total earnest money of ` 2,80,000/- was paid by the plaintiff to the defendant. However, it was denied that the plaintiff came to the office of Sub Registrar on 5.9.2005 to perform his part of contract. The defendant claimed that he was ready and willing to perform his part of contract and remained present in the office of Regular Second Appeal No.849 of 2010 -3- Sub Registrar, but the plaintiff did not turn up to get the sale deed executed and registered on that day. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiff filed the replication. From the pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case. 6. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. 7. The trial Court dismissed the suit of the plaintiff, by virtue of judgment and decree dated 15.6.2009. 8. Aggrieved by the decision of the trial Court, the plaintiff filed the appeal, which was accepted and his suit was decreed by the 1st Appellate Court, by means of impugned judgment and decree dated 24.12.2009. 9. The appellant-defendant did not feel satisfied with the impugned judgment and decree of the 1st Appellate Court and preferred the present regular second appeal. That is how I am seized of the matter. 10. After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant appeal in this context. 11. Ex facie, the argument of learned counsel for the appellant-defendant that since the plaintiff was not ready and willing to perform his part of contract, so, the trial Court has rightly dismissed his suit, but the first appellate Court committed a legal mistake in decreeing his suit for possession by way of specific performance of the agreement, lacks merit. 12. As is evident from the record that the execution of the agreement to sell dated 17.8.2005 (Ex.PW1/1) and passing of the earnest money, is admitted Regular Second Appeal No.849 of 2010 -4- between the parties. The trial Court, in a very cryptic manner, has negatived the claim of the plaintiff mainly on the ground of existence of earlier agreement (Ex.D2). The mere fact that it was not mentioned in the plaint and was only so described in the replication, which is also part of the pleadings, would not amount to concealment of facts, as urged on behalf of the defendant. The moment agreement to sell (Ex.PW1/1) is executed between the parties, then the existence of first agreement (Ex.D2), pales into insignificance in this respect and the trial Court has illegally placed undue reliance on it. Moreover, the trial Court has vaguely observed that “there is nothing on record to show that the plaintiff had always been and was still ready and willing to perform his part of contract.” There is a positive evidence on record that the plaintiff went to the office of Sub Registrar and moved an application (Ex.PW2/3) to get his presence marked on 5.9.2005, alongwith the entire balance sale consideration amount etc. including ` 1 lac, which he withdrew from his firm account (Ex.PW2/7). The plaintiff has categorically stated, on oath, that the entire remaining sale consideration amount etc. was with him in the office of Sub Registrar on 5.9.2005. 13. In this manner, as the trial Court has vaguely and illegally ignored the cogent evidence in this regard with impunity, therefore, the first appellate Court has rightly rectified the error committed by the trial Court, by virtue of impugned judgment dated 24.12.2009, which, in substance, is as under:- “In so far as the question of the appellant/plaintiff being ready and willing to execute his part of the contract is concerned, he led ample evidence on record to prove that he was always ready and willing to execute his part of the contract and that he was ready and willing on 5.9.2005 with the balance sale consideration etc. Reference in this regard can be made to the application Ex.PW2/3 which was moved by the appellant/plaintiff to get his presence marked before the Sub Registrar, Ambala Cantt. on 5.9.2005. Reference can also be made to the statement of account Ex.PW2/7 which shows that a sum of Rs.1,00,000/- had been withdrawn by the appellant/plaintiff on that date. Further while appearing as PW2 the appellant/plaintiff has stated in so many words that he was ready with the Regular Second Appeal No.849 of 2010 -5- balance sale consideration and was present in the office of the Sub Registrar, Ambala Cantt. on 5.9.2005 for the execution of the sale deed. No doubt the respondent/defendant has also produced a similar application to show that he was also present in the office of the Sub Registrar, Ambala Cantt. However, the fact which cannot be lost sight of is that the appellant/plaintiff was also present with the balance consideration. Nothing has been shown to prove that the appellant/plaintiff was not ready with the balance sale consideration and other expenses. Further as per the agreement dated 17.8.2005, the sale deed was to be executed on 5.9.2005. The suit was filed on 24.11.2005 i.e. just after about two months which also shows that the appellant/plaintiff was ready and willing to perform his part of the contract. Further it is too well known that where an agreement is proved, the relief of specific performance should normally be granted and should not be denied unless and until it is a case of extreme hardship etc. Reliance in this regard can be placed upon Abhey Singh and others' case (Supra), Ram Singh's case (Supra) and Abdul Sattar and other's case (Supra).” 14. Meaning thereby, the Ist appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, it has recorded the above-mentioned findings of fact. Such findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out in the impugned judgment and decree by the learned counsel for the appellant-defendant, so as to take a contrary view than that of well reasoned decision already arrived at by the Ist appellate Court. 15. No other meaningful argument has been raised by the learned counsel for the appellant-defendant to assail the findings of the Ist appellate Court in this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on his behalf, in this relevant direction, have already been duly Regular Second Appeal No.849 of 2010 -6- considered and dealt with by the Ist appellate Court. 16. Above-all, the entire case revolves around the re-appreciation and re- appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted in the impugned judgment and decree of the Ist appellate Court, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, in the obtaining circumstances of the present case. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 18. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 23.8.2011 Judge AS Whether to be referred to reporter?Yes/No