REGULAR SECOND APPEAL NO.2276 OF 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2276 of 2009 Date of Decision: 11.02.2011 Suresh .... Appellant Versus Sanjay Garg .... Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Suryakant Gautam, Advocate for the appellant. Mr. G. S. Thind, Advocate for the respondent. L. N. MITTAL, J. (ORAL) Defendant Suresh who was successful in the trial court but has been unsuccessful in the lower appellate court has filed the instant second appeal. Respondent-plaintiff Sanjay Garg filed suit against defendant-appellant for possession of the suit house by specific performance of agreement dated 07.02.2002 alleging that the defendant agreed to sell the suit house to the plaintiff for Rs.70,000/- and received Rs.40,000/- as earnest money and executed the aforesaid agreement. The plaintiff was always ready and willing to perform his part of the contract but defendant committed breach thereof. The defendant alleged that he had borrowed Rs.8,500/- from the plaintiff and he had to pay Rs.100/- per day as interest to the plaintiff. The defendant paid Rs.10,000/- to the plaintiff towards loan and interest. If the alleged agreement is proved, the same REGULAR SECOND APPEAL NO.2276 OF 2009 -2- might have been obtained as security for the aforesaid loan. The plaintiff is a money lender and he obtains security in the shape of pronote and receipt, agreement etc. from his debtors. It was also pleaded that market price of the suit house was Rs.6,00.000/- and, therefore, the defendant could not agree to sell the same for Rs.70,000/- only. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Samrala vide judgment and decree dated 09.04.2008 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Ludhiana vide judgment and decree dated 07.01.2009 and thereby suit filed by the plaintiff stands decreed. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. The plaintiff himself stepped into witness box as PW-1 and examined Vishesh Kumar, Deed Writer as PW-2 who scribed the agreement and also examined Nand Kishore as PW-3 attesting witness of the agreement. All of them stated according to plaintiff's version that the defendant duly executed the aforesaid agreement and received Rs.40,000/- as earnest money from the plaintiff. On the other hand, there is sole self-serving testimony of the defendant in support of his version. The defendant has not come to the court with clean hands. He did not categorically plead that the agreement was obtained from him as security for the alleged loan. REGULAR SECOND APPEAL NO.2276 OF 2009 -3- On the contrary, the defendant wanted to keep his options open. The defendant alleged that the agreement was not executed by him, but if the agreement is proved, then it was obtained by fraud and misrepresentation and as security for loan. All these three pleas are self-contradictory. On the contrary, the plaintiff has led sufficient evidence to prove due execution of the agreement. The plaintiff has examined scribe of the agreement as well as one attesting witness of the agreement, besides himself entering into witness box. This cogent evidence of the plaintiff is not rebutted by oral self-serving statement of the defendant. On the contrary, the defendant in the written statement impliedly admitted the execution of the agreement by him although allegedly as security for the loan. Said version of the defendant that the agreement was executed as security for the loan is not proved. There is no reason why Vishesh Kumar, Deed Writer PW-2 would depose falsely against the defendant. There is also no reason to discard the testimony of Nand Kishore, PW-3 attesting witness of the agreement. Learned counsel for the appellant contended that the plaintiff did not file any replication to the written statement of the defendant and therefore, facts pleaded by the defendant in the written statement stand admitted. Reliance in support of this contention has been placed on the judgment of this court in case of Sujan Kaur Versus Chand Singh, 2003(3) Civil Court Cases 254 (P&H). The contention cannot be accepted. In the case of Sujan Kaur (supra), plaintiff had filed replication but did not deny the REGULAR SECOND APPEAL NO.2276 OF 2009 -4- counter version of the defendant in the replication and, therefore, the said version was deemed to have been admitted to be correct. In the instant case, however, the plaintiff did not file any replication and, therefore it cannot be said that facts pleaded by the defendant in the written statement stand admitted. In addition to it, plaintiff's version in the plaint itself is sufficient denial of version of the defendant pleaded in the written statement. Learned counsel for the appellant next contended that the plaintiff has not proved his readiness and willingness to perform his part of the contract. It was contended that affidavit Exhibit P-3 in this regard remained with the plaintiff although its copy should have remained with the Executive Magistrate who attested it. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of Zorawar Singh and another Versus Sarwan Singh, 2002(1) PLH (459). The contention is completely misconceived. In the case of Zorawar Singh (supra), application had been made by the plaintiff to the Sub-Registrar who returned the original application to the applicant after making endorsement on it and no record thereof was kept in the office of the Sub-Registrar. However, in the instant case, the plaintiff did not move any application to the Sub-Registrar/Executive Magistrate. On the contrary, the plaintiff simply got his affidavit attested from the Executive Magistrate to depict that the plaintiff was present in the office of Sub-Registrar to get the sale deed executed in terms of the agreement. Affidavit Exhibit P-3 as well as REGULAR SECOND APPEAL NO.2276 OF 2009 -5- affidavit Exhibit P-2 depict that they bear serial numbers and dates of attestation of the said affidavits. Consequently, presumption under Section 114 of the Evidence Act regarding correctness of the official acts also arises in the instant case. On the other hand, copy of affidavit attested by a Magistrate is never kept in official record. The sale deed as per agreement was to be executed upto 06.02.2003. Accordingly, the plaintiff went to the office of Sub-Registrar on 06.02.2003 to get the sale deed executed but the defendant did not turn up. Plaintiff affirmed affidavit Exhibit P-3 dated 06.02.2003 attested on 07.02.2003 in this regard. Even thereafter, the plaintiff again went to the office of Sub-Registrar on 10.02.2003 and got the affidavit Exhibit P-2 dated 10.02.2003 attested on the same date. These affidavits depict that respondent-plaintiff has always been willing and ready to perform his part of the contract. In addition to it, the plaintiff filed the suit on 22.07.2003 i.e. without any delay after date for execution of the sale deed, as stipulated in the agreement, expired. Filing of the suit without delay also depicts readiness and willingness of the plaintiff to perform his part of the contract. On the contrary, it is not even the case of the defendant that the plaintiff was not ready or willing to perform his part of the contract. The defendant's version is of denial of the agreement. The defendant has also not alleged that he was ever ready or willing to perform his part of the contract. On the contrary, plaintiff has proved his readiness and willingness REGULAR SECOND APPEAL NO.2276 OF 2009 -6- to perform his part of the contract by sufficient cogent evidence. Learned counsel for the appellant contended that stamp paper for affidavit Annexure P-3 was purchased on 05.02.2003 although plaintiff was to appear before the Sub-Registrar on 06.02.2003 and it is not explained as to why the stamp paper for the affidavit was purchased a day in advance. The contention cannot be accepted because the plaintiff was not cross-examined on this aspect. Mere purchase of stamp paper for affidavit a day in advance would not in any way go against the version of the plaintiff regarding his readiness and willingness to perform his part of the contract. For the reasons aforesaid, I find no merit in the instant second appeal. Learned lower appellate court has rightly decreed the suit of the plaintiff. Plaintiff has proved his case by cogent and reliably evidence, whereas the defendant has failed to prove his version. Finding recorded by the lower appellate court does not warrant interference in second appeal as it is not shown to be perverse or illegal nor it is shown to be based on misreading and miss-appreciation of evidence. No question of lay, much less substantial question of law, arises for determination in the instant second appeal. Accordingly the appeal is dismissed. ( L. N. MITTAL ) JUDGE 11th February, 2011 'raj'