IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1475 of 2011 (O&M) Date of Decision: 20 th May, 2011 Jasvir Singh ….Appellant Versus Vakil Chand & another ….Respondents CORAM: - HON’BLE MR. JUSTICE L. N. MITTAL PRESENT: Mr. Naresh Jain, Advocate for the appellant. * * * * * L. N. Mittal, J. (Oral) CM No.4106-C of 2011 For reasons mentioned in the application, which is accompanied by affidavit, delay of 14 days in filing the appeal is condoned. CM No.4107-C of 2011 Allowed as prayed for. Main Appeal Defendant-Jasvir Singh, having been failed in both the courts below, has filed the instant second appeal. Respondents/plaintiffs Vakil Chand and Darshan Kumar both sons of Ved Parkash filed suit against defendant-appellant for RSA No.1475 of 2011 (O&M) possession of 12 Kanals 9 Marlas suit land by specific performance of agreement dated 17.09.1999 alleging that the defendant being owner in possession of the suit land agreed to sell the same to the plaintiffs at the rate of Rs.2,20,000/- per acre and received Rs.2,27,000/- as earnest money and executed agreement dated 17.09.1999. Sale deed was to be executed up to 15.03.2000. Accordingly, after prior intimation to the defendant, plaintiffs went to the office of Sub-Registrar on 15.03.2000 to get the sale deed executed in terms of the agreement but the defendant did not turn up and committed breach of the agreement. Even thereafter, the plaintiffs requested the defendant to execute the sale deed in terms of the agreement but he did not do so, necessitating the filing of the suit. The defendant in his written statement broadly denied the plaint averments. The defendant while admitting that he is owner of the suit land denied having agreed to sell the same to the plaintiffs and denied having received any sale consideration or having executed any agreement. It was pleaded that the plaintiffs run business as commission agent, cloth merchant and also deal in pesticides. The defendant used to sell his crop through the plaintiffs and also used to purchase clothes and pesticides etc. from them. As security, plaintiffs had been obtaining signatures of defendant on various blank papers. The impugned agreement has been fabricated by the plaintiffs without consideration. -2- RSA No.1475 of 2011 (O&M) Learned Additional Civil Judge (Senior Division), Gidderbaha vide judgment and decree dated 19.07.2010 decreed the plaintiffs’ suit. First appeal preferred by defendant has been dismissed by learned Additional District Judge, Sri Muktsar Sahib vide judgment and decree dated 18.11.2010. Feeling still aggrieved, defendant has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. In order to prove his case, the plaintiff No.2 himself appeared in the witness box as PW-2 and examined Surinder Kumar Luthra, Document Writer PW-1 (scribe of the agreement) and Raj Kumar PW-3 and Darshan Singh PW-4 attesting witnesses of the impugned agreement Exhibit P-2. All of them have broadly stated according to plaintiff’s version. On the contrary, defendant himself appeared as DW-1 and broadly stated according to his own version. He also examined Balbir Singh DW-2 and Ajmer Singh DW-3 who have made general statements regarding practices of commission agents in line with the defence set up by the defendant. Plaintiffs have led sufficient cogent evidence to prove due execution of the impugned agreement by defendant and payment of earnest money to the defendant. Statement of plaintiff No.2 in this -3- RSA No.1475 of 2011 (O&M) regard is corroborated by statements of both attesting witnesses of the agreement as well as scribe of the agreement. Their statements could not be impeached in cross-examination. They had no enmity with the defendant to depose falsely against him. On the other hand, defendant admitted his signatures on the impugned agreement. The defendant has failed to prove that his signatures had been obtained on blank paper. Solitary statement of defendant in this regard is not sufficient to discharge the heavy onus on him in this regard. Statements of Balbir Singh DW-2 and Ajmer Singh DW-3 have no probative value on this aspect because they were not present when defendant affixed the signatures on the impugned agreement. Learned counsel for the appellant, however, vehemently contended that plaintiffs have failed to prove their readiness and willingness to perform their part of the agreement and therefore they are not entitled to relief of specific performance. It was pointed out in this regard that the suit was filed on 15.03.2003 i.e. on the last day of limitation period of three years from the date stipulated in the agreement for execution of sale deed. I have carefully considered the aforesaid contentions which on first blush appear to be forceful, but on proper scrutiny, the contentions are found to be meritless. The plaintiffs appeared before the Sub-Registrar on 15.03.2000 to get the sale deed -4- RSA No.1475 of 2011 (O&M) executed in terms of the agreement, but the defendant did not turn up and thereupon plaintiffs moved application Exhibit P-4 depicting their presents before the Sub-Registrar. In addition to it, the plaintiff’s had paid almost 2/3rd of the sale consideration at the time of impugned agreement itself. Filing of the suit although belatedly but within limitation period also depicts readiness and willingness of the plaintiffs to perform their part of the agreement. On the contrary, the defendant even denied the very execution of the agreement. It is thus not the case of the defendant that he was ever ready or willing to perform his part of the contract. It is also not the case of the defendant that plaintiffs were not ready and willing to perform their part of the contract. On the other hand, plaintiffs’ evidence that they have always been ready and willing to perform their part of the contract stands unrebutted. Had the defendant come with clean hands to the Court by pleading that he had executed the agreement and he was always ready and willing to perform his part of the contract and the plaintiffs were not ready and willing to perform their part of the contract, then perhaps the defendant could have advanced the aforesaid contention. However, in the instant case, the defendant himself committed breach of the agreement. He did not execute the sale deed in terms of the agreement on 15.03.2000 as stipulated in the agreement although the plaintiffs attended the office of Sub-Registrar on that date to get -5- RSA No.1475 of 2011 (O&M) the sale deed executed in terms of the agreement. The plaintiffs have thus successfully proved that they have always been ready and willing to perform their part of the contract, whereas defendant committed breach of the contract. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the courts below in favour of the plaintiffs/respondents is fully justified by the evidence on record. The said finding is not depicted to be perverse or illegal in any manner nor it is based on misreading or misappreciation of the evidence on record. Consequently, said finding does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 20th May, 2011 ‘raj’ -6-