IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.4508 of 2004 Date of Decision: 30.3.2009 Rajinder Pal Singh. ....... Appellant through Shri H.N.S.Gill,Advocate. Versus Lachhman Dass. ....... Respondent through Ms. Swatanter Kapoor,Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers 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? .... Mahesh Grover,J. This appeal is directed against the judgments and decrees dated 16.5.2000 and 19.8.2004 passed respectively by the Additional Civil Judge (Senior Division), Patiala (hereinafter described as `the trial Court') and the Additional District Judge ( Ad hoc ), Patiala (referred to hereinafter as `the First Appellate Court') whereby the suit and the appeal of the plaintiff- appellant were dismissed. The respondent filed a suit for specific performance of an agreement to sell dated 4.6.1993 allegedly executed by the defendant- respondent in his favour. It was alleged that the respondent had agreed to sell his house situated in Jai Jawan Colony, Badunagar, Patiala for a total R.S.A.No.4508 of 2004 -2- .... consideration of Rs.1,20,000/- and the sale deed was to be executed on or before 31.12.1993. Rs.one lac were stated to have been paid as earnest money on the date of agreement to sell and the remaining amount of Rs.20000/- and other registration expenses were to be paid at the time of execution of sale deed. It was pleaded that the appellant went to the office of Sub Registrar along with the balance sale consideration etc. on 31.12.1993,but the respondent did not turn up. Hence, the suit. Upon notice, the respondent appeared and filed written statement denying the agreement to sell. He pleaded fraud. It was further pleaded by him that he had never agreed to sell his house to the appellant and in fact, an agreement had been entered upon on 9.6.1993 to sell the house in question to Smt.Dipali wife of Rattan Lal for a consideration of Rs.80,000/- out of which Rs.20,000/- had been received by him as earnest money and the sale deed was to be executed on or before 20.7.1993,but with the mutual consent of the parties, the time was extended up to 25.8.1993 on which date Smt.Dipali expressed her inability to purchase the house and requested him to return the earnest money. It was further averred that wife of the respondent is working as a maid-servant in the house of Surjit Singh Dhillon, brother of the appellant and the respondent had obtained a loan of Rs.6000/- through ante-dated cheque from him, i.e. Surjit Singh Dhillon, so as to return the earnest money, whereas Rs.14000/- were arranged by him personally. It is on the pretext of giving loan of Rs.6000/- that certain papers were got thumb marked from him and the same had been abused and the agreement to sell in question was created. R.S.A.No.4508 of 2004 -3- .... On the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether the defendant executed agreement dt. 4.6.93 to sell the house in question?OPP 2. If issue no.1 is proved, whether the agreement is result of fraud and fabricated document?OPD 3. Whether the plaintiff is ready and willing to perform his part of the agreement?OPP 4. Whether the plaintiff is entitled to specific performance of agreement to sell?OPP 5. Relief. After appraisal of the entire evidence on record, the trial Court dismissed the suit. It was held that the appellant had failed to establish the agreement to sell, as also the passing of sale consideration of Rs.one lac which was more than substantial portion of the agreed amount. It was also concluded that since possession of the house in question was not parted with after paying of the major portion of the sale consideration, the agreement was suspicious. In appeal, the findings of the trial Court were affirmed by the First Appellate Court. Hence, this Regular Second Appeal. Learned counsel for the appellant has contended that the findings of the Courts below are perverse and the agreement to sell was validly proved. It was further contended that mere non-delivery of R.S.A.No.4508 of 2004 -4- .... possession of the house in question does not imply that the agreement itself was bad. On the strength of this, it was pleaded that both the Courts have recorded erroneous findings which deserve to be set aside. On the other hand, learned counsel for the respondent has contended that the findings recorded by the Courts below are just and proper for the simple reason that the appellant had miserably failed to prove the execution of the agreement to sell in his favour. She referred to the detailed reasoning adopted by the Courts below to discard the agreement to sell. She, therefore, argued that the appeal which is without merit be dismissed. I have thoughtfully considered the rival contentions and have perused the impugned judgments. In a suit for specific performance, three essential ingredients are to be proved, i.e., (i) a valid agreement, (ii) passing of sale consideration and the readiness and willingness of the proposed vendee to perform his part of contract. In the instant case, the appellant has failed to cross the first hurdle. If the agreement to sell is to be tested, then it has come in evidence that B.S.Dhaliwal, Advocate had scribed the agreement to sell and strangely enough, it has been noticed by the Courts below that this document which is Exhibit PW2/A, shows that it was recorded by some different person and not by Shri B.S.Dhaliwal. The document having been scribed by Shri B.S.Dhaliwal has come in the testimony of Shri Ashok Bawa-PW2, whose signatures also appear thereon in different ink, which has resulted in R.S.A.No.4508 of 2004 -5- .... creating of suspicion in the mind of the Courts below. In any eventuality, the appellant having failed to produce the scribe, has not been able to discharge his onus satisfactorily. Even though, Shri Ashok Kumar Bawa,one of the marginal witnesses, has been examined, yet, his testimony is also not reliable for the simple reason that he has stated that no sale consideration was ever passed in his presence, whereas PW3-Surjit Singh Dhillon, who is brother of the appellant, stated that money was counted in the presence of Ashok Kumar Bawa, Advocate. If there had been any truth in this, then Ashok Kumar Bawa would have come out with the same in his testimony. The appellant had pleaded that the amount had been paid after obtaining the same from a Commission Agent, but he has also not been produced him to testify to this effect. No account books of the Commission Agent were summoned from where it could be inferred that the amount was actually taken by the appellant for onward disbursement to the respondent as a measure of consideration for agreement to sell. In this view of the matter, both the Courts below have rightly concluded that the agreement to sell was not free from blemish and, therefore, they have rightly discarded it. Once the agreement to sell being rendered suspicious on the ground of its validity, as also on the ground that the sale consideration has not passed on, then in these circumstances, there was hardly any ground for the Courts below to answer the suit for specific performance in favour of the appellant. Therefore, the findings recorded by them cannot be termed perverse so as to warrant interference in the Regular Second Appeal. R.S.A.No.4508 of 2004 -6- .... No substantial question of law has been shown to have arisen for determination in this appeal which is dismissed being devoid of any merit. March 30,2009 ( Mahesh Grover ) “SCM” Judge