RSA No. 912 of 2005 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 912 of 2005 Date of decision: December 9 ,2008 Baljinder Kaur wife of Gurmit Singh ..Appellant. Versus Rajesh Kumar son of Gurdev Singh ..Respondent Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. Ashok Singla, Advocate for the appellant. Mr. B.S.Sidhu, Advocate for the respondent. ... Rakesh Kumar Garg,J. This is defendants second appeal challenging the judgment and decrees of the courts below whereby the suit of the plaintiff-respondent for specific performance of the agreement regarding the suit property has been decreed and the defendant has been further restrained from alienating the suit land to any other person. The case of the plaintiff as set up in the plaint is that on 21.1.1998, the defendant executed the agreement to sell Ex.P7 thereby agreeing to sell the suit property in favour of the plaintiff for a sum of Rs.2,55,000/- and she received a sum of Rs. 1,50,000/- as earnest money at the time of execution of the agreement. The agreement was also got attested from the Executive Magistrate, Muktsar. As per the terms of the agreement, the sale deed was to be executed on or before 20.7.1998 on receipt of the balance sale consideration. It is alleged that the plaintiff has always been ready and willing to perform his part of the contract. On the stipulated date, he appeared before the Sub Registrar, Muktsar along with the remaining sale price and other expenses for the execution of the sale deed but the defendant did not turn up. The plaintiff also sent a registered notice on 24.7.1998 to the RSA No. 912 of 2005 2 defendant calling upon her to execute the sale deed as per the terms of the agreement, but she did not execute the sale deed and committed breach of the terms of the agreement Ex.P7. It is further alleged that the defendant also started threatening to alienate the suit property to some other person in violation of the terms of the agreement. The plaintiff requested the defendant repeatedly to execute the sale deed in accordance with the terms of the agreement and not to alienate the suit property, but to no effect. Hence the instant suit. The defendant contested the suit by filing her written statement, in which she raised the preliminary objections that the present suit has been filed only to harass her; the defendant never entered into any agreement to sell the suit property and the plaintiff wants to usurp the property of the defendant on the basis of the alleged forged agreement. On merits, the defendant denied the execution of the alleged agreement as well as the passing of any consideration there under. It was pleaded that the defendant had not purchased any stamp and the agreement is forged and fabricated document. It was further pleaded that the plaintiff and his father are carrying on the business of Karyana opposite to the Bus Stand, Muktsar and the defendant used to purchase Karyana goods from their shop. The daughter and mother-in-law of the defendant fell ill and due to that reason, she could not make the payment of the goods purchased on credit by her from the plaintiff. It is further pleaded that once Gurdev Singh, father of the plaintiff had obtained the signatures of the defendant on some papers on the pretext that the same were to be submitted to the Income Tax Department. The defendant had made the payment to the father of the plaintiff of the price of the goods purchased by her on credit, but the father of the plaintiff also demanded interest from the defendant and when the defendant did not pay the interest, then father of the plaintiff told the defendant that he had got prepared a special power of attorney regarding the house in dispute from the defendant in favour of Pritpal Sharma, Advocate and they would get her house transferred in their names. They also sent a copy of the special power of attorney to the defendant and made a demand of more money, which she could RSA No. 912 of 2005 3 not pay and due to that reason, the plaintiff fabricated the alleged agreement in connivance with the witnesses. While controverting all other allegations, the defendant prayed for dismissal of the suit. The plaintiff also filed replication reiterating the averments of the plaint and controverting the assertions made in the written statement. On consideration of the evidence adduced by the parties and after hearing arguments of their counsel, the trial Court held that the execution of the agreement Ex.P7 as well as the passing of the earnest money of Rs. 1,50,000/- there under to the defendant was established on the record and the defendant had failed to prove that the agreement is the result of fraud and misrepresentation. The trial Court also held that the plaintiff throughout remained ready and willing to perform his part of the contract and, thus, he is entitled to the main relief of specific performance of the agreement and also to the permanent injunction sought for and decreed the suit of the plaintiff-respondent. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the defendant filed an appeal which was also dismissed by the lower Appellate Court vide impugned judgment and decree dated 17.2.2005. Still not satisfied, the defendant has preferred the instant appeal challenging the aforesaid judgment and decrees of the courts below raising the following substantial questions of law:- (i) Whether non-controverting the defendant’s case especially his serious plea of fraud, by the plaintiff by not filing replication is implied admission of the defendant case? (ii) Whether the learned lower Appellate Court illegally rejected an application under Order 41 Rule 27 CPC especially when the document expert after examining the file and taking photographs of the questioned documents with the permission of the court had already submitted his report about the fabrication of the agreement to sell and when the additional evidence sought to be produced is very material and necessary for the just decision of the case. RSA No. 912 of 2005 4 (iii) Whether the learned Courts below are justified in exercising the discretion in favour of the plaintiff and in decreeing the suit for specific performance especially when the plaintiff has concealed the facts and did not approach the court with clean hands and more especially when the questioned agreement is highly doubtful, in genuine as well as harsh? (iii) Whether the learned Courts below have misread and misconstrued the evidence as well as evidence of the parties? Learned counsel for the appellant has vehemently argued that the impugned judgment and decrees of the courts below are erroneous and are against the law and facts. He has submitted that the execution of the agreement Ex.P7 as well as passing of earnest money there under has not been proved. Rather from the evidence on the file, it has been proved that the agreement Ex.P7 is the result of forgery and fraud played by the plaintiff upon the defendant. He has further submitted that the defendant has taken up a specific plea in the written statement that she used to purchase Karyana goods on credit from the shop of the plaintiff and she could not make the payment thereof due to the illness of her family members. The father of the defendant had obtained her signatures on some bank forms on the pretext of submitting the same to the Income Tax Department. Thereafter, the defendant made the payment of the amount due from her to the father of the plaintiff, but he demanded more amount on account of interest, which she could not pay and then the father of the plaintiff told the defendant that he had got prepared a special power of attorney regarding her house in favour of Shri Pritpal Sharma, Advocate and they would get her house transferred in their favour. He has also submitted that the alleged agreement has been attested by Shri Amarjit Singh, Tehsildar on the identification of Adarsh Kumar, but said Adarsh Kumar has not been examined by the plaintiff. There is also no legal requirement for the attestation of the agreement from a Revenue Officer. (Thus, the above said facts mentioned in the written statement of the defendant clearly prove that a fraud has been played by RSA No. 912 of 2005 5 the plaintiff with the defendant in the execution of the alleged agreement). Learned counsel has further submitted that there is difference of ink in the writing and ribbon of the typewriter. On the first page of the agreement, the signatures of Ashok Kumar are in blue ink, whereas, on the second page his signatures are in blank ink. The attestation of the agreement by Darshan Lal is at page No.2, but his attestation is not there on the first page along with Ashok Kumar. The signatures of Darshan Lal are with darker ink as compared to the other writing. He has submitted that if the entire writing was made at one time, then there should be no difference in the ink etc. He also contended that a “Tik” has been put near the signatures of Baljinder Kaur, which goes to show that her signatures were obtained on a blank paper and later on the agreement has been forged by misusing those blank papers. The Tehsildar has also attested the agreement on its first page, whereas, normally the attestation is made at the end of the document. The agreement in question has also not been written by a regular deed writer when there are number of deed writers and Advocates available in the Court complex, Muktsar. The identity of the typist, who had typed the alleged agreement, was not established on the record. He further urged that at page No.1 sufficient space has been left. The particulars of the parties and the witnesses are not in the regular sequence. Thus, the aforesaid infirmities and illegalities prove beyond any doubt that the alleged agreement is the result of forgery and fraud played by the plaintiff upon the defendant. Learned counsel for the appellant has argued that the plea taken up by his client in the written statement has not been controverted by the plaintiff-respondent as the replication filed by the plaintiff cannot be taken into consideration as the same is signed by the Advocate of the plaintiff-respondent only and therefore, the facts as stated in the replication controverting the written statement cannot be taken into consideration. The learned counsel for the appellant has also argued that the grant of decree for specific performance is a discretionary relief but this discretion of the Court is not arbitrary but is guided by sound and reasonable RSA No. 912 of 2005 6 judicial principles. From the facts, it is clearly established that the questioned agreement to sell is highly doubtful and the alleged agreement is qua the residential house of the appellant and on this score alone it is very harsh and therefore, it was not a case where decree in favour of the plaintiff-respondent for specific performance of the agreement should have been passed. Lastly learned counsel for the appellant has argued that the lower Appellate Court has erred at law while dismissing the replication for leading additional evidence under Order 41Rule 27 vide its order dated 17.2.2005 without properly considering the facts that the evidence sought to be produced goes to the route of the matter and if allowed to be produced will clinch the issue. Thus, the judgment and decrees of the courts below are liable to be set aside and the suit of the plaintiff-respondent is liable to be dismissed. On the other hand, learned counsel appearing on behalf of the plaintiff-respondent has supported the findings of the courts below and has argued that no substantial question of law arises in this appeal and the courts below on appreciation of evidence have recorded a finding of fact in favour of the respondent as the appellant-defendant had failed to prove his plea of fraud. Learned counsel has further argued that no such plea of hardship has been taken by the appellant in his written statement and moreover, there is nothing on record to substantiate the said plea and thus the appeal is without any merit and is liable to be dismissed. After giving my thoughtful consideration to the rival contentions put forth by the counsel for the parties, I find no force in the submissions made on behalf of the appellant. At the very outset, it deserves to be noticed that in this case, defendant has admitted her signatures on the agreement Ex.P7. Even otherwise from the evidence on record proved by documentary as well as oral testimonies of witnesses, execution of agreement Ex.P7 stands proved. Defendant-appellant has not been able to find any fault with these findings. The appellant has failed to substantiate his plea of fraud as taken up in defence. The observations of the lower Appellate Court in this regard are as under:- RSA No. 912 of 2005 7 “From the above discussed evidence it comes out that the agreement Ex.P7 was executed by Baljinder Kaur defendant, vide which she agreed to sell her house to the plaintiff for Rs.2,55,000/- and she received a sum of Rs. 1,50,000/- at the time of execution of the agreement. The defendant has not been able to disprove the agreement Ex.P7 and also to prove the plea of fraud as set up by her. Searching cross-examination was directed by the defendant to PW2 Shri Amarjit Singh, Tehsildar and PW4 Darshan Lal, but he could not impeach their credit in any manner. They are quite independent witnesses and there is no reason to disbelieve their testimony. The evidence led by the defendant is not sufficient to rebut the evidence of the plaintiff. The defendant has set up the plea that she used to purchase the Karyana goods on credit from the shop of the plaintiff and his father and when she could not pay the price of the goods owing to the illness of her family members, then the father of the plaintiff started demanding more money on account of interest, which she could not pay and then the father of the plaintiff threatened her that he would get her house transferred in his name as he had got prepared a special power of attorney regarding her house in favour of Shri Pritpal Sharma, Advocate. She has also alleged that the father of the plaintiff had obtained her signatures on the blank papers on some pretext and the plaintiff has forged the present agreement by misusing those blank papers. The defendant has not been able to substantiate this plea and it remains in the air. A Photostat copy of the alleged power of attorney has been produced on the file, but the same has not been proved by the defendant in accordance with law and, thus the same cannot be read into evidence. According to the defendant, the said power of attorney was also attested by PW2 Shri Amarjit Singh, Tehsildar, but the defendant RSA No. 912 of 2005 8 has not [put this Photostat copy of the special power of attorney to him nor any question was put regarding the said special power of attorney in his cross-examination for the reasons best known to her. Shri Pritpal Sharma, Advocate while appearing as DW2 has stated that the alleged power of attorney dated 21.1.1998 is not in his possession. Had there been any truth in the plea of the appellant, then she would have got an explanation regarding the alleged special power of attorney from PW2 Shri Amarjit Singh, Tehsildar, who had allegedly attested the same. Thus, this Photostat copy of the special power of attorney has nothing to do with the agreement in question. It is not the case of the defendant that the agreement Ex.P7 has been executed on the basis of the said special power of attorney. The alleged difference in ink and the type writer ribbon etc. as pointed out by the learned counsel for the appellant also does not make the agreement Ex.P7 as illegal and invalid, the execution of which has been duly proved from the evidence led by the plaintiff. Moreover, the defendant did not produce and examine any Document Expert in order to prove the alleged forgery and fraud. The other points urged by the learned counsel for the appellant that the signatures of Darshan Lal PW4 have not been obtained on the first page of the agreement and the attestation of the agreement by the Tehsildar has been made on the first page are also not sufficient to infer that the agreement is the result of forgery committed by the plaintiff in connivance with the witnesses. The “Tik” near the signatures of Baljinder Kaur defendant also does not render the agreement as a forged document. Normally such like Tiks are put on the documents by the scribe so that there may not be any confusion of signatures or thumb impressions of the parties and witnesses. Thus, the defendant has not been able to establish on the record RSA No. 912 of 2005 9 that the agreement Ex.P7 is a forged document. Further more, it is well settled that once the signatures are accepted on the agreement of sale, the onus to prove that the agreement was got executed from him by deception or fraud, shifts on the defendant. This view of mine stands fortified from the law laid down in 1991 (2) The Punjab Law Reporter, page 92, Durlabh Singh Vs. Nahar Singh and another. In the case in hand no particulars of deception or fraud have been given in the written statement as required by the law. I have gone through the statements of PW2 Shri Amarjit Singh Tehsildar, PW4 Darshan Lal and PW5 Rajesh Kumar Plaintiff and I find that their evidence has not been rebutted by the defendant by any cogent evidence. xxxx xxxxx xxxx xxxx The other contention canvassed before me by the learned counsel for the appellant is that Adarsh Kumar, on whose identification the Tehsildar had allegedly attested the agreement Ex. P7, Ashok Kumar other attesting witness olf the agreement and the Typist, who had typed the agreement, were summoned by the plaintiff, but they have not been examined by him and their non-examination has adversely affects the case of the plaintiff as their examination would have thrown light over the true facts of the case. In support of his argument, learned c9ounsel for the appellant has referred to AIR 1979 Punjab and Haryana 154- Sunder Lal and another Vs. Mst. Dulari and others wherein it was held that adverse inference must be drawn against the party, who fails to examine the material witnesses. Having considered this submission of the learned counsel for the appellant, I do not find any substance in it. The plaintiff besides appearing as PW5 has also examined PW2 Shri Amarjit Singh Executive Magistrate, who had attested the agreement Ex.P7 and RSA No. 912 of 2005 10 PW4 Darshan Lal, one of the attesting witnesses of the agreement. Therefore, the plaintiff might not have thought the necessity to examine the other witnesses. Moreover, it is a settled proposition of law that it is the quality of the evidence and not the quantity, which weighs with the mind of the court. The other plea of the appellant that the agreement has not been got scribed from a regular deed writer when many regular deed writers were available at Muktsar, also does not weigh with the mind of the court. The agreement Ex.P7 has been typed by the Typist. The defendant has admitted her signatures on the agreement and the witnesses examined by the plaintiff have also proved the due execution of the agreement Ex.P7, as discussed in the preceding paras, thus, the agreement in question cannot be brushed aside merely on the ground that it has not been scribed by a regular deed writer. After going through the agreement Ex.P7, I find that the particulars of the parties and witnesses are in a sequence. The allegations leveled by the defendant against Shri Pritpal Sharma, Advocate have also not been proved on the record and the same does not in any way affect the case of the plaintiff.” The contention of the appellant that in this case relief of specific performance should have not been granted is also liable to be rejected. In the instant case, Baljinder Kaur has admitted her signatures over the agreement Ex.P7. Execution of the agreement in question as well as the demand of earnest money stands proved. It has also been proved in this case that the plaintiff has always been ready and willing to perform his part of the agreement but the defendant committed breach of agreement and in fact in the present case, the sale deed on the basis of agreement Ex. P7 in favour of the plaintiff-respondent stands executed on 10.1.2003 through the court in the execution proceedings. The said fact though noticed by the lower Appellate Court in its judgment was not pointed out by the counsel for the appellant. RSA No. 912 of 2005 11 Moreover, it is well settled that the relief of grant of decree for specific performance of agreement is discretionary. The courts below have exercised the said jurisdiction in favour of the plaintiff-respondent, no fault could be found by the learned counsel for the appellant in exercise of discretionary jurisdiction of the courts below. I find no reason to differ with the aforesaid jurisdiction as exercised by the courts below for grant of the relief of specific performance of the contract. There is no quarrel with the proposition of law as laid down by this Court in Mohinder Singh Versus Harjit Singh and others 2001(3) P.L.R. 706, Veluyudhan Sathyadas vs. Govindan Dakshyani 2003(1) RCR (Civil) 28 and Manohar Lal alias Manohar Singh Versus Maya AIR 2003 Supreme Court 2362 but the facts of the instant case are distinguishable. The argument of the counsel for the appellant that the lower Appellate Court was not justified in dismissing the application under Order 41 rule 27 is also without any merit. A perusal of the order dated 17.2.2005 dismissing her application for leading additional evidence as reproduced by the appellant shows that the evidence sought to be produced by the appellant by way of additional evidence was within her knowledge but she did nor produce the same earlier at the time when she was leading evidence in the trial court and no plausible explanation has been given for not producing this evidence earlier. The order of the lower Appellate Court rejecting the application for leading additional evidence is a well reasoned order. The relevant part of the order is reproduced as under:- “ I have given my thoughtful consideration to the rival contentions advanced by the learned counsel for the parties but I do not find any substance in the submissions made by the learned counsel for the appellant-applicant. The applicant wants to examine Shri Anil Kumar Gupta, Expert to prove the alleged forgery in the execution of the agreement. She also wants to examine Shri Amarjit Singh, Tehsildar and Adarsh Kumar to prove the alleged special power of attorney. The evidence sought to be RSA No. 912 of 2005 12 produced by the appellant by way of additional evidence was well within her knowledge, but she did not produce the same earlier at the time when she was leading evidence in the lower Court and no plausible explanation has been given for not producing this evidence earlier. The perusal of the trial Court file reveals that the plaintiff closed his evidence on 23.11.2000 and thereafter the appellant availed of eight opportunities for her evidence. The defendant-appellant examined three witnesses during this period and closed her evidence on 16.3.2001 and the case was finally decided by the lower court on