REGULAR SECOND APPEAL No.2964 OF 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2964 of 2009 (O&M) DATE OF DECISION: 11 th MARCH, 2011 Maskeen Singh & Others .... Appellants Versus Baljit Kaur & Others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. P. K. Gupta, Advocate for the appellants. * * * * L.N. MITTAL, J. (ORAL) Defendants No.1 and 2 having failed in both the courts below are in second appeal. Suit was filed by Avtar Singh plaintiff (since deceased and represented by respondents No.1 to 3 as his legal representatives) against appellants and preforma respondents No.4 to 8 and their mother Kartar Kaur (said to have since died) for possession of the suit land measuring 8 Kanals by specific performance of agreement to sell dated 11.08.1999. Plaintiff's case is that Bawa Singh predecessor of the defendants agreed to sell the suit land to the plaintiff for Rs.1,20,000/- and received Rs.1,00,000/- as earnest money and executed impugned agreement dated 11.08.1999. Sale deed was to be executed upto 31.01.2000. However, on 25.01.2000, defendants No.1 and 2 received further amount of Rs.10,000/- and by making endorsement on the back of agreement, extended the date of execution of the sale deed till 15.05.2000. The plaintiff always remained ready and willing to perform his REGULAR SECOND APPEAL No.2964 OF 2009 (O&M) -2- part of the contract but defendants committed breach thereof. They failed to do the needful even inspite of legal notice, necessitating the filing of the instant suit. Besides specific performance of agreement, the plaintiff also claimed ancillary relief of permanent injunction. Alternative relief of recovery of Rs.2,20,000/- was also claimed. Defendant No.3 was proceeded ex parte. Remaining defendants contested the suit and broadly denied the plaint allegations. It was alleged that agreement dated 11.08.1999 as well as writing dated 25.01.2000 are forged and fabricated. No earnest money was received by Bawa Singh predecessor of the defendants nor by defendants No.1 and 2. Various other pleas were also raised. Learned Civil Judge (Junior Division), Ajnala vide judgment and decree dated 11.12.2006 decreed the plaintiff's suit for possession of the suit land by specific performance of the agreement and also for permanent injunction. First appeal preferred by defendants No.1, 2 and 4 to 7 has been dismissed by learned Additional District Judge, Amritsar vide judgment and decree dated 07.01.2009. Feeling aggrieved, defendant Nos.1 and 2 have preferred the instant second appeal. Appellants have also moved CM No.3359-C of 2011 for taking additional grounds of appeal and CM No.3360-C of 2011 for additional evidence. I have heard learned counsel for the appellants and perused the case file. Insofar as CM No.3359-C of 2011 is concerned, without meaning to say anything on the merits of the additional grounds sought to be taken, the said application is allowed subject to all just exceptions and amended grounds REGULAR SECOND APPEAL No.2964 OF 2009 (O&M) -3- of appeal are taken on record, subject to all just exceptions. Insofar as CM No.3360-C of 2011 for additional evidence is concerned, by way of this application, the applicants want to examine finger prints expert to compare thumb impressions of Bawa Singh deceased on the impugned agreement with his thumb impressions on bank documents. Learned counsel for the appellants contended that proposed additional evidence is necessary for just and effective decision of the case and the same should be allowed. It was contended that negligence of the counsel in the lower courts should not be a ground to decline the proposed additional evidence. Reliance has been placed on judgment of this court in the case of Gurdial Singh and others versus Mam Chand and others, 2011(1) RCR (Civil) 690. I have carefully considered the aforesaid contention but find no merit therein. It is stipulated in Order 41 Rule 27 of the Code of Civil Procedure that appellate court may allow additional evidence in appeal if it requires the evidence to enable it to pronounce judgment or for any other substantial cause. Same thing has been repeated in the judgment of Gurdial Singh (supra). However, in the instant case, the trial court specifically observed in its judgment that defendants have failed to examine any finger print expert for comparison of thumb impressions of Bawa Singh on the impugned agreement with his thumb impressions on the bank documents. Inspite thereof, no attempt was made to do the needful in first appeal. The matter does not rest here. Even in the instant second appeal, application for additional evidence has been moved almost two years after the filing of the appeal, after seeking repeated adjournments for preliminary hearing of the appeal. There is no explanation why proposed additional evidence was not led in the trial court or in first appellate court, except bald allegation that the REGULAR SECOND APPEAL No.2964 OF 2009 (O&M) -4- counsel did not guide the defendants properly. On such bald, vague, general and specious averments, additional evidence cannot be admitted in second appeal. Court does not require the proposed additional evidence for decision of case because evidence on record is sufficient to dispose of the case. Accordingly the application for additional evidence is dismissed. On merits of appeal, learned counsel for the appellants contended that it is a case of great hardship to the defendants because suit land is the only property of the defendants inherited by them from Bawa Singh and, therefore, instead of specific performance of the agreement, alternative relief of recovery of double the earnest money with interest may be granted. Reliance in support of this contention has been placed on two judgments of Hon'ble the Supreme Court i.e. Nirmala Anand versus Advent Corporation Pvt. Ltd. & Others. 2002(2) Apex Court Journal 0262 and Kashi Ram versus Om Parkash Jawal, 1996(2) PLR 337. I have carefully considered the aforesaid contention but find myself completely unable to accept the same. The contention is completely beyond pleadings and is also not substantiated by any evidence on record and, therefore, the contention cannot be accepted. The contention has been raised just in the air without any foundation of pleadings or evidence. In fact, the contention has been raised by amending grounds of appeal and was not even raised in the original grounds of appeal. In the absence of any material on record, the contention has to be rejected. Insofar as judgments cited by the counsel for the appellants are concerned, in the case of Nirmala Anand (supra), specific performance of the agreement was decreed. In the case of Kashi Ram (supra), earnest money of Rs.2500/- had been paid. Hon'ble Supreme Court directed payment of Rs.10,00,000/- as compensation i.e. 400 times the earnest money. Obviously appellants are not ready to pay REGULAR SECOND APPEAL No.2964 OF 2009 (O&M) -5- 400 times the earnest money received by them in the instant case. On the other hand, judgment in the case of Kashi Ram (supra) was in the facts and circumstances of that case and does not lay down any principle of law for universal application to be followed as precedent. Plaintiff had led sufficient evidence to prove his case. Scribe of the agreement and one attesting witness of the agreement have been examined as witnesses. Both of them have supported the plaintiff's case and proved execution of the impugned agreement by Bawa Singh and receipt of Rs.1,00,000/- by him from the plaintiff. Plaintiff has also examined attesting witness of writing dated 25.01.2000 who has also supported the plaintiff's case. All this evidence of the plaintiff practically stands unrebutted. Defendants No.1 and 2/appellants stepped into the witness box but they were not party to the impugned agreement. Consequently, their statements do not carry any evidentiary value regarding execution of the impugned agreement. Both the courts below have properly analyzed the evidence and come to concurrent finding favour of the plaintiff. The said finding is supported by reasons recorded by the courts below and is not shown to be perverse or illegal in any manner. The said finding is also not based on misreading or mis-appreciation of the evidence. Consequently, it does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is completely meritless and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 11th March, 2011 'raj'