RSA No. 1344 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1344 of 2010 (O&M) Date of decision: September 28, 2010 Kurra Ram ...Appellant Versus Passa Ram ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. MK Singla, Advocate, for the appellant. Mr. PK Garg, Advocate, for the respondent. GURDEV SINGH, J. This second appeal has been preferred by the appellant/defendant-Kurra Ram against the judgment and decree dated 22.5.2009 passed by the Additional District Judge, Sangrur, vide which the appeal preferred by the plaintiff/respondent-Passa Ram against the judgment and decree dated 2.6.2008 passed by the Civil Judge (Jr. Divn.), Sunam, dismissing the suit of the plaintiff for specific performance of the agreement dated 1.9.2002, but decreeing his suit for alternative relief for recovery of ` 90,000/- as principal amount and interest thereon, was set aside and the suit of the plaintiff was decreed for specific performance. The facts, in brief, are that the plaintiff filed suit for specific performance and in the alternative for the recovery of earnest money, alongwith interest and also for permanent injunction restraining the RSA No. 1344 of 2010 2 defendant from alienating the plots in dispute, which he had agreed to sell in his favour, vide agreement dated 1.9.2002 for a consideration of ` 1 lakh and received ` 90,000/- as earnest money in the presence of the witnesses. The sale deed was to be executed, as per the terms and conditions of the agreement, upto 1.9.2003. However, the defendant failed to do so, inspite of service of legal notice dated 24.11.2003, though the plaintiff was always ready and willing to perform his part of the contract. The suit was resisted by the defendant. He pleaded in his written statement that he did not execute any such agreement in favour of the plaintiff nor received any earnest money. In fact, Jarnail Singh son of Jagroop Singh had entered into a contract for the removal of the dead bodies of the animals from 1.4.2002 to 31.3.2003 and in respect of that contract he spent ` 1.55 lakhs. The plaintiff used to work with him but failed to render the accounts and in order to pressurize him filed false suit. He has no cause of action to file the suit and the same is barred by limitation. On the pleadings of the parties, the following issues were framed:- “1. Whether plaintiff is entitled to specific performance of agreement dated 1.9.2002 regarding suit land, on payment of balance sale consideration ? OPP 2. Whether in the alternative plaintiff is entitled to recover Rs. 90,000/- alongwith interest at the rate of 1.5% per month and future interest at the same rate ? OPP 3. Whether plaintiff is entitled to permanent injunction as prayed for ? OPP 4. Whether suit is within time ? OPP RSA No. 1344 of 2010 3 5. Whether plaintiff has no locus standi and cause of action to file this suit ? OPD 6. Whether suit is not maintainable in the present form ? OPD 7. Whether plaintiff has not properly valued the suit for the purpose of court fee and jurisdiction ? OPD 8. Whether plaintiff has concealed material facts from court ? OPD 9. Relief.” The plaintiff examined himself as PW-1, Hardev Singh (PW-2), Satish Kumar (PW-3), Ramesh Kumar, Deed Writer (PW-4) and R.V. Vashishat, Handwriting and Fingerprints Expert (PW-5). On the other hand, the defendant examined himself as DW-1 and Sohan Lal (DW-2). After going through the evidence so produced on the record and hearing learned counsel for both the sides, the trial court decided issues No. 2 and 4 to 8 in favour of the plaintiff and issue No.3 against him. Regarding issue No.1, it was held that though the defendant executed the agreement to sell in favour of the plaintiff, yet the plaintiff was not entitled to decree for specific performance. In the first appeal preferred by the plaintiff, the decree for specific performance was passed in his favour. Mr. P.K. Garg, Advocate, appeared for the respondent, though notice was not issued and the appeal was at the stage of motion hearing. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the defendant that the following substantial questions of law arises in the present appeal:- “i. Whether the specific performance of the agreement RSA No. 1344 of 2010 4 could have been allowed when the defendant was not found to be the owner of the plots in dispute ? ii. Whether the finding recorded by the first appellate court that the plaintiff was always ready and willing to perform his part of the agreement can be sustained ?” In order to elaborate, it has been submitted by the learned counsel for the defendant that regarding the question of ownership, the lower courts relied upon the admission made by the defendant, which cannot be said to be conclusive piece of evidence. Admittedly, the plaintiff never appeared before the Sub-Registrar on the date fixed for execution of the sale deed and never got his presence marked. That goes a long way to prove that he was never ready and willing to perform his part of the contract. It cannot be said that above said questions are substantial questions of law which arise in the present appeal. It was never the case of the defendant that he was not owner of the plots in dispute. In so many words, he himself specifically pleaded in the written statement that he is the owner of the plots in dispute, though he tried to take up the plea that the agreement to sell was never executed by him. In order to substantiate his pleading that he was always ready and willing to perform his part of the contract, the plaintiff stated on oath as PW-1 that right from the date of execution of the agreement, he was always ready and willing to perform his part of the contract and it was the defendant, who did not perform his part of the contract. He also stated that he served a legal notice dated 24.11.2003 upon the defendant, which was duly received by him and inspite of the same, he failed to execute the sale deed. The plaintiff was never cross- examined on that aspect of the case. The trial court recorded a wrong RSA No. 1344 of 2010 5 finding against the plaintiff by observing that since the plaintiff did not appear before the Sub-Registrar for getting his presence marked, it is to be concluded that he was not ready and willing to perform his part of the contract. The finding recorded by the first appellate court on that aspect of the case, is based upon legally admissible evidence. When such is the case, it cannot be said that this second appeal is competent. The appeal is dismissed accordingly. September 28, 2010 (GURDEV SINGH ) prem JUDGE