-1- Regular Second Appeal No. 3073 of 2009 (O&M). IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: March 08, 2011. Regular Second Appeal No. 3073 of 2009 (O&M). Kamaljit Kaur ... Appellant VERSUS Rishi Kaushik and others ...Respondents CORAM : HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers 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 ? Present: Mr.Sham Lal Bhalla, Advocate, for the appellant. Mr. Amarjit Markan, Advocate, for respondent No.1. Mr. H.S. Saggu, Advocate, for respondent No.2. -.- MOHINDER PAL, J. Defendant-appellant Kamaljit Kaur is in second appeal aggrieved against the judgments and decrees passed by both the Courts below, whereby the suit filed by plaintiff-respondent Rishi Kaushik against the defendant-appellant and Satinderpal -2- Regular Second Appeal No. 3073 of 2009 (O&M). Singe, defendant-respondent No.2 for possession by way of specific performance of agreement of sale dated 5.10.1999 in respect of the house in dispute was partly decreed, i.e an ex parte decree was passed in favour of the plaintiff-respondent in part performance of the agreement in question and the suit was dismissed qua defendant-respondent No.2. An option was given to the plaintiff-respondent by the trial Court either to get the agreement of sale executed by payment of the balance sale consideration i.e Rs.1,40,000/-, the total sale consideration being Rs.2,50,000/- to the defendant-appellant or to claim earnest money of Rs.1,10,000/-, paid by the plaintiff-respondent to the defendant- appellant at the time of execution of the agreement in question dated 5.10.1999 along with interest at the rate of 12 per cent per annum. The plaintiff-respondent had filed an application before the lower appellate Court seeking permission to deposit the balance sale consideration, as per judgment and decree passed by the trial Court, which was allowed by the lower appellate Court. By way of the instant suit, the plaintiff-respondent had also challenged the sale deed No.3698 dated 24.3.2000 executed by defendant-appellant in favour of defendant-respondent No.2 Satinderpal Singh in respect of the shop occupied by defendant-respondent No.2, which was part of the house in dispute. The trial Court had framed issue No.4 in this regard i.e whether sale deed No.3698 dated 24.3.2000 is illegal, null and void ? OPD.” This issue was decided by the trial Court by holding -3- Regular Second Appeal No. 3073 of 2009 (O&M). as under:- “ This document, is clear proof of the fact that even defendant No.1 vendee has not brought, to the notice of defendant No.2 about the execution of the agreement to sell in respect of the house in favour of the plaintiff. So, all the precaution had been taken by defendant before getting the sale deed executed. So this Court holds that defendant No.2 is bona fide purchaser for valuable consideration. The sale deed is genuine and confer the rights in the shop occupied by defendant No.2 which is part of the house in dispute and the defendantNo.2 has become owner of the shop purchased vide this sale deed without ownership rights on the roof. There is no ground to set aside the sale deed. Hence, this issue is decided against the plaintiff and in favour of the defendants.” The said shop forming part of the house in dispute was in possession of defendant-respondent No.2 Satinderpal Singh since 21.2.1990 as a tenant of plaintiff-respondent No.1 and rent note Exhibit D.2 proved continuous possession of defendant- -4- Regular Second Appeal No. 3073 of 2009 (O&M). respondent No.2 over this shop. The plaintiff-respondent did not challenge the judgment and decree passed by the trial Court qua the said shop which was sold by defendant-appellant to defendant- respondent No.2 for Rs.40,000/- vide sale deed dated 24.3.2000 i.e after the execution of the agreement to sell dated 5.10.1999 in respect of the house in dispute by the defendant-appellant in favour of the plaintiff-respondent No.1. I have heard Mr.Sham Lal Bhalla, Advocate, appearing for the appellant, Mr. Amarjit Markan, Advocate, appearing for respondent No.1 and Mr. H.S. Saggu, Advocate, appearing for respondent No.2 and have gone through the records of the case. Both the Courts below, after appreciating the evidence led by both the parties, have came to the conclusion that the plaintiff-respondent has been successful in proving that the defendant-appellant had executed agreement to sell in favour of the plaintiff-respondent No.1 in respect of the house in dispute on 5.10.1999, the date of which was extended by other writings (agreements) dated 26.9.2000 and 29.12.2000. The defendant-appellant could not produce any evidence on record to show that the said agreement to sell was forged or a fabricated document or it was the result of fraud or misrepresentation. The plaintiff-respondent No.1 proved on record that he had always been ready and willing to perform his part of the agreement. In fact, filing of the suit by the plaintiff-respondent No.1 itself showed that he was ready and willing to perform his part of the -5- Regular Second Appeal No. 3073 of 2009 (O&M). agreement. The findings recorded by both the Courts below are the findings of fact. It could not be pointed out by the learned counsel for the defendant-appellant that such findings are based on misreading of evidence or that material evidence has not been taken into consideration. In this case, during the course of proceedings, when defendant-appellant failed to produce her evidence despite availing numerous opportunities and she herself failed to appear in Court, she (defendant-appellant) was proceeded against ex parte by the trial Court. Learned counsel for the defendant-appellant has argued that the trial Court did not provide opportunity to the defendant-appellant to lead her evidence in defence and, therefore, the judgments and decrees passed by both the Courts below deserve to be set aside and matter needs to be remanded back to the trial Court with a direction to grant sufficient opportunity to the defendant-appellant to produce her entire evidence. In this regard, reliance was placed by the learned counsel for the defendant-appellant on the authority reported as Murari Lal Vs. Ashok Aggarwal and others, 2006 (4) ICC 654 wherein a learned Single Judge of this Court had remanded the matter to the trial Court for providing one opportunity to the plaintiff-appellant therein to produce his entire evidence as the trial Court had closed the evidence of the plaintiff-appellant therein under Order 17 Rule 3 of the Code of Civil Procedure when he had failed to produce any evidence and the lower appellate -6- Regular Second Appeal No. 3073 of 2009 (O&M). Court had affirmed the findings of the trial Court. After giving my careful thought to the argument raised by learned counsel for the defendant-appellant, I do not find any merit in the same. In Murari Lal 's case (supra), the plaintiff- appellant therein had been continuously associating himself with the proceedings before the trial Court, but after availing a number of opportunities for leading his evidence, had failed to lead any evidence and, in these circumstances, the matter was remanded to the trial Court by this Court for providing one opportunity to the plaintiff-appellant therein to complete his evidence. However, such is not the case here. Herein, as noticed above, during the course of proceedings before the trial Court, the defendant-appellant absented herself from Court after availing numerous opportunities to produce her evidence and, therefore, she (defendant-appellant) was proceeded against ex parte by the trial Court. Therefore, it cannot be said that the defendant-appellant was not given any opportunity to lead her evidence. In fact, she left attending the trial Court in the midst of the proceedings. The instant suit was instituted by the plaintiff-respondent No.1 on 28.8.2002. Out of the pleadings of the parties, issues were framed by the trial Court on 18.10.2002. Thereafter, the case remained pending for evidence of the plaintiff-respondent No.1 till 4.6.2005 when the counsel for the plaintiff-respondent No.1 before the trial Court had voluntarily closed his evidence. The case was then fixed for evidence of the defendant-appellant for 28.7.2005, 19.8.2005, -7- Regular Second Appeal No. 3073 of 2009 (O&M). 29.9.2005, 25.10.2005, 13.12.2005, 31.1.2006, 10.2.2006 and 20.4.2006. It was on 20.4.2006 that defendant-appellant was proceeded ex parte when none put in appearance on her behalf. During this period, defendant-respondent No.2 led his entire evidence. However, defendant-appellant had failed to produce her evidence or to herself appear in the witness box as her own witness despite availing eight effective opportunities, mentioned above, in this regard. Besides, after defendant-respondent No.2 had closed his evidence, the case remained pending for rebuttal evidence of plaintiff-respondent No.2 till 29.9.2006. Still, no application was made by the defendant-appellant before the trial Court for setting aside the ex parte order against her. Under the circumstances, I do not find any patent illegality or irregularity in the findings recorded by both the Courts below, which may give rise to any substantial question of law in the present appeal. Resultantly, this appeal is hereby dismissed being without any merit. ( MOHINDER PAL ) March 08, 2011. JUDGE ak