R.S.A. No. 2389 of 2006 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2389 of 2006 (O&M) Date of Decision : 16.2.2009 Jaswinder Kaur .......... Appellant Versus Pitambar Singh Jolly ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Arun Palli, Sr. Advocate with Mr. Sunil Garg, Advocate for the appellant. Mr. Sachin Kapoor, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 17.4.2004 and 21.3.2006 passed by the learned Courts below vide which suit filed by the plaintiff appellant for specific performance of agreement to sell stands dismissed. The plaintiff-appellant brought a suit on the pleading that defendant had agreed to sell the suit property to plaintiff vide agreement dated 23.7.1998 for a sum of Rs. 1,75,000/- and received Rs. 67,000/- as earnest money. It was the case of the plaintiff-appellant that the sale deed was to be executed before 25.10.1998 after payment of remaining sale R.S.A. No. 2389 of 2006 -2- consideration. The plaintiff claimed that he was ready and willing to perform his part of conract but the defendant has failed to execute the sale deed. On notice having been issued the respondent filed a written statement wherein he denied having executed the agreement which was said to be forged and fabricated. It was pleaded by the defendant respondent that one Ravinder Singh son of Mehar Singh visited Ludhina along with one property dealer namely Baljinder Singh for the purchase of suit property on 17.7.1998. It is alleged that they entered into an agreement for sale with the defendant and got one receipt from the defendant after making the payment of Rs. 25,000/-. It was alleged by the defendant that he agreed that he will dispose of the property, one receipt was signed in favour of Jaspreet Kaur although she did not visit Ludhiana. Ravinder Singh and Baljinder Singh handed over one photostat copy of the receipt to the defendant and they retained the original. It was also the case of the defendant that they had promised that they will get the suit property restored from PUDA at their own source but they failed to do so. As already observed above, the agreement to sell was said to be forged and fabricated document. In replication, the pleading of the plaint were reiterated and that of written statement were denied. On the pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether the defendant agreed to sell booth in question R.S.A. No. 2389 of 2006 -3- to the plaintiff vide agreement dt. 23.7.1998 for Rs. 1,75,000/- and received an amount of Rs. 67,000/- as earnest money ? OPP 2. Whether the plaintiff was and is still ready and willing to perform her part of the contract ? OPP 3. Whether the plaintiff is entitled to decree for Rs. 1,34,000/- in the alternative as alleged ? OPP 4. Whether the alleged agreement is false and forged document? OPD 5. Relief” On appreciation of evidence the learned Courts below have recorded a concurrent finding of fact that the defendant had not agreed to sell the booth in question to the plaintiff vide agreement dated 23.7.1998 for a sale consideration of Rs. 1,75,000/-. It was also held that the amount of Rs. 67,000/- was not received as earnest money. The learned Courts below also held that the plaintiff has failed to appear in the witness box to make statement regarding her willingness to perform her part of contract. The Court further held that the appellant-plaintiff was not entitled to decree for Rs. 1,74,000/- in the alternative as it was held that for want of stepping into the witness box the plaintiff had failed to prove the agreement to sell and the payment of earnest money. Issue No.4 was also decided against the plaintiff-appellant for want of appearance in Court. Mr. Arun Palli, learned senior counsel appearing on behalf of the appellant contends that this appeal raises the following substantial R.S.A. No. 2389 of 2006 -4- questions of law for consideration by this Court :- 1. Whether the judgment and decree passed by the learned Courts below are perverse having erred in law in drawing adverse inference merely on account of non appearance of the appellant instead of there being ample oral and documentary evidence to prove the agreement to sell between the parties ? 2. Whether the learned Courts below could have decided issue No.4 against the appellant plaintiff in absence of no evidence, whatsoever, alleging fraud or misrepresentation ? In support of the substantial questions of law framed the learned senior counsel for the appellant contends that the learned Courts below committed an error in drawing adverse inference against the plaintiff- appellant merely because she did not appear in the witness box though her attorney who was said to be present at the time of execution of the agreement had appeared in Court and supported the due execution of the agreement. It is also the contention of the learned senior counsel for the appellant that the attesting witnesses were also produced to support the due execution of the agreement to sell and further in cross-examination the defendant-respondent admitted having signed the agreement, therefore, the due execution was proved. The learned counsel for the appellant in support of the contention that adverse inference could not be drawn for non- R.S.A. No. 2389 of 2006 -5- appearance of the parties if there is other evidence on record placed reliance on the judgment of the Hon'ble Delhi High Court in the case of Smt. Chander Kanta Singhal etc. Vs. M/s Kapadia Exports 1997(1) Civil Court Cases 264 (Delhi) wherein the Hon'ble Delhi High Court has been pleased to lay down as under :- 22. Learned counsel for the defendants contended that the plaintiffs having not come in the witness box in support of heir case, as adverse inference against them should be drawn. In our opinion the question of drawing an adverse inference against plaintiffs on account of their absence from the Court would arise only when there is no other evidence on the record on the point in issue. In the instant case, V.K. Mittal (PW1) testified that the quit notice (Ex.P.W.1/4) was sent to the defendant by registered post A.D. vide postal receipt (Ex. PW. 1/6) and the same was received by the defendant vide A.D. Cards (Ex. PW1/7 and Ex.PW1/8 ). There is no dispute about the correctness of address of the defendant. Learned counsel for the defendant contended that acknowledgment due cards (Ex. PW1/7 and Ex.PW1/8 ), which were returned do not bear signatures of Naresh Kapadia (DW1) and D.M.Kapadia (DW2). The fract, however, remains that the notice (Ex.P.W1/4) was sent by registered post at a correct address and this gives rise to the presumption with regard to service of notice under Section 114 of the Evidence Act as well as under Section 27 of the General Clauses Act. If somebody received the registered A.D. notice on behalf of the defendant firm, it cannot be held that the defendant has not been properly served. It is also significant that although the defendant's R.S.A. No. 2389 of 2006 -6- witnesses Naresh Kapadia (DW1) and D.M. Kapadia (DW2) have denied service of the notice (Ex.PW1/4) but a suggestion has been made in cross-examination of V.K. Mittal (PW1) to the effect that when the notice was given, the matter was being negotiated between the parties. V.K. Mittal (PW1) has denied the said suggestion. In view of the said suggestion no reliance can be placed on the bald denial of Naresh Kapadia (DW1) and D.M. Kapadia (DW2) that they did not receive the quit notice (Ex.PW1/4).” The learned senior counsel for the appellant further contends that the findings recorded by the learned Courts below being perverse deserves to be set aside by answering the substantial question of law in favour of the appellant-plaintiff. It is also the contention of the learned senior counsel for the appellant that in the present case once the agreement was duly proved by examining the attesting witnesses and also in view of the admission by the defendant-respondent in cross-examination that he has signed the agreement there was no occasion for the learned Courts below to have decided issues No. 1 to 3 against the plaintiff-appellant. It is also the contention of the learned senior counsel for the appellant that on issue No.4, the findings of the learned Courts below are perverse as the onus to prove the fraud and misrepresentation was on the defendant but he did not lead any evidence on this issue but still on the basis of finding on issues No.1 & 2 the said issue has been decided against the plaintiff appellant, which cannot be sustained. R.S.A. No. 2389 of 2006 -7- On consideration of the matter, I find no force in the contention raised by the learned counsel for the appellant. It is not in dispute that present case was not based on stipulations in the agreement but something more than that i.e. the payment of Rs. 25,000/- to the earlier intending vendee and also payment of money through the bank by the plaintiff. The knowledge qua this part of the pleadings could not be drawn from the document placed on record and being in personal knowledge of the plaintiff appellant, it was for her to have appeared in the witness box and face the cross-examination. The findings recorded by the learned Courts below cannot be said to be perverse as is contended by the learned senior counsel for the appellant. The judgment of the Hon'ble Delhi High Court also does not help appellant in view of the judgment of the Hon'ble Supreme Court in the case of Iswar Bhai C. Patel @ Bachu Bhai Patel Vs. Harihar Behera & Anr. 1999(2)Civil Court Cases 1(S.C.), wherein the Hon'ble Supreme Court has been pleased to lay down as under :- “16. Admittedly defendant No.1 had an account in the Central Bank of India Limited, Sambalpur Branch which his father, namely, respondent No.2 was authorised to operate. It is also an admitted fact that it was from this account that the amount was advanced to the appellant by respondent No.2. It has been given out in the statement of respondent No.2 that when the appellant had approached him for a loan of Rs. 7,000/- he had explicitly told him that he had no money to lend whereupon the appellant had himself suggested to advance the loan from the account of respondent No.1 R.S.A. No. 2389 of 2006 -8- and it was on his suggestion that the respondent No.2 issued the cheque to the appellant which the appellant, admittedly, encashed. This fact has not been controverted by the appellant who did not enter the witness box to make a statement on oath denying the statement of defendant (respondent) No.2 that it was at his instance that respondent No.2 had advanced the amount of Rs. 7,000/- to the appellant by issuing a cheque on the account of defendant (respondent ) No.1. Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act.” Though there is force in the contention raised by the learned senior counsel for the appellant qua challenge to the finding on issue No.4, but reversal of finding would not make any difference to the suit as the plaintiff has failed to prove the due execution of the agreement and willingness to perform her part of contract the suit for specific performance deserved to be dismissed and findings upheld. The question of law raised deserves to be answered against the appellant-plaintiff as the learned Courts was fully justified drawing adverse inference for non-appearance of plaintiff in the Court and failing to prove her case. No merit. Dismissed in limine. 16.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE