R.S.A No.4898 of 2010 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4898 of 2010 (O&M) Date of Decision: 22.12.2011 Manjit Kaur ...... Appellant Versus Puran Singh ...... Respondent CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. Satish Goel, Advocate for the appellant. Mr. Tribhuwan Singla, Advocate for the respondent-caveator. ------- RITU BAHRI. J. Challenge is to be judgment dated 14.05.2010 passed by Addl. District Judge, Barnala whereby the appeal against the judgment and decree dated 01.10.2009 passed by Addl. Civil Judge (Sr. Divn.), Baranala, has been dismissed. Brief facts of the case are that the respondent had filed a suit for possession by way of specific performance and permanent injunction on the basis of agreement to sell dated 13.09.2007 of the house, constructed in 12-1/2 marlas, situated in revenue estate of Handiaya, Tehsil Barnala. The agreement to sell was executed for a sale consideration of Rs.10,05,000/- and the appellant-defendant received Rs.8,86,000/- as an earnest money. On notice, the appellant-defendant contested the suit and R.S.A No.4898 of 2010 (O&M) - 2 - denied the execution the sell agreement dated 13.09.2007 and payment of earnest money. An agreement to sale deed did not bear the signature of the Stamp Vendor and Deed Writer. The plaintiff had intended to send his son abroad and engaged an agent through defendant. The said agent failed to send his son abroad also failed to return the money to the plaintiff. The intention of the plaintiff is to grab the only house of the appellant-defendant. On pleadings of the parties, the following issues were framed on 25.01.2007 by the learned trial Court: “1. Whether the defendant executed an agreement to sell dt. 13.9.2007 in favour of the plaintiff for consideration of Rs.10,05,000/-OPP 2. Whether the defendant received earnest amount of Rs.8,86,000/-from the plaintiff?OPP 3. Whether the plaintiff (is remained) has been ready and willing to perform his part of Contract as per agreement to sell dt. 13.9.2007?OPP 4. Whether plaintiff is entitled for specific performance of agreement to sell or in alternative suit for recovery?OPP 5. Whether the plaintiff has no locus standi to file suit?OPD 6. Whether the agreement to sell dt. 13.9.2007 forged fabricated or prepared with malafide intention and without consideration?OPD 7. Relief.” Learned trial Court after hearing both the parties, returned the findings on issues Nos 1 to 3, which are being inter-connected taken up together to avoid the repetition of discussion as fate of the R.S.A No.4898 of 2010 (O&M) - 3 - appreciation of common evidence. The suit of the plaintiff was decreed by the trial Court vide judgment dated 01.10.2009 on the condition that the plaintiff will pay balance sale consideration of Rs.1,19,000/- within 30 days. PW-2 Jaswinder Singh and PW-3 Satkar Singh, the attesting witnesses of the said agreement to sell dated 13.9.2007 had tendered their respective examinations-in-chief. They admitted that the son of the plaintiff intended to go abroad and showed ignorance as to from where the plaintiff had arranged such a huge amount of Rs.8,86,000/-. In his examination-in-chief, PW-3 revealed that the earnest money was handed over to defendant and it was counted by her son Surinder Singh. The plaintiff, appearing as PW-1 reiterated his version contained in the plaint. He also proved his affidavit dated 13.12.2007 as Ex.P-5, the date fixed for execution of sale deed, he appeared before the Sub Registrar, Barnala with balance sale consideration but defendant did not turn up. He denied that his son was capable of going abroad; that he approached any agent to send his son abroad. The defendant while appearing as DW-1 reiterated her version of the written statement. She could not prove any circumstance which support her version. The plaintiff has exercised an acute threat so as to agreement sale executed. In the written statement, the stand taken by the defendant was that plaintiff had approached her to send his son abroad but she had failed to send his son abroad. In her examination-in-chief she did not mention the name of any travel agent nor name of the country where son of the plaintiff intended to settle. The suit was file in the year 2009 after R.S.A No.4898 of 2010 (O&M) - 4 - agreement to sell dated 13.09.2007. The defendant did not challenge the agreement sell by way to file civil suit on any ground. The suit of the plaintiff was decreed. Issue Nos.1, 2 and 3 were decided in favour of the plaintiff. The suit was decreed for specific performance of the agreement Ex.P-1 of house measuring 12-1/2 marlas. Learned lower Appellate Court affirmed the findings given by the trial Court and dismiss the appeal on 14.05.2010. Learned counsel for the appellant vehemently argued that the description of the property in the agreement sell (Ex.P-1) is not clear and decree for specific performance cannot be passed. Property is not identifiable due to the wrong mentioning of the area of Khasra No.50/25/1 in the agreement. He has placed reliance of judgment of Allahabad High Court in 2010(1) Civil Court Cases 0382. The house in question is only residential house with the defendant. The suit should have been decreed for return of the earnest money for specific performance agreement to sell Ex.P-1. On the other hand, learned counsel for the Caveator has submitted that the defendant was unable to prove that the agreement to sell was executed by exercising undue pressure and coercion. She has taken stand in the written statement that the plaintiff wanted to send his son abroad and had given money for that purpose to the agent. However, in her examination-in-chief, while appearing as DW- 1 she even did not mention the name of the agent and nor the country where she wanted to send her son to settle. She did not challenge the said sale deed in any Civil Court on the said ground. I have heard the learned counsel for both the parties and R.S.A No.4898 of 2010 (O&M) - 5 - have through the case file and facts of the present case. Agreement to sell Ex.P-1 has been duly proved by the plaintiff by recording statement of attesting witnesses PW-2 and PW- 3. The earnest money was given in the presence of the defendant and it was counted by her own son Surinder Singh. Once the defendant has not been able to prove that the said agreement to sell was under undue pressure and coercion and that the plaintiff had paid this amount to send her son abroad; the conclusion of both the Courts below the agreement to sell is duly executed and plaintiff was also willing to execute of the contract does not require any interference. The plaintiff had appeared before the sub Registrar, Barnala with balance sale consideration on the date fixed of the execution of the sale deed. The findings of facts recorded by both the courts below do not require any interference at this stage. On other side counsel for the appellant in defence submitted that she will lose the only residential house and a decree of return of the earnest money be passed carries no weight. In Jarnail Singh and others Versus Sukhwinder Singh 2009(2) RCR(Civil) 604 of this Court has considered the plea in an agreement to sell a residential house and rejected the plea that it will not be equitable to grant specific performance as they were living in the house. The agreement to sell cannot be denied on the ground of hardship. The Hon'ble Supreme Court of India in case P.D'Souza Vs. Shondrilo Naidu, 2004(3) RCR (Civil) 668 has negatived the plea of hardship while decreeing the suit for specific performance in paragraph 12, the observation is as under: “ There is also no force in the contention of the learned R.S.A No.4898 of 2010 (O&M) - 6 - counsel for the appellants that the suit property is a residential house and no decree for specific perform can be passed. A perusal of the agreement Ex.P-3 shows that the appellants had agreed to sell the house in question. The execution of this agreement has been fully proved. Therefore, now, it does not lie in the mouth of the appellants to say that it will not be equitable to grant specific performance against them for a residential house in which they are living. Explanation 1 appended to Section 20 clearly stipulates that merely inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature would not constitute an unfair advantage within the meaning of Section 20(2) of the Specific Relief Act. The contention of the appellants to the effect that the Courts below should not have exercised its discretionary jurisdiction in view of the hardship which would be visited by the appellants is liable to be rejected. The appellants were the owner of the house. They accepted the part payment from the plaintiff. Moreover, this plea of hardship is also not proved from the evidence on record of the case. It is nt a case where the appellants did not foresee the hardship.” The findings of facts both records that there was no ambiguity in description of the property to sell agreement and that it was not executed by the plaintiff by exercising any pressure does not require any interference in R.S.A. The findings recorded by both the Courts below are not passed either mis-reading of evidence or non R.S.A No.4898 of 2010 (O&M) - 7 - consideration material evidence. No substantial question of law arises for adjudication for consideration by this Court. The regular second appeal is dismissed. (RITU BAHRI) 22.12.2011 JUDGE sarita