RSA No. 4063 of 2007(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 4063 of 2007 (O&M)
Date of Decision: October 20 , 2009
Gurdev Singh ...... Appellant
Versus
Amrik Singh ...... Respondent
Coram: Hon'ble Mr. Justice Ajay Tewari
Present: Mr.Gorakh Nath, Advocate
for the appellant.
Mr.Amit Jain , Advocate
for the respondent.
****
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?
Ajay Tewari, J.
This appeal has been filed against the judgment of the learned
lower Appellate Court reversing that of the trial Court and thereby
decreeing the suit of the respondent for specific performance of an
agreement to sell dated 22.9.95. The learned lower Appellate Court held
that the respondent-plaintiff had succeeded in proving the agreement to sell
while the appellant-defendant had not even appeared in the witness box to
testify about his plea regarding the fraud which allegedly was practiced on
him (as per the appellant, at the time when he admittedly executed the
General Power of Attorney in favour of the respondent, he was made to sign
certain blank papers which were subsequently used to fabricate the
RSA No. 4063 of 2007(O&M) 2
agreement to sell and a Will).
The following questions have been proposed:-
1. Whether the appreciation of evidence and of law applicable
to such cases by the learned Additional District Judge,
Ambala was simply perverse?
2. Whether the execution of the alleged agreement of sale
Ex.P1 and the alleged Will dated 22.9.1995 and the
subsequent execution of the General Power of Attorney by
the defendant on 18.10.1995 do not ipso established that the
entire case set up by the plaintiff was false and fraudulent?
3. That the alleged agreement of sale is dated 22.9.1995 and the
alleged General Power of Attorney is dated 18.10.1995,how
is it that in the agreement of sale dated 22.9.1995 it stands
mentioned that the General Power of Attorney shall not be
cancelled when the General Power of Attorney had come
into existence much later on 18.10.1995?
4. Whether this Hon’ble Court can interfere and upset the
findings of fact of the first Appellate Court if the evidence is
misconstrued and mis-appreciated by the first Appellate
Court and the well reasoned and unassailable judgment of
the learned trial court was said to be set aside by the first
appellate court without laying a firm basis for the same?
5. Whether the findings of the learned Additional District
Judge, Ambala suffer from perversity because he did not
appreciate that the alleged agreement of sale was 22.9.1995
and he did not appreciate that where was the necessity to
execute the Will by the defendant on the same day and as to
why the alleged General Power of Attorney was executed by
the defendant in favour of the plaintiff on 18.10.1995 and as
to how under what circumstances it stood mentioned in the
agreement of sale that the General Power of Attorney would
not b cancelled when on 22.9.1995 the General Power of
Attorney dated 18.10.1995 was not even in existence?
6. Whether the execution of the alleged agreement of sale by
RSA No. 4063 of 2007(O&M) 3
the defendant can be said to have been proved merely
because the signatures of the defendant allegedly existing on
the same and the plaintiff had failed to establish that the
defendant had in fact executed this alleged agreement of sale
in favour of the plaintiff?
It would be seen that all the questions are pure questions of
facts.
Learned counsel for the respondents has drawn my attention to
issue No. 5-A and the findings thereon by the learned trial court. Issue
No.5-A is to the following effect:-
“5-A Whether the plaintiff has obtained the signatures
of defendant on blank papers at the time of execution of
GPA and misused those papers for preparing the
agreement of sale?”
Learned counsel has pointed out that this issue was not pressed by the appellant-
defendant whereas in fact, the whole case of the appellant-defendant hinges around
the fact whether the respondent had obtained his signatures on blank papers at the
time when the General Power of Attorney had been executed.
In the circumstances I am constrained to hold that learned counsel for
the appellant has not been able to establish that the findings recorded by the
learned Lower Appellate Court on the above mentioned questions are either based
on no evidence or on such misreading of evidence which renders them so perverse
as to be liable for interference under Section 100 C.P.C.
Consequently this appeal as well as the application for stay are
dismissed. No costs.
(AJAY TEWARI)
JUDGE
October 20 , 2009
sunita