R.S.A. No.470 of 2006 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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R.S.A. No.470 of 2006
Date of Decision:29.09.2008
Gurcharan Singh
.....Appellant
Vs.
Swaran Singh
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. Malkeet Singh, Advocate for the appellant.
Mr. Madan Lal Saini, Advocate for the respondent.
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HARBANS LAL, J.
The facts which led to the filing of the suit are that Swaran
Singh- plaintiff is the owner in possession of the suit property. On
19.8.1998, the defendant- Gurcharan Singh aggreed to sell the same for
Rs.1,20,000/- in favour of the former, who paid Rs.1 lac to the latter as
earnest money on the aforesaid date. The defendant executed an agreement
to sell in favour of the plaintiff. The sale deed was to be executed on or
before 21.12.1998. The plaintiff remained ready and willing to get the sale
deed executed in his favour though the defendant was not ready to perform
his part of the contract. On 21.12.1998, the plaintiff remained present
before the Office of Sub-Registrar, Phillaur with sufficient amount to get
the sale deed executed, but the defendant did not turn up. On these
allegations, the suit has been filed.
In his written statement, the defendant has denied the receipt of
Rs.1 lac on 19.8.1998 as well as the execution of the agreement. As
alleged, it was a loan agreement and that the defendant has got only one
residential house, i.e., property in suit. Lastly, it has been prayed that the
R.S.A. No.470 of 2006 -2-
suit may be dismissed.
The following issues by the learned trial Court were framed:-
1. Whether plaintiff is entitled for specific performance of
the agreement? OPP
2. Whether defendant executed agreement to sell dated
19.8.1998 in favour of the plaintiff? OPP
3. Whether plaintiff was and is always ready to perform the
part of the contract? OPP
4. Whether suit is not maintainable? OPD
5. Whether plaintiff has no locus standi? OPD
6. Whether the site plan is incorrect? OPD
7. Relief.
After hearing learned counsel for the parties and examining the
evidence on record, the Court of the learned Civil Judge (Junior Division),
Phillaur decreed the suit for specific performance of the agreement to sell
dated 19.8.1998 vide his judgment and decree dated 5.5.2003. Feeling
aggrieved therewith, Gurcharan Singh went up in appeal, which has also
been dismissed by the learned District Judge, Jalandahr vide his judgment
and decree dated 5.4.2005. Feeling aggrieved therewith, Gurcharan Singh
has preferred this appeal.
I have heard learned counsel for the parties, besides perusing
the findings returned by both the Courts below with due care and caution.
Mr. Malkeet Singh, Advocate appearing on behalf of the
defendant- appellant strenuously contended that both the Courts below have
gravely erred in holding that the agreement to sell Ex.P.1 has been proved
apart from the factum of payment of the alleged earnest money. As a matter
R.S.A. No.470 of 2006 -3-
of fact, no due opportunity was afforded to the defendant to adduce his
evidence and that being so, injustice has been done to him.
To tide over these submissions, Mr. Madan Lal Saini, Advocate
representing the respondent- plaintiff argued that sufficient opportunities
were given to the defendant to lead his evidence but he did not take care at
all and thus now he cannot be permitted to take the advantage of his own
wrong.
I have well considered the rival contentions. As is borne out
from the judgments recorded by both the Courts below, due opportunity was
given to the defendant to adduce his evidence but he did not take the steps
to lead any evidence. As emanates from the record, even he himself did not
have the courage to step into the witness box. On delving into the findings
returned by both the Courts below with due care and caution, it transpires
that the same do not suffer from any illegality or infirmity. More to the
point, no substantial question of law arises for determination by this Court.
Sequelly, this appeal is dismissed.
September 29, 2008 ( HARBANS LAL ) renu JUDGE