R.S.A.No.3877 of 2004 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A.No.3877 of 2004 (O&M)
Date of Decision : 19.8.2009
Gurdev Singh ...Appellant
Versus
Uttamjit Singh ...Respondent
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
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. Rahul Sharma, Advocate,
for the appellant.
Mr. M.S.Khaira, Sr. Advocate, with
M/s Dharminder Singh and R.P.S.Ahluwalia, Advocates,
for the respondent.
HEMANT GUPTA, J. (ORAL)
The defendant is in second appeal aggrieved against the
judgment and decree passed by the Courts below, whereby suit for
specific performance of an agreement to sell dated 13.8.1999 was
decreed.
The plaintiff has sought specific performance of the aforesaid
agreement in respect of land measuring 24 Kanals 3 Marlas for a total
sale consideration of Rs.3,62,250/-. Rs.2,70,000/- was paid as earnest
money and the balance amount was to be paid on or before 31.12.2000,
when the sale deed was to be executed. The plaintiff served a notice on
11.12.2000 calling upon the defendant to execute the sale deed either on
29.12.2000 or on 1.1.2001 as 30.12.2000 and 31.12.2000 were holidays.
R.S.A.No.3877 of 2004 (O&M) 2
But still, the defendant did not execute the sale deed though the plaintiff
remained present before the Sub Registrar on 29.12.2000 and on
1.1.2001.
In written statement, the stand of the defendant was that the
agreement to sell is result of fraud. Defendant denied receipt of any
earnest money. It was alleged that the plaintiff is a relative of one
Jaswinder Singh Sethi. Son of the defendant is employed as driver for
driving the truck with Mr. Sethi. Mr. Sethi had purchased the truck by
taking loan from the bank. He could not repay the loan and the bank
seized the truck. A suit for recovery is pending in the Civil Court at
Chandigarh. It was denied that any agreement was executed and no
money was ever given to the defendant. A simple pronote was scribed in
the Court for the first time. The alleged agreement was written in lieu of
that note to create the evidence for the money.
To prove the execution of the agreement and payment of
earnest money, the plaintiff appeared as PW-1 and examined PW-2
Tarlochan Singh, one of the attesting witness and PW-3 Sham Bihari Lal,
the scribe of the agreement. On the other hand, the defendant appeared as
DW-1 and examined his son Gian Singh as DW-2. On the basis of the
testimony of the witnesses, both the Courts have recorded a concurrent
finding of fact that the defendant has executed the agreement to sell dated
13.8.1999 Ex.P-1 and has received earnest money of Rs.2,70,000/-. It
was also found that the plaintiff was ready and willing to perform his part
of the contract and consequently granted decree for specific performance
of the agreement to sell.
In the second appeal, the defendant-appellant has filed an
R.S.A.No.3877 of 2004 (O&M) 3
application for permission to lead additional evidence, so as to produce
copy of the judgment and decree dated 10.3.1990 in a suit for specific
performance filed by the plaintiff Uttamjit Singh against Gian Singh, son
of the defendant, on the basis of agreement to sell dated 17.3.2000 in
respect of land measuring 4 Kanals 19 Marlas.
The said suit for specific performance was filed on 16.9.2002
i.e. much before the decision of the suit by the learned trial Court on
25.9.2003. The appellant has not taken any step to move any application
before the learned trial Court in respect of suit filed by the plaintiff
against his son. The decree passed against the son of the defendant on
the basis of separate agreement to sell is not relevant to determine the
controversy in the present suit. Still further, the application has been filed
after gross delay, though the appellant could move such application
during the course of trial. Therefore, such application in second appeal is
without any merit and the same is dismissed.
On merits, learned counsel for the appellant has raised an
argument that PW-2 Tarlochan Singh, the attesting witness, is a chance
witness, who happen to be at the time of execution of the agreement to
sell, though the sum of Rs.2,70,000/- was purportedly paid at the time of
the execution of the agreement. He is a relation of the plaintiff as well.
Therefore, the finding that agreement to sell stands executed is vitiated in
law. It is also argued that the plaintiff has not pleaded that he was ready
and willing to perform his part of the contract. In the absence of such
pleading, the decree for specific performance suffers from patent error in
law and, thus, not sustainable.
The execution of the agreement is proved by the statement of
R.S.A.No.3877 of 2004 (O&M) 4
PW-3 Sham Bihari Lal, the scribe of the agreement and that of plaintiff
and attesting witness. It has been found that all the witnesses of the
plaintiff were consistent so far as the execution of the agreement to sell is
concerned. There are no discrepancies in their version. The stand of the
defendant was that the agreement to sell was not executed and is result of
fraud, but it was found that the defendant admits his signatures and of his
son on the agreement to sell Ex.P-1. It is not explained that how the
defendant and his son will sign a document unless it is intended to be so.
The findings recorded by the Courts below in respect of due
execution of agreement to sell are sought to be disputed by reappreciation
of evidence. Mere fact that witness is a relation of the plaintiff is not a
ground on the basis of which his testimony can be disbelieved. The
factum of relation will only require higher degree of scrutiny of his
statement. The Courts below have examined the statement of the witness
and found that there is no discrepancy and he is a truthful witness.
Therefore, the findings recorded that agreement to sell Ex.P-1 is proved
to be executed cannot be said to be suffering from patent illegality or
irregularity.
The stand of the defendant was that the agreement to sell is
result of fraud. The story propounded by the defendant has not been
substantiated in any manner.
The argument that the plaintiff has not pleaded that he is ready
and willing to perform his part of the contract is not tenable. In
Padamawati and others Vs. Kulwant Rai and others 2008(2) P.L.R. 424,
it was held to the following effect :
“31. In reply to such paras, the case of the defendants is of a
R.S.A.No.3877 of 2004 (O&M) 5simple denial. The plaintiffs vide Exhibit P.3 dated 6.12.1979
communicated that the plaintiffs are always ready and willing
to perform their part of the contract. The subsequent conduct
of the plaintiffs and defendant No.1 in contesting the suit filed
by Bal Kishan also shows that the plaintiff and defendant No.1
were ad-idem in respect of sale and purchase of the property
inter-se. The plaintiff Kulwant Rai, while appearing as PW-2
has deposed that he was ready and willing to get the sale deed
registered in pursuance of the agreement Exhibit P.2 and is
even now ready to get the sale deed registered. It is beyond
dispute that it is for the plaintiff to plead and prove that he
was/is always ready and willing to perform his/her part of the
contract. Such facts are required to be pleaded and proved in
terms of Section 16 of the Specific Relief Act, 1963. the
plaintiffs have pleaded in respect of his readiness and
willingness to seek performance of the agreement. It is also
well settled that such ready and willingness is required to be
inferred from the entire reading of the plaint and the evidence
led. It is not the mere use of the words, which is relevant but
the intention of the plaintiff has to be examined keeping in
view the averments made in the plaint. (emphasis supplied)
32. In Udhav Singh Vs. Madhav Rao Scindia, AIR 1976
Supreme Court 744, the Hon’ble Supreme Court has held that a
pleading has to be read as a whole to ascertain its true import.
It is not permissible to cull out a sentence and passage and to
read it out of the context, in isolation. Although it is the
substance and not merely the form that has to be looked into.
The intention of the party concerned has to be gathered,
primarily, from the tenor and term of his pleading taken as a
whole.”
35. In Motilal Jain Vs. Ramdasi Devi 2000(3) RCR (Civil) 545
: (2000) 6 SCC 420, the Supreme Court has the occasion to
consider the Ouseph Varghese’s case (supra) and Abdul Khader
Rowther’s case (supra). The Hon’ble Supreme Court has also
R.S.A.No.3877 of 2004 (O&M) 6referred to Ramesh Chandra Chandiok and another Vs.
Chuni Lal Sabharwal (dead) by his legal representatives and
others, AIR 1971 SC 1238 and Syed Dastagir’s case (supra). It
was held that an averment of readiness and willingness in the
plaint is not a mathematical formula which should only be in
specific words. If the averments in the plaint as a whole do
clearly indicate the readiness and willingness of the plaintiff to
fulfil his part of the obligations under the contract which is the
subject matter of the suit, the fact that they are differently
worded will not militate against the readiness and willingness
of the plaintiff in a suit for specific performance of contract for
sale. The aforesaid judgments were quoted with approval in
Sugani (Mst.) V. Rameshwar Das and another, 2006(4) RCR
(Civil) 319 : (2006)11 SCC 587.”
If the plaint is read as a whole, the intention to prove the
readiness and willingness has been clearly pleaded. The relevant
paragraph reads as under :
“2. That defendant entered into an agreement dated 13.8.1999
to sell the suit property fully detailed in the head note of the
plaint to the plaintiff for a valuable consideration of
Rs.3,62,250/- (at the rate of Rs.1,20,000/-). Earnesh money
amounting to Rs.2,70,000/- have been paid. The sale deed was
to be executed on or before 31.12.2000. The plaintiff on
coming to know that 30.12.2000 and 31.12.2000 are holidays
and sale deed cannot be executed, got issued notice dated
11.12.2000 through his Advocate Shri Subhash Chander Handa
calling upon the defendant to get the sale deed executed on or
before 29.12.2000 or even on 1.1.2001. This notice was duly
received by him but the defendant has not come present to
execute the sale deed. The plaintiff got his presence marked
from the office of Sub Registrar, Ambala on 29.12.2000 and as
well as on 1.1.2001 by way of getting attested affidavits from
the said authority while acting as Executive Magistrate. The
R.S.A.No.3877 of 2004 (O&M) 7plaintiff thereafter again got issued notice dated 17.1.2001
calling upon the defendant to get the sale deed executed within
a period of 10 days. Despite all this the defendant has not come
to get sale deed executed showing that his intention is not to
perform his part of the contract.
3. That the plaintiff has performed his part of the contract by
paying the earnest money of Rs.2,70,000/- and thereafter and
had kept intact the balance sale consideration with him besides
expenses etc. The defendant had never been ready and willing
to perform his part of the contract as is evident from the fact of
giving no response to the repeated requires and notices of the
plaintiff.”
If the averments made in the plaint are read, it is apparent that
necessary pleadings have been made.
In view of the above, I do not find any reason to interfere with
the findings recorded, in the present appeal. Hence, the present appeal is
dismissed as no substantial question of law arises for consideration.
19.8.2009 (HEMANT GUPTA) Vimal JUDGE