IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No.2185 of 2006
Date of decision: 15th October, 2008
Jai Ram
... Plaintiff - Appellant
Versus
Jeeta
... Defendant - Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. L.N. Verma, Advocate for the Plaintiff - Appellant.
KANWALJIT SINGH AHLUWALIA, J.
Appellant – Plaintiff, having remained unsuccessful in two
courts below has assailed the judgment of the trial Court and appellate
Court below by filing present regular second appeal.
Briefly stated, appellant-plaintiff had instituted a suit for
recovery of Rs.12.00 lacs by way of damages and penalty of breach of
contract, pleading that the defendant-respondent had executed an
agreement to sell on 16.07.1991 for sale of half share of the total land
measuring 57 kanals 13 marlas corresponding to 28 kanals 11 marlas for a
consideration of Rs.4,99,000/- per acre. It was averred in the plaint that
Rs.6.00 lacs were paid to the defendant-respondent as an earnest money
and the sale deed was to be executed and registered on or before 15th
October, 1991. It was further pleaded that defendant-respondent had been
evading execution of the sale deed despite the best efforts on the part of
the appellant-plaintiff. It is further stated therein that the defendant-
respondent, even had not obtained required income tax clearance
Regular Second Appeal No.2185 of 2006 2
certificate from the authorities, which was a mandatory pre-requisite for
execution of the sale deed. It was further stated that appellant-plaintiff on
the expiry of the period calling for the defendant-respondent to pay double
the amount as accrued, i.e. the amount of Rs.12.00 lacs, but defendant-
respondent failed to do so, which instituted issuing a legal notice dated 28th
October, 1993 upon the defendant-respondent. It was stated that the
defendant-respondent had even refused to acknowledge the agreement to
sell and appellant-plaintiff has already been ready and willing to execute
his part of the contract by fulfilling the obligations, by which appellant-
plaintiff was bound by contract. Notice of show cause was issued to the
defendant-respondent. He filed a written statement and took a preliminary
objection that no cause of action has arisen to file the suit and the suit is
not maintainable in the present form and the appellant-plaintiff, by his own
acts ought to have been estopped from filing suit and had not approached
the Court with clean hands. There is non-performance of the contract on
the part of the appellant-plaintiff, so it was time barred and by filing the suit,
appellant-plaintiff has resorted to a fraud and misrepresentation.
On merits, it was submitted that agreement to sell was
executed on 14.02.1991 instead of 16.07.1991 in respect of half share of
land measuring 57 kanals 13 marlas for a consideration of Rs.4,99,000/-
and the sale deed was to be executed on 15th July, 1991. It was further
stated that the appellant-plaintiff had paid only Rs.3.00 lacs to the
defendant-respondent. Since on 15th July, 1991, appellant-plaintiff failed to
arrange remaining amount of sale consideration and a request was made
to execute a further agreement to sell in lieu of the old one and for that,
signatures of the defendant-respondent were obtained. It is further stated
that the new agreement to sell was not read over to the defendant-
respondent and no witness was present at the time of execution of second
agreement to sell. Defendant-respondent was informed that execution of
Regular Second Appeal No.2185 of 2006 3
sale deed has been extended upto 15.10.1991. It was further submitted
that on execution of second agreement to sell, no amount whatsoever, had
been given to the defendant-respondent by the appellant-plaintiff. On 15th
October, 1991, defendant-respondent had reached the office of Sub-
Registrar, Hansi to perform his part of contract by executing and registering
the sale deed in favour of the appellant-plaintiff. In the office of Sub-
Registrar, Hansi, appellant-plaintiff met with the defendant-respondent and
stated that he has been unable to arrange the remaining amount of sale
consideration. It is stated that appellant-plaintiff was not possessed of
amount of sale consideration and expenses for the registration of sale
deed. However, with a malafide intention, appellant-plaintiff has got himself
marked before the Sub-Registrar, Hansi.
It is stated that on the next date, i.e. 16th October, 1991,
defendant-respondent came to tehsil complex and in lieu of old agreement
to sell, fresh agreement to sell was executed in favour of appellant-plaintiff
on the request of appellant-plaintiff and the same was got scribed by the
deed writer. In the agreement to sell executed on 16.10.1991, the date for
registration and execution of sale deed was extended upto 16th December,
1993. It was stated that the previous agreement to sell was for land
measuring 28 kanals 11 marlas but the last agreement to sell was for 28
kanals. Since, both the parties had set out different versions, appellant-
plaintiff reiterated his version by filing the replication. From the pleadings of
the parties, following issues were drawn by the trial Court:
1. Whether the plaintiff is entitled to recover Rs.12,00,000/- from the
defendant ? … OPP
2. Whether the plaintiff has no locus-standi to file and maintain the
present suit ? … OPD
3. Whether the suit is not maintainable in the present form ? … OPD
Regular Second Appeal No.2185 of 2006 4
4. Whether the plaintiff is estopped from filing the suit by his own act
and conduct ? … OPD
5. Whether the suit is time barred ? … OPD
6. Whether the suit has not properly been valued for the purposes of
Court fee ? .. OPD
7. Relief.
Thereafter, evidence was led. V.S.Yadav, Advocate appeared
as PW-1; Som Nath, Stamp Vendor as PW-2; Ram Kumar as PW-3; Jai
Ram (Plaintiff) as PW-4 and Aad Ram, Registration Clerk was examined
as PW-5. Plaintiff also relied upon following documents:
Ex.P1 Copy of notice dated 19.8.93
Ex.P2 Endorsement on the agreement to sell dated 16.7.91
Ex.P3 Original agreement to sell dated 16.7.91
Ex.P4 Receipt of Rs.6,00,000/-
Ex.P5 Reply of the notice dated 1.12.93
Ex.P6 Re-joinder of the notice dt. 15.12.93
Ex.P7 Certified copy of order dt. 15.10.91 passed in the Court of
Sub-Registrar, Hansi.
Thereafter, evidence of the appellant-plaintiff was closed.
Defendant-respondent led his evidence and examined Pardeep Singh,
Clerk Sub-Registrar, Hansi as DW-1; Bajrang Lal Jain, deed writer as DW-
2; Roshan Lal as DW-3; Suresh as DW-4; Roshan son of Deasu as DW-5;
Rajender as DW-6; Lal Chand as DW-7 and P.K. Goel, Advocate as DW-8.
He also relied upon following documents:
Ex.D1 Copy of deed registered of Bajrang Lal Jain deed
writerEx.D1/A Photostat copy of the agreement to sell dated 14.2.91
Ex.D2 Special power of attorney executed by defendant
Jeeta in favour of Roshan Lal.
Ex.D3 Receipt of Rs.1 lac dt. 14.2.91.
Ex.D4 Receipt of Rs.2 lacs dt. 20.2.91
Regular Second Appeal No.2185 of 2006 5
Ex.D5 Certified copy of application dated 16.12.93
Ex.D6 to 8 Orders passed by Sub-Registrar dt. 16.12.93
Ex.D9 Affidavit of defendant Jeeta Ram
Learned trial Court took into consideration that agreement to
sell dated 14.02.1991 and 16.10.1991 as per appellant-plaintiff had never
been executed. Appellant-plaintiff had set out the case that only one
agreement to sell dated 16.07.1991 was executed. Learned trial Court
noticed that an application was filed by the defendant-respondent in the
Court with the request to direct the appellant-plaintiff to produce the original
agreement to sell dated 14.02.1991, original payment receipt dated
14.02.1991 and 16.10.1991 and the original agreement to sell dated
16.10.1991. Notice of the application was given to the appellant-plaintiff but
the learned counsel for the plaintiff stated that he does not want to file reply
to the application. Therefore, the application filed by the defendant-
respondent was decided and defendant-respondent was allowed to
produce the secondary evidence to prove these documents. Learned trial
Court further observed that in the secondary evidence, defendant produced
Ex.D/A the photostat copy of the agreement to sell dated 14.2.1991 and
this photostat copy of the agreement to sell dated 14.02.1991 was put to
the plaintiff by the learned counsel for the defendant and the plaintiff has
admitted his signatures on agreement to sell dated 14.02.1991 without any
reservation or objection. This document was proved from the admission of
the plaintiff by accepting his signatures and no further proof was required to
prove this document. Trial Court also came to the conclusion that plea of
the defendant-respondent that no fresh agreement to sell was executed on
16.07.1991, is not convincing. However, trial Court found that there were
certain additions and alterations in the agreement to sell and receipt (Ex.P3
and P4). It also relied upon the admission of the witnesses that the
Regular Second Appeal No.2185 of 2006 6
documents have been typed with different ribbon. The trial Court also found
that this fact has been also accepted by appellant-plaintiff while appearing
in the witness box as PW-4. It will be apposite here to reproduce the
following finding given by the trial Court:
“12. Now the most important fact of the present case is
the existence and execution of agreement to sell dated
16.10.91. As per the contention of the plaintiff, no such
agreement was ever executed by the defendant in favour of
the plaintiff whereas as per the case of the defendant, the last
agreement to sell was executed by the defendant in favour of
the plaintiff on his request on 16.10.91 and the time was
extended upto 16.12.93 for execution and registration of the
sale deed. Plaintiff did not produce the original agreement to
sell despite the fact that the defendant had filed an application
in the Court with a request to direct the plaintiff to produce the
original agreement to sell dated 16.10.91 in the Court. Ld.
Counsel for the plaintiff has stated in the Court that he does
not want to file the reply of the application. Keeping in view the
statement of Ld. Counsel for plaintiff, the defendant was
allowed to prove agreement to sell dt. 16.10.91 by producing
secondary evidence. In the secondary evidence, defendant
produced Ex.D1, the abstract of the register of Sh.Bajrang Lal
Jain, deed writer and also produced the oral evidence to prove
the execution of an agreement to sell dated 16.10.91. In the
oral evidence, defendant examined Bajrang Lal Jain as DW2.
He deposed that on 16.10.91 on the instructions of Jeeta
Ram, he had scribed an agreement to sell in respect of the
one-half share of the land measuring 56 kanal. The previous
agreement to sell dated 16.7.91 was relating to the land
measuring 57 kanal 13 marla to the extent of its half share. He
further deposed that the date for execution and registration of
the sale deed was fixed for 16.12.93. He further deposed that
he read over the contents of the agreement to sell to the
parties to the agreement as well as to the witnesses and they
put their thumb impressions/ signatures after understanding
the contents of the agreement to sell as true. This agreement
was entered in his register at serial No. 320 which bears the
Regular Second Appeal No.2185 of 2006 7signatures of Jeeta Ram. This witness has proved and
testified Ex.D1, copy of his register. Defendant also examined
DW5 Roshan Lal son of desu and DW6 Rajender who are the
attesting witnesses of the agreement to sell dated 16.10.91.
No evidence, whatsoever, has been produced by the plaintiff
in rebuttal to rebut the evidence of the defendant.
14. … … … … The readiness and willingness of the
defendant to execute his part of contract is proved from the
perusal of the documents Ex.D5 to D9. Ex.D5 is the certified
copy of an application filed by defendant Jeeta Ram before
Sub-Registrar, Hansi to get his presence marked. Ex.D6 to D8
are the orders passed by Sub-Registrar, Hansi on 16.12.93.
Ex.D9 is the affidavit filed by the defendant Jeeta alongwith an
application Ex.D5. These documents also proved from the
perusal of the statement of Sh.P.K.Goel, Adv. (DW8). He
deposed that on 16.12.93 on the instruction of Jeeta Ram, he
had drafted the application Ex.D5 and read over the same to
Jeeta Ram. He signed the application after understanding the
contents of the application as correct. Sh.P.K. Goel, Adv. has
further deposed that he also put his signatures on the
application. Therefore, the application was filed in the office of
Sub-Registrar, Hansi. The defendant remained in the office of
Sub-Registrar, Hansi throughout the day but the plaintiff Jai
Ram did not appear on that day. He further deposed that the
defendant had also filed his affidavit Ex.D9 before the Sub-
Registrar, Hansi. From the perusal of the statement of Sh.P.K.
Goel, Adv. and the documents from Ex.D5 to D9, it is fully
proved on file that on 23.12.91 defendant remained present in
the office of Sub-Registrar, Hansi to get the sale deed
executed and registered in favour of the plaintiff but the
plaintiff did not turn up.”
Trial Court, thus concluded that the appellant-plaintiff shall be
entitled to get the sale deed executed from the Court if the defendant-
respondent fails to execute and register the sale deed in favour of the
appellant-plaintiff and returned the finding of fact that the appellant-plaintiff
Regular Second Appeal No.2185 of 2006 8
was never ready and willing to perform his part of the contract and he did
not appeared in the office of Sub-Registrar, Hansi on 16.12.1991 to get the
sale deed executed and registered in his favour despite the fact that he
was requested by the defendant by filing the reply of the notice to appear in
the office of Sub-Registrar, Hansi on 16.12.1993 and he had the
knowledge of this fact. A further finding was that appellant-plaintiff was
bound by the terms and conditions of the agreement to sell (Ex.P-3).
These findings have been concurred by the appellate Court. It
is further stated that defendant-respondent cannot be held responsible for
not obtaining the income tax clearance certificate as the agreement to sell
does not record any condition regarding obtaining the income tax
certificate. It is further held that appellant-plaintiff had not served notice
upon the defendant-respondent asking him to obtain income tax clearance
certificate. It is further held that this plea has been taken for the first time
only to wriggle out of the contract. It is further noticed that appellant-plaintiff
was a government employee. He had not shown that he had any other
source of income and concluded that appellant-plaintiff has to stand on his
own legs and prove all the averments. He cannot take advantage of the
weakness of the defendant-respondent. It was incumbent upon the
appellant-plaintiff to show that he was ready and willing and was
possessed of the sufficient amount to translate its intention.
I have heard Mr.L.N. Verma, counsel for the appellant-plaintiff.
He was asked to formulate precise substantial question of law, on which
this Court ought to ponder and determine whether any interference is
called for to set aside the concurrent findings of two courts below or not.
Mr.Verma has stated that he has formulated questions of law in his
grounds of appeal. In ground No.10 of the grounds of appeal, a substantial
question has been enumerated therein as (a) to (j). Except that obtaining of
the income tax clearance certificate was mandatory, all other questions of
Regular Second Appeal No.2185 of 2006 9
law formulated by the appellant-plaintiff cannot be said to be worth
consideration as they call for re-appraisal and re-appreciation of the
evidence. Regarding obtaining of the income tax clearance certificate, as
envisaged under Section 230-A of the Income Tax Act, admittedly
Appellate Court had already held that it was not a part of the contract and
appellant-plaintiff had not called upon the defendant-respondent to obtain
the income tax clearance certificate and from the accompanying facts, a
concurrent finding of fact has been arrived at by the two courts below that
there is no evidence to infer that the appellant-plaintiff was ever ready and
willing to execute his part of the contract and was possessed of the
sufficient amount.
That being so, well reasoned findings recorded by the two
courts below cannot be set aside and there is no merit in the present
appeal and the same is dismissed.
[KANWALJIT SINGH AHLUWALIA]
JUDGE
October 15, 2008
rps