JUDGMENT
U.C. Maheshwari, J.
1. This appeal is directed by the appellant/defendant under Section 96 of the CPC being aggrieved by the judgment and decree dated 22.7.2000 passed by the IInd Addl. District Judge, Shahdol in Civil Suit No. 7-A/2000 whereby the suit filed by the respondent for specific performance and, in alternate, for returning the sum of Rs. 1,46,200/-has been decreed against him for the sum of Rs. 1,07,500 with interest @ 6% P.A from the date of filing the suit by refusing the prayer of specific performance of contract.
2. The facts giving rise to this appeal in short are that respondent filed the aforesaid suit against the appellant contending that the appellant entered in agreement to sale dated 12.11.96 with him in respect of the house and its adjoining open land described in the map annexed with the plaint situated in front of Nehru Degree College, Budhar in consideration of Rs. 1,20,000/-, out of which Rs. 1,07,500/-was taken by the appellant as earnest money on execution of the agreement to sale. It is further pleaded that appellant was in genuine need of the sum for his family that is why he contracted to sale his house by the aforesaid agreement. As per terms of the contract, after receiving the remaining consideration, the registered sale-deed was to be executed by the appellant in favour of the respondent. The respondent was remain ready and willing to perform his part of the contract for which he asked the appellant on various occasions to perform his part of the contract but appellant failed to perform his part in this regard. Subsequent to the agreement, the respondent discovered the fact that the aforesaid property was not the exclusive property of the appellant but it is the joint property with his brother Munnalal. Before filing the suit, the respondent also sent a notice dated 25.10.99 to call-upon the appellant for performance of the contract by executing the sale deed after receiving the remaining consideration of Rs. 12500/-. The same was replied by denying the execution of the aforesaid agreement with false averments. In such premises, the respondent filed the suit for specific performance and, in alternative, for the decree of refunding the aforesaid earnest money of Rs. 1,07,500/-along with interest at the rate of one percent per month. In such premises, including the interest, he filed the aforesaid suit on the valuation of Rs. 1,46,200/-.
3. By filing the written statement, the averments of the aforesaid plaint are denied by the appellant. It is also pleaded that he did not have any harmonial relationship with the respondent at any point of time. He neither entered in the alleged agreement to sale with the respondent nor received any advance payment or earnest money in that regard. The signature on the alleged agreement dated 12.11.96 is also denied stating that the same is false and fabricated document prepared with the connivance of its witnesses. The alleged house is a joint property of the appellant along with his brother. In addition, it is also pleaded that the aforesaid house was having the worth of more than Rs. 3.50,000/-, so the question for selling it in consideration of Rs. 1,20,000/-did not arise. In the alleged agreement to sale, the total consideration of the property and its place of execution along with the time and period for performance of the contract are also not mentioned. In such premises, the agreement appears to be suspicious and a fabricated document. The appellant being money-lender, is doing such business in regular course. On receiving the notice of the respondent, the same was replied by denying the execution of the aforesaid contract and receiving the earnest money. With these pleadings, the prayer for dismissal of the suit was made.
4. In the light of the pleadings of the parties, as many as five issues were framed and the evidence was recorded. On appreciation of the same, the suit of the respondent for specific performance was dismissed while the same was decreed for returning the aforesaid earnest money Rs. 1,07,500/-along with the interest at the rate of Rs. 6% P.A from the date of fling the suit. Being aggrieved by this decree, the appellant/defendant has come toThis Court with this appeal.
5. Shri R.P.Khare, learned appearing counsel for the appellant assailed the impugned judgment saying that the alleged agreement is neither signed nor executed by the appellant. By elaborating his argument, he said that in the lack of mentioning the place of its execution, the total consideration, duration, and the date of performance of such contract, the same appears to be suspicious and is not admissible under the law. It was also said that the embossed stamps, on which it is written, was purchased for some other purpose in the name of respondent on dated 15.5.96 and the alleged aforesaid agreement was executed on dated 12.11.99. The same did not have the signature of purchaser on back-side of it in compliance of Rule 39 of the Stamp Rules. The signature of the appellant on it, has also not been proved by any admissible evidence. The date on the top and remaining part of the agreement are written with different pen and ink. In such premises, such documents, prima facie appears to be forged and fabricated. He further said that the mentioned consideration Rs. 1,07,500/-was never received by the appellant. The same has not been proved by any cogent and reliable evidence. In such circumstances, the trial court ought to have dismissed the respondent’s suit in its entirety but the same has been decreed for refunding the money under the wrong premises. With these submission, he prayed for allowing this appeal.
6. On the other hand, responding the aforesaid arguments, the respondent’s counsel Shri Abhinav Dubey, by justifying the impugned judgment and its findings said that the same is based on proper appreciation of the evidence and is in conformity with law. It does not require any interference at this stage. He also said that the alleged agreement was executed in presence of the witnesses after receiving the advance consideration of Rs. 1,07,500/-without disclosing the fact that the property the subject matter of the agreement was the joint property of the appellant and his brother. Subsequently, such fact was discovered by the respondent. The respondent asked the appellant on various occasion to perform his part by executing the sale-deed, after receiving the remaining consideration. He also sent a notice, inspite it, the appellant failed to perform his part of the contract and replied the notice with false averments, on which, the suit for specific performance was filed with alternative prayer for returning the money. Considering the circumstance that the property was not the exclusive property of the appellant, the trial court declined to decree the suit for specific performance. Instead it, the same was passed for refunding the earnest money. With these submissions, he prayed for dismissal of this appeal.
7. Having heard the counsel, I have carefully examined the record of the trial court, also perused the impugned judgment along with the decree. I am of the considered view that the impugned judgment has been passed with due appreciation of the evidence led by the parties. The same does not require any interference at this stage. Thus, this appeal deserves to be dismissed because of the following reasons.
8. Civil cases are always decided on the basis of the probabilities and on appreciation of the evidence and if the case pleaded by the plaintiffs appears to be probable then the suit deserves to be decreed.
9. It is true that the embossed stamps of the alleged agreement was purchased in the name of the respondent on dated 15.5.96 from Stamp Vendor. At the time of purchasing the stamp, below endorsement of the Stamp Vendor, it is not signed by the purchaser or any other person through whom it was brought. But mere on this ground this document could not be treated to be suspicious document if the same is proved otherwise by its witnesses and other available evidence.
10. On going through such agreement, it appears that the same has been executed to sale the house situated in front of Nehru Degree College, Budhar. Although, the entire agreed consideration has not been mentioned in it but according to its contents, Rs. 1,07,500/-was taken by the appellant as advance consideration of the aforesaid sale transaction and according to it, the remaining consideration was to be paid at the time of registration of the document. Although, the entire consideration and the place of execution are not mentioned in it but the necessary information required for agreement to sale are available in it. I have not been apprised with any law or procedure showing that the agreement to sale should be drafted under some format or by disclosing the total consideration, the place of execution. Therefore, in the lack of said information, such agreement could not be treated as suspicious document, although, its impact could be considered to decide the conduct of the parties whether it was a bonafide transaction for selling the property or the same was executed for any other necessity.
11. The aforesaid agreement (Ex.P/1) as alleged, was written by Harbans Singh, the respondent himself and as alleged, it is signed by the appellant in presence of the witness Sujan Singh, after receiving the earnest money Rs. 1,07,500/-on dated 12.11.96. Mr Sujan Singh has also signed the same as witness of the execution. In evidence of respondent Harbans Singh (PW 1), he categorically deposed about the aforesaid transaction and payment of the earnest money to the appellant and proved the aforesaid agreement (Ex.P/1). Although, he stated that as per contract, appellant agreed to sale the aforesaid house in consideration of Rs. 1,20,000/-. In the lack of mentioning such consideration in the aforesaid agreement, this version of the appellant is not admissible in view of Section 91 and 92 of the Evidence Act. Such provision says that if any contract is in writing between the parties, then contrary to it, the oral evidence is not admissible. However, he has proved the execution of the agreement, by which Rs. 1,07,500/-was given to the appellant with intent to purchase the aforesaid house property. Although total consideration of money is not mentioned in the agreement but on giving the notice before filing the suit, the same was mentioned in it. His testimony is further supported by his witness Sujan Singh (PW 2), the signatory of the aforesaid agreement (Ex.P/1). He categorically stated that in his presence appellant agreed to sale his house to the respondent in consideration of Rs. 1,20,000/-and executed the agreement after receiving the advance consideration of Rs. 1,07,500/-. On going through the cross- examination of both the witnesses, I have not found any material circumstance destroying their deposition stated in-chief regarding payment of earnest money.
12. On the other hand appellant Lallaram (D.W.1) himself entered in the witness-box and stated that he never entered into the alleged agreement to sale with the respondent. He did not have any relations with the respondent. He also denied his signatures on the aforesaid agreement. In addition, it was also deposed that he had his house at Budhar in front of the Law College, where the rate of the land is Rs. 300/-sq.ft. He also stated that appellant is involved in a money lending business and use to give the loan at the rate of five percent per month. But in cross-examination, he denied his signatures, even on the last page of his written statement filed before the trial court, he specifically stated that except the Vakalatnama, he has not signed any papers of this case. In continuation of this question, again he admitted his signatures only on the first page of the written statement. Accordingly, he denied his signatures even on the written statement. This conduct is sufficient to draw an inference that just to avoid the liability to pay the sum of respondent, he has given false statement before the court stating that he did not sign the alleged agreement.
13. In the aforesaid circumstances, the respondent has proved his case by examining himself and also by examining the attested witness Sujan Singh (P.W. 2). On comparing the evidence of both the parties, even at this stage, the evidence led by the respondent appears to be probable and reliable and the civil cases are always decided on the basis of probabilities.
14. If the conduct of the parties, is suspicious and appears to be dishonest on account of denying the admitted signature then such witness should not be relied on. Such question was considered and answered byThis Court on earlier occasion in the matter of Har Charan Singh v. Turza Bai Devaji Kunbi 1994 JLJ 197 in which it was held as under:
6. So far as the factual plea, sought to be raised by the appellant is concerned, the learned Member of the Claims Tribunal has come to a correct conclusion that the appellant is a blatant liar. His oral version was rightly rejected by the Claims Tribunal when he said that he had nothing to do with the truck involved in the accident. The learned Member rightly took note of the fact that soon-after the accident, as deposed by the Head Constable Shivnandan (AW 4), it was the appellant who was present a the time of Panchnama at the scene of the accident and had engaged labourers to carry the truck which had turned turtle in the accident. When a legal notice was sent to him by the claimants, through their lawyer at Balaghat, he got drafted a reply through his counsel at Nagpur and denied his liability towards compensation, but accepted the ownership of the truck. He was brazenly dishonest and blatantly false when he went to the extent of denying the signature on the vakalatnama filed in the case on his behalf, by the counsel engaged for him….
Although the aforesaid case was based on denial of signatures on the Vakalatnama, but the principle laid down in it is applicable in the present case in which the appellant has denied his signature on the written statement filed with his signature.
15. Coming to the argument of the appellant’s counsel that respondent has failed to prove his signature on the alleged agreement. In view of the deposition of the respondent which is further supported by his witness Sujan Singh (PW.2), it has been proved that the agreement was executed by the appellant after receiving the aforesaid earnest money and looking to the dishonest conduct of the appellant from his deposition, I have found sufficient circumstance to draw an inference against the him that the agreement (Ex.P/1) was signed by him and he is denying the same only to avoid the decree of refunding such sum. Thus, in such circumstances, in order to prove the signature of the appellant on the agreement, the expert evidence was not required. Under the law, no format for agreement to sale has been prescribed. Even the definition of `agreement to sale’ defined under the last part of Section 54 of the Transfer of Property Act, does not direct the manner to draft the agreement to sale. Accordingly, it is held that in the lack of any prescribed format of `agreement to sale’ and in the lack of some information in it, it could not be said that the same is suspicious. The requisite informations are available in the agreement for enforcing the same thus it could not be discarded. In such premises, the trial court has not committed any error in relying on the agreement (Ex.P/1).
16. On the date of the agreement, it was not known to the respondent that the disputed property is a joint property of the appellant and his brother. Appellant executed (Ex.P/1) stating that he is the sole-owner of the house but subsequently, it was discovered that the property is a joint property. Besides that, considering the circumstances that some material information is not mentioned in the agreement and the suit is also filed at the fag-end of the limitation, the trial court by refusing the prayer of specific performance to the respondent passed the decree only for refunding the earnest money.
17. In view of the provision of Section 20 of the Specific relief Act, in the aforesaid circumstances, the trial court was at liberty to refuse the decree for specific performance by passing the decree of refunding the earnest money along with interest. In such premises, the impugned judgment and decree do not require any interference at this stage.
18. In view of the aforesaid, I have not found any perversity, infirmity or illegality either in appreciating the evidence or in considering the legal position by the trial court while passing the impugned judgment.
19. Therefore, under the aforesaid premises, I have not found any merits in this appeal, hence by affirming the judgment and decree of the trial court, the same is hereby dismissed. The appellant shall bear his own cost and shall also bear the cost of the respondent through-out. Counsel fee is quantified as per schedule. Decree be drawn-up accordingly.
20. The appeal is dismissed as indicated above.