{"id":103172,"date":"2008-10-15T00:00:00","date_gmt":"2008-10-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jai-ram-vs-jeeta-on-15-october-2008"},"modified":"2015-08-30T18:53:30","modified_gmt":"2015-08-30T13:23:30","slug":"jai-ram-vs-jeeta-on-15-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jai-ram-vs-jeeta-on-15-october-2008","title":{"rendered":"Jai Ram vs Jeeta on 15 October, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Jai Ram vs Jeeta on 15 October, 2008<\/div>\n
           IN THE HIGH COURT OF PUNJAB AND HARYANA\n                         AT CHANDIGARH\n\n\n                Regular Second Appeal No.2185 of 2006\n                  Date of decision: 15th October, 2008\n\n\nJai Ram\n\n                                                       ... Plaintiff - Appellant\n\n                                 Versus\n\nJeeta\n                                              ... Defendant - Respondent\n\n\nCORAM:      HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA\n\nPresent:    Mr. L.N. Verma, Advocate for the Plaintiff - Appellant.\n\n\nKANWALJIT SINGH AHLUWALIA, J.\n<\/pre>\n
            Appellant – Plaintiff, having remained unsuccessful in two<\/p>\n
courts below has assailed the judgment of the trial Court and appellate<\/p>\n
Court below by filing present regular second appeal.\n<\/p>\n
            Briefly stated, appellant-plaintiff had instituted a suit for<\/p>\n
recovery of Rs.12.00 lacs by way of damages and penalty of breach of<\/p>\n
contract, pleading that the defendant-respondent had executed an<\/p>\n
agreement to sell on 16.07.1991 for sale of half share of the total land<\/p>\n
measuring 57 kanals 13 marlas corresponding to 28 kanals 11 marlas for a<\/p>\n
consideration of Rs.4,99,000\/- per acre. It was averred in the plaint that<\/p>\n
Rs.6.00 lacs were paid to the defendant-respondent as an earnest money<\/p>\n
and the sale deed was to be executed and registered on or before 15th<\/p>\n
October, 1991. It was further pleaded that defendant-respondent had been<\/p>\n
evading execution of the sale deed despite the best efforts on the part of<\/p>\n
the appellant-plaintiff. It is further stated therein that the defendant-<\/p>\n
respondent, even had not obtained required income tax clearance
\n Regular Second Appeal No.2185 of 2006                                        2<\/span><\/p>\n
certificate from the authorities, which was a mandatory pre-requisite for<\/p>\n
execution of the sale deed. It was further stated that appellant-plaintiff on<\/p>\n
the expiry of the period calling for the defendant-respondent to pay double<\/p>\n
the amount as accrued, i.e. the amount of Rs.12.00 lacs, but defendant-<\/p>\n
respondent failed to do so, which instituted issuing a legal notice dated 28th<\/p>\n
October, 1993 upon the defendant-respondent. It was stated that the<\/p>\n
defendant-respondent had even refused to acknowledge the agreement to<\/p>\n
sell and appellant-plaintiff has already been ready and willing to execute<\/p>\n
his part of the contract by fulfilling the obligations, by which appellant-<\/p>\n
plaintiff was bound by contract. Notice of show cause was issued to the<\/p>\n
defendant-respondent. He filed a written statement and took a preliminary<\/p>\n
objection that no cause of action has arisen to file the suit and the suit is<\/p>\n
not maintainable in the present form and the appellant-plaintiff, by his own<\/p>\n
acts ought to have been estopped from filing suit and had not approached<\/p>\n
the Court with clean hands. There is non-performance of the contract on<\/p>\n
the part of the appellant-plaintiff, so it was time barred and by filing the suit,<\/p>\n
appellant-plaintiff has resorted to a fraud and misrepresentation.<\/p>\n
             On merits, it was submitted that agreement to sell was<\/p>\n
executed on 14.02.1991 instead of 16.07.1991 in respect of half share of<\/p>\n
land measuring 57 kanals 13 marlas for a consideration of Rs.4,99,000\/-<\/p>\n
and the sale deed was to be executed on 15th July, 1991. It was further<\/p>\n
stated that the appellant-plaintiff had paid only Rs.3.00 lacs to the<\/p>\n
defendant-respondent. Since on 15th July, 1991, appellant-plaintiff failed to<\/p>\n
arrange remaining amount of sale consideration and a request was made<\/p>\n
to execute a further agreement to sell in lieu of the old one and for that,<\/p>\n
signatures of the defendant-respondent were obtained. It is further stated<\/p>\n
that the new agreement to sell was not read over to the defendant-<\/p>\n
respondent and no witness was present at the time of execution of second<\/p>\n
agreement to sell. Defendant-respondent was informed that execution of
\n Regular Second Appeal No.2185 of 2006                                        3<\/span><\/p>\n
sale deed has been extended upto 15.10.1991. It was further submitted<\/p>\n
that on execution of second agreement to sell, no amount whatsoever, had<\/p>\n
been given to the defendant-respondent by the appellant-plaintiff. On 15th<\/p>\n
October, 1991, defendant-respondent had reached the office of Sub-<\/p>\n
Registrar, Hansi to perform his part of contract by executing and registering<\/p>\n
the sale deed in favour of the appellant-plaintiff. In the office of Sub-<\/p>\n
Registrar, Hansi, appellant-plaintiff met with the defendant-respondent and<\/p>\n
stated that he has been unable to arrange the remaining amount of sale<\/p>\n
consideration. It is stated that appellant-plaintiff was not possessed of<\/p>\n
amount of sale consideration and expenses for the registration of sale<\/p>\n
deed. However, with a malafide intention, appellant-plaintiff has got himself<\/p>\n
marked before the Sub-Registrar, Hansi.\n<\/p>\n
             It is stated that on the next date, i.e. 16th October, 1991,<\/p>\n
defendant-respondent came to tehsil complex and in lieu of old agreement<\/p>\n
to sell, fresh agreement to sell was executed in favour of appellant-plaintiff<\/p>\n
on the request of appellant-plaintiff and the same was got scribed by the<\/p>\n
deed writer. In the agreement to sell executed on 16.10.1991, the date for<\/p>\n
registration and execution of sale deed was extended upto 16th December,<\/p>\n
1993. It was stated that the previous agreement to sell was for land<\/p>\n
measuring 28 kanals 11 marlas but the last agreement to sell was for 28<\/p>\n
kanals. Since, both the parties had set out different versions, appellant-<\/p>\n
plaintiff reiterated his version by filing the replication. From the pleadings of<\/p>\n
the parties, following issues were drawn by the trial Court:<\/p>\n
      1. Whether the plaintiff is entitled to recover Rs.12,00,000\/- from the<\/p>\n
          defendant ? … OPP<\/p>\n<\/blockquote>\n
      2. Whether the plaintiff has no locus-standi to file and maintain the<\/p>\n
          present suit ? … OPD<\/p>\n<\/blockquote>\n
      3. Whether the suit is not maintainable in the present form ? … OPD
\n Regular Second Appeal No.2185 of 2006                                     4<\/span><\/p>\n<\/blockquote>\n
      4. Whether the plaintiff is estopped from filing the suit by his own act<\/p>\n
         and conduct ? … OPD<\/p>\n<\/blockquote>\n
      5. Whether the suit is time barred ? … OPD<\/p>\n<\/blockquote>\n
      6. Whether the suit has not properly been valued for the purposes of<\/p>\n
         Court fee ? .. OPD<\/p>\n<\/blockquote>\n
      7. Relief.<\/p><\/blockquote>\n
              Thereafter, evidence was led. V.S.Yadav, Advocate appeared<\/p>\n
as PW-1; Som Nath, Stamp Vendor as PW-2; Ram Kumar as PW-3; Jai<\/p>\n
Ram (Plaintiff) as PW-4 and Aad Ram, Registration Clerk was examined<\/p>\n
as PW-5. Plaintiff also relied upon following documents:<\/p>\n
      Ex.P1        Copy of notice dated 19.8.93\n      Ex.P2        Endorsement on the agreement to sell dated 16.7.91\n      Ex.P3        Original agreement to sell dated 16.7.91\n      Ex.P4        Receipt of Rs.6,00,000\/-\n      Ex.P5        Reply of the notice dated 1.12.93\n      Ex.P6        Re-joinder of the notice dt. 15.12.93\n      Ex.P7        Certified copy of order dt. 15.10.91 passed in the Court of\n                   Sub-Registrar, Hansi.\n\n\n<\/pre>\n
              Thereafter, evidence of the appellant-plaintiff was closed.<\/p>\n
Defendant-respondent led his evidence and examined Pardeep Singh,<\/p>\n
Clerk Sub-Registrar, Hansi as DW-1; Bajrang Lal Jain, deed writer as DW-<\/p>\n
2; Roshan Lal as DW-3; Suresh as DW-4; Roshan son of Deasu as DW-5;<\/p>\n
Rajender as DW-6; Lal Chand as DW-7 and P.K. Goel, Advocate as DW-8.<\/p>\n
He also relied upon following documents:\n<\/p>\n<\/p>\n
      Ex.D1            Copy of deed registered of Bajrang Lal Jain deed
\n                       writer<\/p>\n
      Ex.D1\/A          Photostat copy of the agreement to sell dated 14.2.91<\/p>\n
      Ex.D2            Special power of attorney executed by defendant
\n                       Jeeta in favour of Roshan Lal.\n<\/p><\/blockquote>\n
      Ex.D3            Receipt of Rs.1 lac dt. 14.2.91.\n\n      Ex.D4            Receipt of Rs.2 lacs dt. 20.2.91\n Regular Second Appeal No.2185 of 2006                                       5<\/span>\n\n\n\n\n      Ex.D5           Certified copy of application dated 16.12.93\n\n      Ex.D6 to 8      Orders passed by Sub-Registrar dt. 16.12.93\n\n      Ex.D9           Affidavit of defendant Jeeta Ram\n\n\n<\/pre>\n
              Learned trial Court took into consideration that agreement to<\/p>\n
sell dated 14.02.1991 and 16.10.1991 as per appellant-plaintiff had never<\/p>\n
been executed. Appellant-plaintiff had set out the case that only one<\/p>\n
agreement to sell dated 16.07.1991 was executed. Learned trial Court<\/p>\n
noticed that an application was filed by the defendant-respondent in the<\/p>\n
Court with the request to direct the appellant-plaintiff to produce the original<\/p>\n
agreement to sell dated 14.02.1991, original payment receipt dated<\/p>\n
14.02.1991 and 16.10.1991 and the original agreement to sell dated<\/p>\n
16.10.1991. Notice of the application was given to the appellant-plaintiff but<\/p>\n
the learned counsel for the plaintiff stated that he does not want to file reply<\/p>\n
to the application. Therefore, the application filed by the defendant-\n<\/p><\/blockquote>\n
respondent was decided and defendant-respondent was allowed to<\/p>\n
produce the secondary evidence to prove these documents. Learned trial<\/p>\n
Court further observed that in the secondary evidence, defendant produced<\/p>\n
Ex.D\/A the photostat copy of the agreement to sell dated 14.2.1991 and<\/p>\n
this photostat copy of the agreement to sell dated 14.02.1991 was put to<\/p>\n
the plaintiff by the learned counsel for the defendant and the plaintiff has<\/p>\n
admitted his signatures on agreement to sell dated 14.02.1991 without any<\/p>\n
reservation or objection. This document was proved from the admission of<\/p>\n
the plaintiff by accepting his signatures and no further proof was required to<\/p>\n
prove this document. Trial Court also came to the conclusion that plea of<\/p>\n
the defendant-respondent that no fresh agreement to sell was executed on<\/p>\n
16.07.1991, is not convincing. However, trial Court found that there were<\/p>\n
certain additions and alterations in the agreement to sell and receipt (Ex.P3<\/p>\n
and P4). It also relied upon the admission of the witnesses that the
\n Regular Second Appeal No.2185 of 2006                                      6<\/span><\/p>\n
documents have been typed with different ribbon. The trial Court also found<\/p>\n
that this fact has been also accepted by appellant-plaintiff while appearing<\/p>\n
in the witness box as PW-4. It will be apposite here to reproduce the<\/p>\n
following finding given by the trial Court:\n<\/p>\n
             “12. Now the most important fact of the present case is
\n      the existence and execution of agreement to sell dated
\n      16.10.91. As per the contention of the plaintiff, no such
\n      agreement was ever executed by the defendant in favour of
\n      the plaintiff whereas as per the case of the defendant, the last
\n      agreement to sell was executed by the defendant in favour of
\n      the plaintiff on his request on 16.10.91 and the time was
\n      extended upto 16.12.93 for execution and registration of the
\n      sale deed. Plaintiff did not produce the original agreement to
\n      sell despite the fact that the defendant had filed an application
\n      in the Court with a request to direct the plaintiff to produce the
\n      original agreement to sell dated 16.10.91 in the Court. Ld.
\n      Counsel for the plaintiff has stated in the Court that he does
\n      not want to file the reply of the application. Keeping in view the
\n      statement of Ld. Counsel for plaintiff, the defendant was
\n      allowed to prove agreement to sell dt. 16.10.91 by producing
\n      secondary evidence. In the secondary evidence, defendant
\n      produced Ex.D1, the abstract of the register of Sh.Bajrang Lal
\n      Jain, deed writer and also produced the oral evidence to prove
\n      the execution of an agreement to sell dated 16.10.91. In the
\n      oral evidence, defendant examined Bajrang Lal Jain as DW2.
\n      He deposed that on 16.10.91 on the instructions of Jeeta
\n      Ram, he had scribed an agreement to sell in respect of the
\n      one-half share of the land measuring 56 kanal. The previous
\n      agreement to sell dated 16.7.91 was relating to the land
\n      measuring 57 kanal 13 marla to the extent of its half share. He
\n      further deposed that the date for execution and registration of
\n      the sale deed was fixed for 16.12.93. He further deposed that
\n      he read over the contents of the agreement to sell to the
\n      parties to the agreement as well as to the witnesses and they
\n      put their thumb impressions\/ signatures after understanding
\n      the contents of the agreement to sell as true. This agreement
\n      was entered in his register at serial No. 320 which bears the
\n Regular Second Appeal No.2185 of 2006                                       7<\/span><\/p>\n
      signatures of Jeeta Ram. This witness has proved and
\n      testified Ex.D1, copy of his register. Defendant also examined
\n      DW5 Roshan Lal son of desu and DW6 Rajender who are the
\n      attesting witnesses of the agreement to sell dated 16.10.91.
\n      No evidence, whatsoever, has been produced by the plaintiff
\n      in rebuttal to rebut the evidence of the defendant.\n<\/p><\/blockquote>\n
      14.    … … … … The readiness and willingness of the
\n      defendant to execute his part of contract is proved from the
\n      perusal of the documents Ex.D5 to D9. Ex.D5 is the certified
\n      copy of an application filed by defendant Jeeta Ram before
\n      Sub-Registrar, Hansi to get his presence marked. Ex.D6 to D8
\n      are the orders passed by Sub-Registrar, Hansi on 16.12.93.
\n      Ex.D9 is the affidavit filed by the defendant Jeeta alongwith an
\n      application Ex.D5. These documents also proved from the
\n      perusal of the statement of Sh.P.K.Goel, Adv. (DW8). He
\n      deposed that on 16.12.93 on the instruction of Jeeta Ram, he
\n      had drafted the application Ex.D5 and read over the same to
\n      Jeeta Ram. He signed the application after understanding the
\n      contents of the application as correct. Sh.P.K. Goel, Adv. has
\n      further deposed that he also put his signatures on the
\n      application. Therefore, the application was filed in the office of
\n      Sub-Registrar, Hansi. The defendant remained in the office of
\n      Sub-Registrar, Hansi throughout the day but the plaintiff Jai
\n      Ram did not appear on that day. He further deposed that the
\n      defendant had also filed his affidavit Ex.D9 before the Sub-
\n      Registrar, Hansi. From the perusal of the statement of Sh.P.K.
\n      Goel, Adv. and the documents from Ex.D5 to D9, it is fully
\n      proved on file that on 23.12.91 defendant remained present in
\n      the office of Sub-Registrar, Hansi to get the sale deed
\n      executed and registered in favour of the plaintiff but the
\n      plaintiff did not turn up.”\n<\/p><\/blockquote>\n
             Trial Court, thus concluded that the appellant-plaintiff shall be<\/p>\n
entitled to get the sale deed executed from the Court if the defendant-\n<\/p><\/blockquote>\n
respondent fails to execute and register the sale deed in favour of the<\/p>\n
appellant-plaintiff and returned the finding of fact that the appellant-plaintiff
\n Regular Second Appeal No.2185 of 2006                                         8<\/span><\/p>\n
was never ready and willing to perform his part of the contract and he did<\/p>\n
not appeared in the office of Sub-Registrar, Hansi on 16.12.1991 to get the<\/p>\n
sale deed executed and registered in his favour despite the fact that he<\/p>\n
was requested by the defendant by filing the reply of the notice to appear in<\/p>\n
the office of Sub-Registrar, Hansi on 16.12.1993 and he had the<\/p>\n
knowledge of this fact. A further finding was that appellant-plaintiff was<\/p>\n
bound by the terms and conditions of the agreement to sell (Ex.P-3).<\/p>\n
             These findings have been concurred by the appellate Court. It<\/p>\n
is further stated that defendant-respondent cannot be held responsible for<\/p>\n
not obtaining the income tax clearance certificate as the agreement to sell<\/p>\n
does not record any condition regarding obtaining the income tax<\/p>\n
certificate. It is further held that appellant-plaintiff had not served notice<\/p>\n
upon the defendant-respondent asking him to obtain income tax clearance<\/p>\n
certificate. It is further held that this plea has been taken for the first time<\/p>\n
only to wriggle out of the contract. It is further noticed that appellant-plaintiff<\/p>\n
was a government employee. He had not shown that he had any other<\/p>\n
source of income and concluded that appellant-plaintiff has to stand on his<\/p>\n
own legs and prove all the averments. He cannot take advantage of the<\/p>\n
weakness of the defendant-respondent. It was incumbent upon the<\/p>\n
appellant-plaintiff to show that he was ready and willing and was<\/p>\n
possessed of the sufficient amount to translate its intention.<\/p>\n
             I have heard Mr.L.N. Verma, counsel for the appellant-plaintiff.<\/p>\n
He was asked to formulate precise substantial question of law, on which<\/p>\n
this Court ought to ponder and determine whether any interference is<\/p>\n
called for to set aside the concurrent findings of two courts below or not.<\/p>\n
Mr.Verma has stated that he has formulated questions of law in his<\/p>\n
grounds of appeal. In ground No.10 of the grounds of appeal, a substantial<\/p>\n
question has been enumerated therein as (a) to (j). Except that obtaining of<\/p>\n
the income tax clearance certificate was mandatory, all other questions of
\n Regular Second Appeal No.2185 of 2006                                    9<\/span><\/p>\n
law formulated by the appellant-plaintiff cannot be said to be worth<\/p>\n
consideration as they call for re-appraisal and re-appreciation of the<\/p>\n
evidence. Regarding obtaining of the income tax clearance certificate, as<\/p>\n
envisaged under Section 230-A of the Income Tax Act, admittedly<\/p>\n
Appellate Court had already held that it was not a part of the contract and<\/p>\n
appellant-plaintiff had not called upon the defendant-respondent to obtain<\/p>\n
the income tax clearance certificate and from the accompanying facts, a<\/p>\n
concurrent finding of fact has been arrived at by the two courts below that<\/p>\n
there is no evidence to infer that the appellant-plaintiff was ever ready and<\/p>\n
willing to execute his part of the contract and was possessed of the<\/p>\n
sufficient amount.\n<\/p>\n
            That being so, well reasoned findings recorded by the two<\/p>\n
courts below cannot be set aside and there is no merit in the present<\/p>\n
appeal and the same is dismissed.\n<\/p>\n<\/p>\n
                                        [KANWALJIT SINGH AHLUWALIA]
\n                                                             JUDGE
\nOctober 15, 2008
\nrps\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Jai Ram vs Jeeta on 15 October, 2008 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. 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