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2003 DIGILAW 1479 (PNJ)

Des Raj v. Bhim

2003-10-27

ADARSH KUMAR GOEL

body2003
Judgment Adarsh Kumar Goel, J. 1. Respondent No. 1 Bhim Dass filed a suit for possession by way of specific performance of agreement to sell dated 21.2.1979. His case is that the suit land was agreed to be sold to him and earnest money of Rs. 20,000/- was taken and sale deed was to be executed on or before 18.6.1979 which was later on extended to 18.6.1980. The plaintiff went to the office of the Sub Registrar with the remaining money on 18.6.1980 but the defendant-appellant did not turn up and plaintiff had always been ready and willing to perform his part of the contract and was still ready to do so but the defendant-appellant transferred the suit land in favour of his sons by way of a collusive decree. The defendant-appellant contested the suit, denying the execution of the agreement as well as extension of time for performance of the contract. The transferee also contested the suit. 2. The trial Court dismissed the suit holding that though execution of agreement Ex.P4 and payment of earnest money were duly proved, extension of time was not proved. It was observed that Suresh Kumar Deed-writer PW4 nowhere stated that he read over and explained the writing regarding extension of the date and they put their thumb impressions after admitting its contents to be correct. In the register of deed writer, entry regarding extension of time was not made though plaintiff PW6 claimed that an entry was made. There was no attestation of the writing regarding extension of time. The writing was also not signed by the deed writer. It was also held that the plaintiff was not able to prove that he was ready and willing to perform his part of the contract and neither a notice was served on the defendant nor version of the plaintiff was corroborated by any other evidence that he went to the office of the Sub Registrar. 3. On appeal, the view taken by the trial Court was set aside and suit of the respondent-plaintiff was decreed. It was held that extension of time was duly proved and plaintiff was proved to have been ready and willing to perform his part of the contract. 3. On appeal, the view taken by the trial Court was set aside and suit of the respondent-plaintiff was decreed. It was held that extension of time was duly proved and plaintiff was proved to have been ready and willing to perform his part of the contract. In para 9 of its judgment, learned lower appellate Court observed that evidence of PW4 proved that he made a writing extending the time upto 18.6.1980 and said writing was duly singed by the parties. Therefore, mere omission to make entry in the register of the deed writer to mention in his evidence that he read over the writing was also not material. Since a sum of Rs. 20,000/- had already been paid to the defendant, extension of time could not be held to be interpolation. Evidence of scribe was supported by the evidence of the plaintiff. It was also observed that extension was to benefit the defendant who could retain the land for further period of one year inspite of having received substantial amount and, therefore, plaintiff had no interest in making the interpolation. It was held that plaintiff was proved to have been ready and willing to perform his part of the contract. Accordingly a decree for possession was passed requiring the defendant to execute sale deed within one month failing which the plaintiff could have the sale deed executed within next two months. 4. Learned counsel for the defendant contended that extension of time has been endorsed on the original agreement instead of there being a separate document. He further submitted that attesting witnesses have not stated about extension of time while the lower appellate Court has misread the evidence to hold that attesting witnesses have also proved extension of time. He also submitted that application moved before the Sub Registrar to show presence of the plaintiff was not signed by the plaintiff when on the back side of the application name of the plaintiff was not correctly mentioned. It was further contended that it will be inequitable to require the appellant to execute the sale deed now as prices had gone up. 5. Learned counsel for the respondent on the other hand submitted that PW4 Suresh Kumar, Deed-writer clearly mentioned that time of agreement was extended upto 18.6.1980 and endorsement was in writing duly signed by Des Raj and Bhim. 5. Learned counsel for the respondent on the other hand submitted that PW4 Suresh Kumar, Deed-writer clearly mentioned that time of agreement was extended upto 18.6.1980 and endorsement was in writing duly signed by Des Raj and Bhim. This has also been so mentioned by PW6 Bhim who is the plaintiff. He further submitted that mere error in the spelling in the application Ex.P1 or even absence of signatures on the said application were of no consequence as readiness and willingness of the plaintiff to perform his part of the contract was duly established. Plaintiff had already paid substantial amount and had not taken possession and there could be no question of plaintiff not being willing to take possession on paying remaining amount which was a small amount. It was also submitted that merely because the lower Appellate Court mentioned that attesting witnesses also supported version of extension of time which may not borne out from the statement of the attesting witnesses, would also be of no consequence once extension of time is duly proved by the evidence of the deed writer and the plaintiff. He submitted that the question whether there was extension of time of execution of the agreement to sell was a pure question of fact which depended on appreciation of evidence and in absence of a substantial of law, finding recorded by the lower Appellate Court was not open to be interfered with. He submitted that endorsement on the main agreement to sell itself could have been validly made and was duly proved by the deed writer and the plaintiff as also by the circumstances of the case. He submitted that the plaintiff had always been willing to perform his part of the contract and time for performance of the agreement was upto 18.6.1980 and on failure of the defendant to perform his part of the contract, the suit was filed on 7.8.1980 which was almost immediately after refusal of the defendant to perform his part of the contract and, thus, rise in prices during pendency of litigation was not a factor for depriving the plaintiff of the right to seek specific performance of the contract. 6. After hearing learned counsel for the parties, I do not find any merit in this appeal. The appellant received substantial amount of the agreement and continued in possession. 6. After hearing learned counsel for the parties, I do not find any merit in this appeal. The appellant received substantial amount of the agreement and continued in possession. Extension of time stands proved by the evidence of the plaintiff and the deed writer and readiness and willingness of the plaintiff to perform his part of the contract also stands duly proved. Even if two views are possible, finding of the lower appellate Court in this regard is not liable to be interfered with. The defendant denied the execution of the agreement itself which has been duly proved. Mere rise in prices due to pendency of litigation is not a ground on which plaintiff could be denied his right to seek specific performance. Even if it is accepted that there is an error in the finding of the lower Appellate Court to the effect that attesting witnesses had also mentioned about extension of time, the same is of no consequence as extension of time stands duly proved from the evidence of deed writer, the plaintiff and circumstances of the case. Application before the Sub Registrar is only for showing willingness and readiness of the plaintiff to perform his part of the contract which is proved even independently of the document Ex.P-1. 7. For the above reasons, there is no merit in this appeal. No substantial question of law arises. Finding of the Appellate Court that execution of agreement to sell and willingness and readiness of the plaintiff was duly proved cannot be held to be perverse. The appeal is, accordingly, dismissed.