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2003 DIGILAW 552 (PNJ)

Meena Rani v. Ajaib Singh

2003-04-22

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code) challenging concurrent findings of facts recorded by both the Courts below holding that the defendant-appellant is under legal obligation to perform her part of the agreement dated 21.8.1998 Ex.P4 by executing sale deed in favour of the plaintiff-respondent. The plaintiff-respondent is to pay a sum of Rs. 11,000/- after deducting costs of the suit and in case the defendant-appellant failed to execute the sale deed, the plaintiff-respondent has been held entitled to get the sale deed executed through Court. The plaintiff-respondent has also been found entitled to possession of the suit property at the time of execution of the sale deed and the defendant-appellant is perpetually restrained from interfering in the suit property in any manner whatsoever. 2. The Civil Judge in his judgment dated 5.11.2000 has found that the agreement dated 21.8.1998 Ex.P4 was not a forged document as was alleged by the defendant-appellant. It has further been found that the filing of a suit by the plaintiff-respondent registered as Civil Suit No. 352 of 10-9.1998 Ex.D1 against the defendant-appellant would not constitute a bar for filing the suit for specific performance from which the instant appeal has arisen because in earlier Civil Suit No. 352 of 10.9.1998, the plaintiff-respondent has claimed relief of permanent injunction against the defendant-appellant. At that stage, no suit for specific performance could have been filed because the date of execution of the sale deed fixed between the parties was 21.2.1999. Therefore, on issue No. 1 the findings were recorded by the learned Civil Judge against the defendant-appellant. On issue Nos. 3 and 4, the Civil Judge held that agreement dated 21.8.1998 was validly entered into and a sum of Rs. 54,000/- was paid by the plaintiff-respondent to the defendant-appellant and he had locus standi to file the suit for specific performance. On issue No. 5, the Civil Judge held that the plaintiff-respondent approached the Sub Registrar, Barnala on 19.2.1999 and 22.2.1999. Exs.P5 and P6 showing bis presence for performing his part of the agreement and also showing that the defendant-appellant had not come to the office of Sub Registrar, Barnala. The plaintiff-respondent was always will-ing and ready to perform his part of the contract. Exs.P5 and P6 showing bis presence for performing his part of the agreement and also showing that the defendant-appellant had not come to the office of Sub Registrar, Barnala. The plaintiff-respondent was always will-ing and ready to perform his part of the contract. It has further been held that he visited the office of Sub Registrar, Barnala along with remaining sale consideration. However, the defendant-appellant is not wiling to perform her part of the contract. 3. On appeal, the Additional District Judge, Barnala has recorded that no arguments were addressed on issue Nos. 1, 3, 4 and 5. Therefore, the findings on the aforementioned issues were held to be correct and affirmed. Similar opinion has been recorded by the learned Additional District Judge on issue No. 6 with regard to payment of special costs. As no case was made out before the Civil Judge, the findings have also been affirmed by the learned Additional District Judge. Before the first Appellate Court two arguments were raised, namely, chat the suit filed by the plaintiff-respondent was barred under the provisions of Order II Rule 2 of the Code and that the agreement to sell was without any consideration. Both these arguments were repelled by the lower Appellate Court. 4. Mr. A.S. Jattana, learned counsel for the defendant-appellant has argued that both the Courts below have committed grave error in law by rejecting the argument based on Order II Rule 2 of the Code. The learned counsel maintained that once the plaintiff-respondent had filed Civil Suit No. 352 of 10.9.1998 seeking permanent injunction against the defendant-appellant in respect of the same property, no suit for specific relief could have been filed on 9.3.1999. The learned counsel further submitted that no consideration was ever passed on to the defendant-appellant and the agreement without consideration cannot be accepted in law. 5. After hearing the learned counsel, I do not feel persuaded to take a view different than the one taken by both the Courts below. The first argument of the learned counsel for the defendant-appellant that no new cause of action has arisen to the plaintiff-respondent for filing of the suit for specific performance on 9.3.1999 because he had already filed Civil Suit No. 352 of 10.9.1998 seeking permanent injunction, is liable to be rejected because Civil Suit No. 352 filed on 10.9.1998 was based entirely on a different cause of action. In that case, prayer was made for permanent injunction against the defendant-appellant restraining her from alienating the suit property to any one else on the basis of agreement to sell dated 21.8.1998. The cause of action for specific performance of the agreement arose only on 21.2.1999 which was the last date fixed for execution of the sale deed. Before 21.2.1999, there was no cause of action available to the plaintiff-respondent to seek specific performance of the agreement dated 21.8.1998. Therefore, the argument lacks merit and the same is rejected. Similar question has arisen before this Court in the case of Harbans Singh and Ors. v. Mohinder Singh and Ors., (2003-3)135 P.L.R. 330 and similar argument was rejected by placing reliance on a judgment of the Constitution Bench of the Supreme Court in the case of Gurbax Singh v. Bhoorulal, A.I.R. 1964 S.C. 1810 and reliance was also placed of Bengal Water Proof Ltd. v. Bombay Waterproof Mfg. Co., A.I.R. 1997 S.C. 1398. The aforementioned judgments fully support the view taken in this case. 6. The other argument that the agreement to sell dated 21.8.1998 was without consideration can also not be accepted in view of the concurrent findings of facts recorded by both the Courts below. The observations of the learned lower appellate Court in this regard reads as under :- "...........Kulwant Singh, PW4 an attesting witness to the agreement to sell Ex.P4, in clear cut terms stated that an amount of Rs. 54000/- was obtained by the defendant, at the time of the execution thereof, from the plaintiff. He further stated after obtaining the aforesaid amount, as earnest money, from the plaintiff, by the defendant, she made an endorsement, in this regard, in her own hand, on the agreement to sell, and appended her signatures underneath the same. Raghupat Rai PW3, deed waiter, also made a similar statement. Ajaib Singh, plaintiff, when appeared as PW5, also stated that a sum of Rs. 54000/-was received by the defendant, at the time of execution of the agreement to sell dt. 21.8.1998 and an endorsement was made by her, in this regard, in her own hand and appended her signatures, underneath the same. There was no reason, on the part of Raghupat Rai, PW3 and Kulwant Singh, PW4 to depose falsely in this regard. 54000/-was received by the defendant, at the time of execution of the agreement to sell dt. 21.8.1998 and an endorsement was made by her, in this regard, in her own hand and appended her signatures, underneath the same. There was no reason, on the part of Raghupat Rai, PW3 and Kulwant Singh, PW4 to depose falsely in this regard. They were thoroughly cross-examined by the counsel for the defendant, but nothing of consequence could be got elicited from their mouth, which may go to discredit their evidence, with regard to the payment of Rs. 54000/- as earnest money, by the plaintiff to the defendants, at the time of execution of the agreement to sell. Mnia Rani, defendant no doubt, appeared as DW1, and stated that she never received Rs. 54000/- under the agreement to sell. However, her bald statement, in this regard, in the face of cogent and convincing evidence led by the plaintiff, was hardly of any consequence. The trial court was thus right in holding that the agreement to sell was for consideration. The submission of the counsel for the appellant, being without merit, must fail and the same stands rejected." 7. It is well settled that this Court cannot set aside the concurrent findings of facts if the same are based on cogent evidence and are not afflicted by any other legal malady like perfunctory approach of the Courts below, the findings without evidence or that no reasonable man would reach the conclusion so recorded by the Courts below. A perusal of the above paragraph would show that there is ample evidence and the findings are based thereon. The appeal lacks merit and is liable to be dismissed. For the reasons stated above, this appeal fails and the same is dismissed.