Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 1459 (PNJ)

Gurdev Singh v. Uttamjit Singh

2009-08-19

HEMANT GUPTA

body2009
Judgment Hemant Gupta, J. 1. The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for specific performance of an agreement to sell dated 13.8.1999 was decreed. 2. The plaintiff has sought specific performance of the aforesaid agreement in respect of land measuring 24 Kanals 3 Marlas for a total sale consideration of Rs.3,62,250/-. Rs.2,70,000/- was paid as earnest money and the balance amount was to be paid on or before 31.12.2000, when the sale deed was to be executed. The plaintiff served a notice on 11.12.2000 calling upon the defendant to execute the sale deed either on 29.12.2000 or on 1.1.2001 as 30.12.2000 and 31.12.2000 were holidays. But still, the defendant did not execute the sale deed though the plaintiff remained present before the Sub Registrar on 29.12.2000 and on 1.1.2001. 3. In written statement, the stand of the defendant was that the agreement to sell is result of fraud. Defendant denied receipt of any earnest money. It was alleged that the plaintiff is a relative of one Jaswinder Singh Sethi. Son of the defendant is employed as driver for driving the truck with Mr. Sethi. Mr. Sethi had purchased the truck by taking loan from the bank. He could not repay the loan and the bank seized the truck. A suit for recovery is pending in the Civil Court at Chandigarh. It was denied that any agreement was executed and no money was ever given to the defendant. A simple pronote was scribed in the Court for the first time. The alleged agreement was written in lieu of that note to create the evidence for the money. 4. To prove the execution of the agreement and payment of earnest money, the plaintiff appeared as PW-1 and examined PW-2 Tarlochan Singh, one of the attesting witness and PW-3 Sham Bihari Lal, the scribe of the agreement. On the other hand, the defendant appeared as DW-1 and examined his son Gian Singh as DW-2. On the basis of the testimony of the witnesses, both the Courts have recorded a concurrent finding of fact that the defendant has executed the agreement to sell dated 13.8.1999 Ex.P-1 and has received earnest money of Rs.2,70,000/-. On the other hand, the defendant appeared as DW-1 and examined his son Gian Singh as DW-2. On the basis of the testimony of the witnesses, both the Courts have recorded a concurrent finding of fact that the defendant has executed the agreement to sell dated 13.8.1999 Ex.P-1 and has received earnest money of Rs.2,70,000/-. It was also found that the plaintiff was ready and willing to perform his part of the contract and consequently granted decree for specific performance of the agreement to sell. 5. In the second appeal, the defendant-appellant has filed an application for permission to lead additional evidence, so as to produce copy of the judgment and decree dated 10.3.1990 in a suit for specific performance filed by the plaintiff Uttamjit Singh against Gian Singh, son of the defendant, on the basis of agreement to sell dated 17.3.2000 in respect of land measuring 4 Kanals 19 Marlas. 6. The said suit for specific performance was filed on 16.9.2002 i.e. much before the decision of the suit by the learned trial Court on 25.9.2003. The appellant has not taken any step to move any application before the learned trial Court in respect of suit filed by the plaintiff against his son. The decree passed against the son of the defendant on the basis of separate agreement to sell is not relevant to determine the controversy in the present suit. Still further, the application has been filed after gross delay, though the appellant could move such application during the course of trial. Therefore, such application in second appeal is without any merit and the same is dismissed. 7. On merits, learned counsel for the appellant has raised an argument that PW-2 Tarlochan Singh, the attesting witness, is a chance witness, who happen to be at the time of execution of the agreement to sell, though the sum of Rs.2,70,000/- was purportedly paid at the time of the execution of the agreement. He is a relation of the plaintiff as well. Therefore, the finding that agreement to sell stands executed is vitiated in law. It is also argued that the plaintiff has not pleaded that he was ready and willing to perform his part of the contract. In the absence of such pleading, the decree for specific performance suffers from patent error in law and, thus, not sustainable. 8. Therefore, the finding that agreement to sell stands executed is vitiated in law. It is also argued that the plaintiff has not pleaded that he was ready and willing to perform his part of the contract. In the absence of such pleading, the decree for specific performance suffers from patent error in law and, thus, not sustainable. 8. The execution of the agreement is proved by the statement of PW-3 Sham Bihari Lal, the scribe of the agreement and that of plaintiff and attesting witness. It has been found that all the witnesses of the plaintiff were consistent so far as the execution of the agreement to sell is concerned. There are no discrepancies in their version. The stand of the defendant was that the agreement to sell was not executed and is result of fraud, but it was found that the defendant admits his signatures and of his son on the agreement to sell Ex.P-1. It is not explained that how the defendant and his son will sign a document unless it is intended to be so. 9. The findings recorded by the Courts below in respect of due execution of agreement to sell are sought to be disputed by reappreciation of evidence. Mere fact that witness is a relation of the plaintiff is not a ground on the basis of which his testimony can be disbelieved. The factum of relation will only require higher degree of scrutiny of his statement. The Courts below have examined the statement of the witness and found that there is no discrepancy and he is a truthful witness. Therefore, the findings recorded that agreement to sell Ex.P-1 is proved to be executed cannot be said to be suffering from patent illegality or irregularity. 10. The stand of the defendant was that the agreement to sell is result of fraud. The story propounded by the defendant has not been substantiated in any manner. 11. The argument that the plaintiff has not pleaded that he is ready and willing to perform his part of the contract is not tenable. In Padamawati and others v. Kulwant Rai and others 2008(2) P.L.R. 424, it was held to the following effect : "31. In reply to such paras, the case of the defendants is of a simple denial. The argument that the plaintiff has not pleaded that he is ready and willing to perform his part of the contract is not tenable. In Padamawati and others v. Kulwant Rai and others 2008(2) P.L.R. 424, it was held to the following effect : "31. In reply to such paras, the case of the defendants is of a simple denial. The plaintiffs vide Exhibit P.3 dated 6.12.1979 communicated that the plaintiffs are always ready and willing to perform their part of the contract. The subsequent conduct of the plaintiffs and defendant No.1 in contesting the suit filed by Bal Kishan also shows that the plaintiff and defendant No.1 were ad-idem in respect of sale and purchase of the property inter-se. The plaintiff Kulwant Rai, while appearing as PW-2 has deposed that he was ready and willing to get the sale deed registered in pursuance of the agreement Exhibit P.2 and is even now ready to get the sale deed registered. It is beyond dispute that it is for the plaintiff to plead and prove that he was/is always ready and willing to perform his/her part of the contract. Such facts are required to be pleaded and proved in terms of Section 16 of the Specific Relief Act, 1963. the plaintiffs have pleaded in respect of his readiness and willingness to seek performance of the agreement. It is also well settled that such ready and willingness is required to be inferred from the entire reading of the plaint and the evidence led. It is not the mere use of the words, which is relevant but the intention of the plaintiff has to be examined keeping in view the averments made in the plaint. (emphasis supplied) 32. In Udhav Singh v. Madhav Rao Scindia, AIR 1976 Supreme Court 744, the Honble Supreme Court has held that a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence and passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into. The intention of the party concerned has to be gathered, primarily, from the tenor and term of his pleading taken as a whole." 35. Although it is the substance and not merely the form that has to be looked into. The intention of the party concerned has to be gathered, primarily, from the tenor and term of his pleading taken as a whole." 35. In Motilal Jain v. Ramdasi Devi 2000(3) RCR (Civil) 545 : (2000) 6 SCC 420, the Supreme Court has the occasion to consider the Ouseph Vargheses case (supra) and Abdul Khader Rowthers case (supra). The Honble Supreme Court has also referred to Ramesh Chandra Chandiok and another v. Chuni Lal Sabharwal (dead) by his legal representatives and others, AIR 1971 SC 1238 and Syed Dastagirs case (supra). It was held that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale. The aforesaid judgments were quoted with approval in Sugani (Mst.) v. Rameshwar Das and another, 2006(4) RCR (Civil) 319: (2006)11 SCC 587." 12. If the plaint is read as a whole, the intention to prove the readiness and willingness has been clearly pleaded. The relevant paragraph reads as under: "2. That defendant entered into an agreement dated 13.8.1999 to sell the suit property fully detailed in the head note of the plaint to the plaintiff for a valuable consideration of Rs.3,62,250/- (at the rate of Rs.1,20,000/-). Earnesh money amounting to Rs.2,70,000/- have been paid. The sale deed was to be executed on or before 31.12.2000. The plaintiff on coming to know that 30.12.2000 and 31.12.2000 are holidays and sale deed cannot be executed, got issued notice dated 11.12.2000 through his Advocate Shri Subhash Chander Handa calling upon the defendant to get the sale deed executed on or before 29.12.2000 or even on 1.1.2001. This notice was duly received by him but the defendant has not come present to execute the sale deed. This notice was duly received by him but the defendant has not come present to execute the sale deed. The plaintiff got his presence marked from the office of Sub Registrar, Ambala on 29.12.2000 and as well as on 1.1.2001 by way of getting attested affidavits from the said authority while acting as Executive Magistrate. The plaintiff thereafter again got issued notice dated 17.1.2001 calling upon the defendant to get the sale deed executed within a period of 10 days. Despite all this the defendant has not come to get sale deed executed showing that his intention is not to perform his part of the contract. 3. That the plaintiff has performed his part of the contract by paying the earnest money of Rs.2,70,000/- and thereafter and had kept intact the balance sale consideration with him besides expenses etc. The defendant had never been ready and willing to perform his part of the contract as is evident from the fact of giving no response to the repeated requires and notices of the plaintiff." 13. If the averments made in the plaint are read, it is apparent that necessary pleadings have been made. 14. In view of the above, I do not find any reason to interfere with the findings recorded, in the present appeal. Hence, the present appeal is dismissed as no substantial question of law arises for consideration.