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2009 DIGILAW 1764 (PNJ)

Ram Narain v. Deputy Singh

2009-10-13

SABINA

body2009
JUDGMENT Sabina, J.:-Plaintiff Ram Narain filed a suit for possession, which was dismissed by the Additional Civil Judge (Sr.Divn.) Ambala Cantt. vide judgment and decree dated 26.11.2007. In appeal, the said judgment and decree were upheld by the Additional District Judge, Ambala vide judgment and decree dated 6.11.2008. Hence, the present appeal. 2. Brief facts of the case, as noticed by the lower appellate Court in para Nos.1 to 4 of its judgment, are as under:- “ According to appellant-plaintiff, on 15.9.2002, respondent-defendant had entered into an agreement to sell house No.76-L measuring 24' x 55' bearing Khasra No.16//5/2 situated in village Naggal, Tehsil and District Ambala, for a valuable consideration of Rs.1,50,000/-. Defendant had purchased it in 1972 vide a sale deed. As per the agreement to sell, Rs. 1,15,000/- were paid to defendant as earnest money. Defendant had agreed to execute the sale deed on or before 30.9.2002 on receipt of balance consideration. On 30.9.2002, date for execution of the sale deed was extended up to 10.10.2002. 2. On 10.10.2002, plaintiff had appeared before the Sub Registrar for getting the sale deed executed, but defendant did not turn up. Time for execution of the sale deed was again extended from 10.10.2002 to 18.10.2002. But on that day also, defendant failed to execute the sale deed. Plaintiff approached the defendant to execute the sale deed but without any result. Although plaintiff was and is ready and willing to perform his part of the contract. Hence, this suit. 3. It has been objected by the defendantrespondent that suit is not maintainable. Plaintiff has concealed true and material facts from the court. He has not come to the court with clean hands. Suit has not been framed as per rules. It is time barred. It is of course admitted that defendant is owner of the house. 4. It is further pleaded by defendant that plaintiff, who is a clever person, with the help of one Narmail Singh got prepared a false agreement to sell and obtained his thumb impressions on it. Conditions of said document were never told to him. No agreement as alleged was executed on 15.9.2002. Actually, defendant was called in Police Station Mahesh Nagar. There, he came to know that plaintiff had played a fraud upon him. Defendant never agreed to sell his house. So, suit may be dismissed.” 3. Conditions of said document were never told to him. No agreement as alleged was executed on 15.9.2002. Actually, defendant was called in Police Station Mahesh Nagar. There, he came to know that plaintiff had played a fraud upon him. Defendant never agreed to sell his house. So, suit may be dismissed.” 3. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether defendant executed an agreement to sell dated 15.9.2002 in favour of the plaintiff in regard of the suit land? OPP 2. Whether plaintiff was/is ready and willing to fulfil his part of agreement? OPP 3. Whether the suit is not maintainable? OPD 4. Whether plaintiff has not come to the Court with clean hands? OPD 5. Whether the suit is time barred? OPD 6. Relief. “ 4. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. 5. Plaintiff had filed a suit for specific performance of agreement to sell dated 15.9.2002. As per agreement to sell in question, the date for execution of the sale deed was fixed as on or before 30.9.2002. Earnest money of Rs.1,15,000/- was paid by the plaintiff to the defendant. The plaintiff in order to prove his case, appeared in the witness box as PW-1 and examined Narmail Singh (attesting witness) as PW-2. The defendant, on the other hand, denied the execution of the agreement to sell and himself appeared in the witness box as DW-1 and examined Sompal as DW-2. 6. It has been noticed by the Courts below that DW-2 Sompal had admitted the execution of the agreement to sell in favour of the plaintiff by defendant No.1. However, defendant as well as DW-2 denied the receipt of earnest money from the plaintiff on 15.9.2002. 7. A perusal of the agreement to sell in question shown by learned counsel for the appellant, during the course of agreements, reveals that it has been prepared on a proforma wherein names of the parties, amount and dates had been filled in. As per the endorsement on the back of the agreement to sell, the date for execution of the sale deed was extended from 30.9.2002 to 10.10.2002 and thereafter, vide another endorsement, the date for execution of the sale deed was extended from 10.10.2002 to 18.10.2002. As per the endorsement on the back of the agreement to sell, the date for execution of the sale deed was extended from 30.9.2002 to 10.10.2002 and thereafter, vide another endorsement, the date for execution of the sale deed was extended from 10.10.2002 to 18.10.2002. The endorsement vide which the execution of the sale deed was extended from 10.10.2002 to 18.10.2002 is not signed by any of the parties. The plaintiff, in order to establish that he was ready and willing to perform his part of the contract, placed on record his affidavit dated 11.10.2002 to the effect that he had remained present in the office of Sub Registrar on 10.10.2002 for execution of the sale deed but the defendant had failed to appear. However, there is no explanation as to why the plaintiff did not execute the affidavit on 10.10.2002 with regard to his presence in the office of the Sub Registrar. This shows that the plaintiff had not appeared before the Sub Registrar on 10.10.2002. The plea of the plaintiff that the date of execution of the sale deed was extended to 18.10.2002 is also without any basis as the endorsement in this regard on the agreement to sell has not been signed by any of the parties. By making the said endorsement, it is established that the plaintiff had tried to extend the date for execution of the sale deed without the consent of the respondent and was thus, not ready and willing to perform his part of the contract. In the peculiar facts of this case, the Courts below had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. ------------