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2012 DIGILAW 1870 (PNJ)

Balwinder Singh v. Sohan Singh

2012-12-20

M.JEYAPAUL

body2012
JUDGMENT Mr. M. Jeyapaul, J.: - C.M. No. 14211-C of 2012 The Court has taken up the main appeal for disposal on merit and decided for the same. Therefore, the application seeking condonation of delay has become purely academic and consequently the delay is condoned and the application is allowed. C.M. No. 14213-C of 2012 Heard. The application stands allowed. RSA No. 5098 of 2012 1. The unsuccessful defendants who suffered a decree for specific performance of the agreement of sale executed by Charanjit Singh the father of defendants no.1 to 4 and husband of defendant no.5 and later on by all the defendants have preferred the present appeal. 2. It is the case of the plaintiff that deceased Charanjit Singh having received earnest money of Rs.1,80,000/- entered into an agreement of sale with the plaintiff agreeing to sell the suit property for a sale consideration of Rs.3 lacs and executed the agreement of sale on 14.5.2002. The plaintiff marked his presence at the office of Sub Registrar on 12.5.2003, the last date fixed for execution of the agreement but unfortunately Charanjit Singh passed away on the said date. On 19.5.2003 again the defendants entered into an agreement of sale with the plaintiff. On 24.2.2004, the last day for execution of the sale deed, the defendants failed to come to the office of the Registrar and executed the sale deed. Therefore, the plaintiff had filed the suit for specific performance of agreement of sale. 3. The defendants have contended that Charanjit Singh never executed any agreement with the plaintiff to sell his residential house nor had he received any earnest money from the plaintiff. The signature of Charanjit Singh was obtained on a blank paper. They also denied the alleged agreement executed by them. They prayed for the dismissal of the suit. 4. Both the Courts having adverted to the evidence on record returned a finding that Ex.P1 agreement of sale was executed by Charanjit Singh in favour of the plaintiff and Ex. P5 executed by the defendants agreeing to sell the suit property in favour of the plaintiff and that the plaintiff was ready and willing to perform his part of the contract. Consequently, the suit for specific performance of the agreement of sale was decreed as prayed for. 5. P5 executed by the defendants agreeing to sell the suit property in favour of the plaintiff and that the plaintiff was ready and willing to perform his part of the contract. Consequently, the suit for specific performance of the agreement of sale was decreed as prayed for. 5. The learned counsel appearing for appellants-defendants would submit that there is misappreciation of evidence on record which ultimately culminated in erroneous and perverse finding. He would also submit that both the Courts below failed to appreciate the contentions of the defendants that the plaintiff having exerted pressure and undue influence got the agreement Ex. P5 executed from the defendants at the Police Station. He would also submit that the first agreement Ex. P1 which was allegedly substituted by the subsequent agreement P5 by the defendants cannot be the basis for granting a decree for specific performance of the agreement of sale. 6. On the side of the plaintiff, the plaintiff was examined as PW1 and the witness to Ex.P1 agreement of sale was examined as PW2 and the scribe of the said document was examined as PW3. The draftsman was examined as PW4. But on the side of the defendants the first defendant Balwinder Singh was examined in chief but he failed to appear to subject himself for Cross Examination by the plaintiff. In other words there is virtually no evidence on the side of the defendants. 7. Both the Courts below having adverted to the evidence of PW1 and PW3 in the background of the evidence of PW1 came to right conclusion that the agreement of sale Ex. P1 executed by Charanjit Singh in favour of the plaintiff agreeing to sell the suit property stood established. 8. Ex. P5 the agreement executed by the defendants in favour of the plaintiff is found to be an agreement not in variation of the original agreement Ex. P1 executed by the father of defendants no.1 to 4 but an agreement reiterating the entire terms and conditions adumbrated in the original agreement. In other words the 2nd agreement Ex. P1 is not an agreement substituting, altering or rescinding the original agreement. In view of the above, Section 62 of the Indian Contract Act, 1872 does not apply to the case in hand. 9. In other words the 2nd agreement Ex. P1 is not an agreement substituting, altering or rescinding the original agreement. In view of the above, Section 62 of the Indian Contract Act, 1872 does not apply to the case in hand. 9. Even otherwise the plaintiff has not only established the execution of the agreement Ex.P1 by Charanjit Singh but also the subsequent agreement Ex.P5 executed by the defendants in favour of the plaintiffs reiterating the terms and conditions found in the original agreement, in the absence of any contra evidence from the side of the defendants. 10. Though, it was alleged that the 2nd agreement Ex. P5 was got executed by the plaintiff from the defendants at the police station by exerting pressure, undue influence and coercion, no evidence worth mentioning had been let in by the defendants. The chief examination of DW1 which was not subject to cross examination cannot be looked into as material evidence on the part of the defendants. 11. In my view, the Courts below have rightly granted the relief of specific performance of agreement of sale in favour of the plaintiff, on a thorough analysis of the evidence on record. The findings recorded by the Courts below are not found to be perverse. No substantial question of law also has arisen for determination. Therefore, the appeal stands dismissed. No costs. ---------0.B.S.0------------