Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 1662 (PNJ)

Rakha Singh v. Gurbachan Singh s/o Narain Singh

2013-12-12

K.KANNAN

body2013
JUDGMENT Mr. K. Kannan, J.: (Oral)- The suit for specific performance was laid on an agreement dated 13.10.1978 under which the defendant was said to have agreed to sell the property in suit in favour of the plaintiff. The agreement stipulated that an advance of Rs.30,000/- had been received as earnest and the sale deed was to be completed before 15.07.1979. The plaintiff’s contention was that the rate of the property was fixed at Rs.2,600/-, but it was omitted to be stated in the agreement. The defendant took up the plea that the agreement was unenforceable since it was vague in its terms on an essential term of contract which ought to have been incorporated, namely, of the consideration in the sale. It was also the contention that the agreement was not for sale of property at Rs.2,600/- per kanal as contended by the plaintiff but it was negotiated for a price of Rs.4,000/- per kanal. 2. There had been a consideration of the issue whether parole evidence could be given by the parties regarding the consideration when the written instrument did not contain a recital. The Court found that Section 92, Proviso 2 admitted of such evidence since evidence regarding consideration was not inconsistent with any recital of the written instrument but it was only a manner of giving evidence of what the document was silent. Appraising the evidence of the witnesses, the trial Court found that the plaintiff’s witnesses had spoken about a consideration of Rs. 2,600/- which was acceptable. The suit was decreed on the above terms. In appeal by the defendant, the Court again took up the issue of whether the alleged terms as to consideration could be spoken to by oral evidence. The court found that the document was vague in its terms. It also adverted to the oral evidence regarding the sale consideration. First of all, examining the plaintiff’s version that the scribe had been informed about the sale consideration, the Court reasoned that if he had been so informed, it was inexplicable as to why such a recital of consideration had not been set forth. The lower appellate Court reasoned that Karma, Lambardar, who was not a marginal witness in the agreement, could not have spoken about the consideration. The lower appellate Court reasoned that Karma, Lambardar, who was not a marginal witness in the agreement, could not have spoken about the consideration. Balbir Singh had been actually shown as a witness of the document but he had not come to Court to give evidence about the alleged sale consideration. The Court, therefore, observed that it was drawing an adverse inference for the nonexamination of Balbir Singh. Considering the fact that the scribe, who had been informed about the consideration, had not actually recited the sale consideration in the document and taking an adverse inference for the non-examination of one of the marginal witnesses, the Court found that it was difficult to believe that the sale consideration had been fixed on that day at Rs.2,600/- per kanal. 3. The learned senior counsel appearing on behalf of the appellant would contend that the plaintiff had given evidence that the sale was fixed at Rs.2,600/- but no suggestion had been put to him that the consideration was not so fixed. I cannot accept this argument, for, the defendant’s contention has at all times been that the consideration fixed was Rs.4000/-. Indeed the Lambardar was examined by the defendant to support the plea that the consideration was fixed at Rs.4,000/-. After having made references to the respective statements of witnesses, the appellate Court found also that the impugned agreement was indefinite, vague and uncertain. There is surely therefore an examination by the court below of how an important feature regarding an agreement, namely, a matter of consideration had not been referred to and with conflicting views given as regards the consideration, the court chose not to grant the relief of specific performance. 4. The learned senior counsel argues that even if Rs.2,600/- were not to be accepted, the plaintiff would be willing to pay Rs. 4,000/- as stated by the defendant as the consideration. This argument cannot be placed by the plaintiff suing for specific performance. If it were to be contended that the consideration could also be Rs. 4,000/-, it only means that the plaintiff has no consistent version and he would try to take advantage of yet another bargain which was not his own. If Rs. 4,000/- were again to be taken as a consideration, then it must mean that the plaintiff’s version that the sale consideration was Rs. 2,600/- was a false case. 4,000/-, it only means that the plaintiff has no consistent version and he would try to take advantage of yet another bargain which was not his own. If Rs. 4,000/- were again to be taken as a consideration, then it must mean that the plaintiff’s version that the sale consideration was Rs. 2,600/- was a false case. Indeed a suit for specific performance which is a discretionary relief could not be granted to the plaintiff who comes to court with a false version. 5. While I have no difficulty in accepting that the oral evidence itself was not incompetent where the document was silent, there was certainly no definite evidence regarding consideration and the relief of specific performance being discretionary could not have been granted in favour of the plaintiff. I will not find any error in the appellate Court in not granting a decree in favour of the plaintiff. I find no reason to interfere with the judgment of the appellate Court. The second appeal is dismissed for specific performance but allowed for refund of sale consideration. The respondent shall be entitled to costs. I, however, direct the refund of Rs. 30,000/- paid as advance to the plaintiff with interest at 6% per annum from the date of agreement till date of payment. The amount shall constitute a change on the property agreed to be sold. Counsel’s fee Rs. 5,000/-.