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2013 DIGILAW 724 (PNJ)

Sukhwinder Singh v. Satnam Singh

2013-05-28

Jaswant Singh

body2013
JUDGMENT Mr. Jaswant Singh, J.:- Since there is delay of 8 days in filing the present appeal, an application bearing CM No.9047-C/2012 under Section 5 of the Limitation Act has been filed seeking condonation of said delay. The application is supported by an affidavit of Surinder Singh-son of deceased defendant-Bhan Singh. 2. For the reasons stated in the application supported by the affidavit of Surinder Singh, the same is allowed and delay of 8 days, being negligible is condoned. 3. Another CM bearing No.9046-C/2012 has been filed under Order 22 Rule 3 CPC for impleading the legal representatives of defendant Bhan Singh, who is stated to have died on 27.4.2012 leaving behind no other legal heirs except his six sons, detailed in para 3 of the application. The application is supported by an affidavit of one of the applicants-sons Surinder Singh. 4. For the reasons stated in the application, duly supported by the affidavit the same is allowed subject to all just exceptions and the applicants, as detailed in para 3 of the application are permitted to be brought on record as legal representatives of defendant Bhan Singh for the purpose of pursuing the present appeal. RSA 3388/2012. 5. Legal representatives of defendant-Bhan Singh are in second appeal against the concurrent findings recorded by both the Courts below whereby suit for specific performance filed by the respondents/plaintiffs was decreed by the learned Civil Judge (Junior Division)Gurdaspur vide judgement and decree dated 19.11.2009 and the findings thereof were affirmed by the learned Additional District Judge, Fast Tract Court, Adhoc, Gurdaspur vide judgement and decree dated 21.11.2011. 6. Facts in brief are that plaintiffs/respondents filed Civil Suit no.523 of 2006 for possession by way of specific performance of the agreement to sell dated 3.10.2005 in respect of land measuring 25 kanals owned by defendant Bhan Singh. It was alleged that Bhan Singh, being owner of the aforesaid land entered into an agreement to sell dated 3.10.2005 for a total sale consideration of Rs.11.60 lacs and received an earnest money of Rs.1 lac at the time of the execution of the said agreement. Further, an amount of Rs.4 lacs was to be paid on 20.11.2005 and the balance sale consideration of Rs.6.60 was to be paid on 15.6.2006 i.e. the date fixed for registration of the sale deed. Further, an amount of Rs.4 lacs was to be paid on 20.11.2005 and the balance sale consideration of Rs.6.60 was to be paid on 15.6.2006 i.e. the date fixed for registration of the sale deed. On 20.11.2005 when the plaintiffs/respondents approached the defendant-Bhan Singh to pay a sum of Rs.4 lacs as agreed in the agreement to sell , defendant refused to receive the same whereupon plaintiffs served a legal notice, accompanied by a demand draft for Rs.4 lacs, upon the defendant. The defendant replied the notice in negative and thus resiled from the agreement to sell. On the targeted date i.e. 15.6.2006, the plaintiff remained present in the office of Joint Sub Registrar, Dhariwal alongwith balance sale consideration of Rs.10.60 lacs plus requisite expenses for stamp, registration and sundry expenses but the defendant-Bhan Singh did not turn up to execute the sale deed. Hence the plaintiffs filed aforesaid Civil Suit No.523/2006 on 1.8.2006 for possession by way of specific performance of the agreement to sell dated 3.10.2005. 7. On the other hand, defendant Bhan Singh on 10.11.2005 filed Civil Suit No.82 of 2005 seeking declaration to the effect that the alleged agreement to sell dated 3.10.2005 was illegal without consideration, result of fraud and mis-representation and not binding on the plaintiff. It was case of the defendant-Bhan Singh that there was a quarrel between him and his sons Tarsem Singh and Ashok Kumar and as such he wanted to lodge a complaint with the police. Having confidence and trust in plaintiffs, he approached them to help him in this regard and instead the plaintiffs taking undue advantage obtained his signatures on blank stamp paper which was later forged into alleged agreement to sell dated 3.10.2005. Receipt of earnest money of Rs.1 lac was also denied. 8. Since the dispute in both the aforesaid Civil suits revolved around agreement to sell dated 3.10.2005, the learned Civil Judge (Junior Division) Gurdaspur vide order dated 12.3.2009 consolidated both the suits to which counsel for both sides had no objection and they made separate statements to that effect. 9. On the pleadings of the parties, issues were framed in both the Civil Suits and were dealt with in the light of the evidence adduced by the parties in support of their respective pleas. 10. 9. On the pleadings of the parties, issues were framed in both the Civil Suits and were dealt with in the light of the evidence adduced by the parties in support of their respective pleas. 10. In order to prove his case, plaintiff Satnam Singh appeared in the witness box as PW3; examined Gulzar Chand, marginal witness of the agreement as PW1 while Yash Pal, scribe of the agreement was examined as PW2. All these witnesses unequivocally deposed that Bhan Singh had executed the agreement to sell dated 3.10.2005 by putting his signatures thereon and also received a sum of Rs.1 lac as earnest money. On the other hand, defendant Bhan Singh though admitted his signatures on the agreement to sell but took the plea that his signatures were obtained by fraud and misrepresentation. Once the defendant had admitted his signatures the onus to prove fraud and misrepresentation shifted upon him but he failed to prove the same by leading any evidence. 11. As regards the readiness and willingness of the plaintiffs to perform their part of the agreement, it was found by the learned trial court that after the refusal of the defendant to receive a sum of Rs.4 lacs in terms of the agreement to sell, plaintiffs served upon him a legal notice which was accompanied by bank draft No.004779 for a sum of Rs.4 lacs. This notice was duly received by the defendant but he replied in negative. The readiness and willingness of the plaintiffs was further proved by Ex.P7 whereby they had got marked their presence before the Joint Sub Registrar,Dhariwal on 15.5.2006 alongwith balance sale consideration and other expenses required for registration of sale deed. 12. Once the due execution of the agreement to sell and readiness and willingness of the plaintiffs was proved the trial court decreed the suit of the plaintiffs whereas the suit of the defendant for declaration was dismissed vide judgement and decree dated 19.11.2009. 13. Aggrieved against the same, defendant Bhan Singh filed only one appeal against the judgement and decree passed by the trial whereby suit of the plaintiffs for possession by way of specific performance of the agreement to sell was decreed. He did not file appeal against dismissal of his suit for declaration that the agreement to sell in question was a result of fraud and misrepresentation. He did not file appeal against dismissal of his suit for declaration that the agreement to sell in question was a result of fraud and misrepresentation. Accordingly, the appellate Court vide judgement and decree dated 21.11.2011 besides dismissing the appeal of the defendant-Bhan Singh on merits also dismissed the same on the principle of res-judicata. Hence the present appeal. 14. It was argued by the learned counsel for the appellants that both the courts below erred in decreeing the suit of the plaintiffs who have failed to perform their part of the contract by not paying the second installment of Rs.4 lacs as stipulated in the agreement to sell dated 3.10.2005. It is further argued by the learned counsel that both the courts below have erred in not granting the alternative relief of refund of double the earnest money, as claimed by the plaintiffs. 15. After hearing the learned counsel, I find no merit in both the submissions made by the learned counsel for the appellants. 16. It has come in evidence that on 20.11.2005 when the plaintiffs approached the defendant with second installment of Rs.4 lacs he refused to accept the same whereupon defendants prepared a bank draft no.004779 dated 13.12.2005 drawn on Gurdaspur Central Co-operative Bank Limited, and sent the same alongwith registered legal notice but defendant refused to accept the same and in his reply to the said notice denied the execution of any agreement. Thus the defendant-Bhan Singh has tried to blow hot and cold in the same breath. On the one hand he is denying execution of the agreement to sell dated 3.10.2005 and on the other hand he is accusing plaintiffs of not performing their part of the contract which fortifies the claim of the plaintiffs that it is the defendant who failed to perform his part of the contract. 17. As regards the submission that the courts below have erred in not granting the alternative relief, once the due execution of the agreement to sell and readiness and willingness of the plaintiffs is proved, both the courts below have rightly held that equity demands enforcement of agreement rather than granting alternative relief of damages to the plaintiffs. It has further been rightly held that alternative prayer by the plaintiff in a suit cannot be construed as waiver or abandonment of main relief. 18. It has further been rightly held that alternative prayer by the plaintiff in a suit cannot be construed as waiver or abandonment of main relief. 18. Further, as already noticed above, the defendant had only challenged the decreeing of the suit of the plaintiffs for specific performance of the agreement, but he did not choose to challenge dismissal of his suit for declaration. Thus, once he admits the fate of his suit, challenge to the acceptance of suit of the plaintiffs would be hit by principle of res judicata as has been rightly held by the appellate Court while placing reliance upon a decision of this Court in Harjeet Singh and Others v. Mehar Singh, [2010(3) Law Herald (P&H) 2150] : (RSA No.2710 of 1987 decided on 18.3.2010). 19. In view of the above, finding no illegality or infirmity in the judgements and decrees passed by the Courts below, the present appeal is dismissed as no question of law much less substantial question of law arises for determination in this appeal. ---------0.B.S.0------------ ——————————