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2014 DIGILAW 1388 (PNJ)

Darshan Singh v. Dalip Kaur

2014-10-06

ARUN PALLI

body2014
JUDGMENT ARUN PALLI, J. 1. Suit filed by the plaintiff (late Jarnail Singh) was decreed by the trial court vide judgment and decree dated 12.12.2009. Appeal preferred against the said decree failed and was accordingly dismissed by the first appellate court vide judgment and decree dated 21.07.2010. That is how, the defendant is before this court in this regular second appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit. 2. In short, the plaintiff prayed for possession by way of specific performance of the agreement to sell, dated 30.06.1999, and by way of consequential relief a decree for injunction was also prayed for restraining the defendant from alienating the suit property, in any manner. It was pleaded that defendant (Darshan Singh) entered into an agreement to sell, dated 30.06.1999, with the plaintiff qua the suit property i.e. a residential house at Village Rasulra, Tehsil Khanna, District Ludhiana. A sum of Rs. 50,000/- were purportedly paid by way of earnest money and the balance sale consideration was to be paid at the time of execution and registration of the sale-deed. The date first fixed for execution of the sale-deed was 30.06.2000, which was extended to 29.12.2000 by the parties with mutual consent, vide writing dated 28.06.2000. It was maintained that plaintiff was always ready and willing to perform his part of the contract. And he even appeared before the Sub-Registrar, Khanna, but the defendant did not turn up. Thus, the suit. 3. In defence, the defendant denied the very existence and execution of the agreement in question. It was pleaded that no such agreement was executed by him and consequently there was no occasion to receive the earnest money. The agreement to sell, dated 30.06.1999, was purported to be a forged and fabricated document. 4-5. The trial court, on an analysis of the matter in issue and the evidence on record, found that the plaintiff to prove the agreement to sell, dated 30.06.1999, examined PW1 Surjit Singh, PW2 Rajinder Singh, marginal witnesses of the agreement. PW4 Narender Kumar (Deed Writer), who scribed the agreement in question, also deposed unequivocally that on 30.06.1999, defendant executed the agreement to sell in favour of the plaintiff qua the suit property and received a sum of Rs. 50,000/- as earnest money in their presence. PW4 Narender Kumar (Deed Writer), who scribed the agreement in question, also deposed unequivocally that on 30.06.1999, defendant executed the agreement to sell in favour of the plaintiff qua the suit property and received a sum of Rs. 50,000/- as earnest money in their presence. It was also deposed that after the agreement was scribed, the same was read-over and explained to the defendant, who after admitting the contents thereof appended his signatures thereon. Although, the defendant had denied the execution of the agreement to sell and the same was alleged to be a forged document, yet no expert was examined to compare his signatures on the disputed document as well as on the writing, vide which the parties had extended the date fixed for execution of the sale-deed. It was observed that the plaintiff has always been ready and willing to perform his part of the contract. And he even appeared before the Sub-Registrar, Khanna on the stipulated date for execution of the sale-deed along with the balance sale consideration and sworn an affidavit in this regard. The plea that the suit property in question was the only residential house of the defendant and, therefore, a decree for specific performance of the agreement would work great hardship to the defendant, was also rejected. It was observed that the provisions of Section 20 of the Specific Relief Act did not postulate that even if a party fails to perform his part of the contract and contest a litigation on a frivolous plea, yet it could set up a plea of equity. Merely because the value of the property had purportedly increased, was hardly a ground to deny the decree for specific performance of the contract to the plaintiff. Likewise, the inadequacy of sale consideration was no ground to deny the relief of specific performance. In any case, the defendant failed to adduce any evidence to substantiate as to what was the actual value of the property at the time of execution of the agreement. Once the execution of the agreement was proved, the normal rule was/is that the said agreement has to be specifically enforced. Nothing was brought on record, which could dissuade the court to deny a decree for specific performance of the agreement to sell. Accordingly, the suit was decreed. 6. Being aggrieved, an appeal was preferred by the defendant. Once the execution of the agreement was proved, the normal rule was/is that the said agreement has to be specifically enforced. Nothing was brought on record, which could dissuade the court to deny a decree for specific performance of the agreement to sell. Accordingly, the suit was decreed. 6. Being aggrieved, an appeal was preferred by the defendant. First appellate court reviewed the matter in issue, evidence on record and on an analysis thereof, found itself in concurrence with the view drawn by the trial court and the findings recorded in support thereof. Accordingly, the appeal was dismissed. 7. I have heard the learned counsel for the parties and perused the RSA paper book. 8. All what the learned counsel for the defendant contends is that the suit property is the only residential house of the defendant and he is living therein with his family. He further submits that the decree in question, if executed, would cause a great hardship to the defendant and thus he was willing to reasonably compensate the plaintiff. 9. Per contra, learned counsel for the respondent-plaintiff submits that pursuant to an order passed by this court on 10.02.2011, he had sought specific instructions from the plaintiff in this regard. However, the proposed offer was not acceptable to the plaintiff and thus he prays that appeal be decided on merits. It is contended that no plea in terms of provisions of Section 20 of the Specific Relief Act, pleading hardship was ever set out in the written statement. And even if the suit property is the only house of the defendant that could hardly be a ground to deny him the relief of specific performance of the agreement. In support of his submission, reliance is placed upon two decisions of this court in Jarnail Singh and Others vs. Sukhwinder Singh, 2009 (1) PLR 450 and Jai Chand vs. Bag Chand, 2007 (4) PLR 105 . 10. The argument that is being advanced by the learned counsel for the appellant lacks conviction and cannot be countenanced. Plaintiff indeed proved the due and valid execution of the agreement, dated 30.06.1999. Both the marginal witnesses of the agreement in question (PW1 and PW2) were examined in this regard. 10. The argument that is being advanced by the learned counsel for the appellant lacks conviction and cannot be countenanced. Plaintiff indeed proved the due and valid execution of the agreement, dated 30.06.1999. Both the marginal witnesses of the agreement in question (PW1 and PW2) were examined in this regard. So much so, PW4 Narender Kumar (Deed Writer) deposed in no uncertain terms that the agreement in question was scribed by him and the same was duly explained and read out to the defendant, who after admitting the contents thereof appended his signatures thereon. Further, defendant had received a sum of Rs. 50,000/- by way of earnest money in their presence. The specific case set out by the defendant was that the agreement in question, dated 30.06.1999, was a forged and fabricated document and the same was never executed by the defendant. It was maintained that the same does not bear his signatures or thumb impression. An issue was formally framed in this regard and the onus was placed upon the defendant to prove the same. However, the defendant failed to substantiate that the agreement, dated 30.06.1999, was indeed a forged and fabricated document. Defendant did not even examine any expert to compare the disputed signatures on the agreement with his standard signatures. That being so, defendant could not turn around and plead hardship. At any rate, no such plea in terms of provisions of Section 20(2)(b) of the Specific Relief Act was set up in defence. Quite naturally, as the defendant out-rightly denied the execution of the agreement in question and the same was purported to be a forged document. Still further, even when the defendant entered into an agreement to sell and received a sum of Rs. 50,000/- by way of earnest money, he was alive to the fact that the suit property was his only residential house. Thus, he cannot maintain that he could not forsee the purported hardship. That being so, the argument being advanced by the learned counsel for the appellant is of no consequence in law. Therefore, discretion exercised by the court in granting a decree for specific performance to the plaintiff is ex facie judiciously exercised and thus does not warrant any interference. 11. That being so, the argument being advanced by the learned counsel for the appellant is of no consequence in law. Therefore, discretion exercised by the court in granting a decree for specific performance to the plaintiff is ex facie judiciously exercised and thus does not warrant any interference. 11. In the wake of the position as set out above, there hardly exists any ground, least plausible in law, to interfere with the decree being assailed in the present appeal. No question of law, much less any substantial question of law, arises for consideration. Appeal being devoid of merit is, accordingly, dismissed. Appeal dismissed.