Punjab-Haryana High Court
Om Parkash vs Satish Kumar on 13 July, 2022
101
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-4585-2019 (O&M)
Reserved on : 06.07.2022
Date of decision : 13.07.2022
Om Parkash .....Appellant
versus
Satish Kumar .....Respondent
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Rao Ajender Singh, Advocate for the appellant.
ALKA SARIN, J.
CM-13032-C-2019
This is an application for condonation of delay of 342 days in
refiling the appeal.
For the reasons stated in the application, delay of 342 days in
refiling the appeal is condoned.
CM stands disposed off.
RSA-4585-2019
The present regular second appeal has been preferred by the
defendant-appellant against the judgments and decrees passed by both the
Courts below decreeing the suit of the plaintiff-respondent for specific
performance.
Brief facts relevant to the present lis are that the plaintiff-
respondent filed a civil suit for specific performance of agreement to sell
dated 08.06.2011 whereby the defendant-appellant agreed to sell the suit
YOGESH SHARMA
2022.07.13 18:07
I attest to the accuracy and
authenticity of this order/judgment.
Chandigarh
land, as detailed in the plaint, for a consideration of Rs.5,10,000/-. As per the
plaintiff-respondent, an amount of Rs.4,20,000/- was paid in cash to the
defendant-appellant at the time of execution of the agreement to sell while
the balance amount of Rs.90,000/- was to be paid at the time of execution
and registration of sale deed. The date for execution of the sale deed was
fixed as 12.07.2011. It was averred that on the date fixed the plaintiff-
respondent remained present outside the office of Sub-Registrar, Mandi
Ateli throughout the day with cash to pay the balance sale consideration and
meet other expenses but the defendant-appellant did not turn up. The
plaintiff-respondent thereafter got a legal notice dated 06.08.2011 served on
the defendant-appellant but the defendant-appellant failed to perform his part
of the contract.
The suit was contested by the defendant-appellant who raised
certain preliminary objections. On merits, the defendant-appellant disputed
the execution of the agreement to sell as well as payment of Rs.4,20,000/- by
the plaintiff-respondent and submitted that the plaintiff-respondent had
obtained his signatures on some blank stamp papers under the pretext of
obtaining a loan from the bank which stamp papers were misused to forge
the agreement to sell.
The Trial Court framed the following issues:
1. Whether defendant agreed to sell the suit property
to plaintiff for total sale consideration of
Rs.5,10,000/- and executed agreement to sell on
dated 08.06.2011 ? OPP
YOGESH SHARMA
2022.07.13 18:07
I attest to the accuracy and
authenticity of this order/judgment.
Chandigarh
2. Whether plaintiff has paid earnest money of
Rs.4,20,000/- to the defendant on 08.06.2011 and
sale deed was to be executed on 12.07.2011 ? OPP
3. Whether plaintiff was ready and willing to get
executed the sale deed from the defendant ? OPP
4. If the above-said issues are to be proved, whether
the plaintiff is entitled for the decree of possession
and for specific performance of contract along with
possession of the suit property? OPP
5. Whether plaintiff has filed false and frivolous suit?
OPD
6. Whether the suit of the plaintiff is not
maintainable? OPD
7. Relief.
The Trial Court, vide judgment and decree dated 14.07.2015,
decreed the suit of the plaintiff-respondent directing the defendant-appellant
to execute the sale deed and deliver possession of the suit land in favour of
the plaintiff-respondent within a period of three months on receiving the
residual sale consideration. Aggrieved by the said judgment and decree
passed by the Trial Court, an appeal was preferred by the defendant-
appellant which was, however, dismissed vide judgement and decree dated
23.04.2018. Hence, the present regular second appeal.
Learned counsel for the defendant-appellant has contended that
the Courts below have erred in non-suiting him and in decreeing the suit of
the plaintiff-respondent. According to counsel, the Courts below did not
appreciate the pleadings and evidence on the record which proved that the
YOGESH SHARMA
2022.07.13 18:07
I attest to the accuracy and
authenticity of this order/judgment.
Chandigarh
agreement to sell was a forged document. It was also contended that the
Courts below have erred in not taking into consideration the earlier
agreements to sell dated 11.11.2009 (Ex.D1) and 14.03.2011 (Ex.D2).
Another contention raised was that the witnesses to the agreement to sell
produced by the plaintiff-respondent had given different details about the
cash currency notes paid to the plaintiff-respondent and, as such, their
testimony was unreliable.
I have heard counsel for the defendant-appellant and perused
the paper-book and the lower court record, which was summoned vide order
dated 06.02.2020.
Both the Courts below have found that the agreement to sell
Ex.P1 was duly proved by the plaintiff-respondent. The witnesses to the
agreement to sell stepped into the witness box as PW3 and PW4 while the
lawyer who drafted the said agreement to sell appeared as PW2. The
deposition of these witnesses proves that the agreement to sell Ex.P1 was
prepared at the instance of the defendant-appellant and who had put his
signatures thereon after receiving an amount of Rs.4,20,000/-. The cross-
examination of these witnesses could not elicit anything credible to
disbelieve their testimonies. The story set-up by the defendant-appellant that
his signatures were obtained on certain blank stamp papers for obtaining a
loan did not cut any ice as he could not prove these assertions. Infact, the
lower Appellate Court held that the defendant-appellant "is a businessman
and being so there is stronger presumption that he would be more careful
than ordinary person at the time of signing any document. Since appellant
has already obtained loan from bank, it is to be taken that he was well
YOGESH SHARMA
2022.07.13 18:07
I attest to the accuracy and
authenticity of this order/judgment.
Chandigarh
aware of the fact that loan from a bank cannot be obtained simply by putting
signatures on a stamp document and that too outside the premises of bank".
Regarding the argument raised by the defendant-appellant that
the agreement to sell is a forged document and is an act of fraud, it may be
noted that fraud has not only to be specifically pleaded but also proved. In
the present case the defendant-appellant failed to establish and prove that
any fraud had been committed by him. No police complaint was lodged or
other steps taken by the defendant-appellant to set aside the agreement to
sell. No doubt that fraud vitiates everything inasmuch as it affects the very
solemnity of the proceedings. However, by now it is the settled law that
fraud has to be pleaded and established by leading cogent evidence. An
ambiguous statement cannot per se make a document fraudulent.
The contention on behalf of the defendant-appellant that the
Courts below have erred in not taking into consideration the earlier
agreements to sell dated 11.11.2009 (Ex.D1) and 14.03.2011 (Ex.D2) is
liable to be rejected as there is no averment in the written statement about
either of these earlier agreements. Even his affidavit Ex.DW1/A produced in
evidence has no mention about these earlier agreements. Evidence, it is well
settled, can only be adduced with reference to matters which are pleaded in a
civil suit and in the absence of an adequate pleading, evidence by itself
cannot supply the deficiency of a pleaded case. Parties are bound by their
pleadings. No evidence beyond the pleadings can be relied upon. The other
contention raised that the witnesses to the agreement to sell produced by the
plaintiff-respondent (PW3 and PW4) had given different details about the
denomination of the currency notes paid by the plaintiff-respondent and, as
such, no reliance could be placed on these witnesses is being noticed to be
YOGESH SHARMA
2022.07.13 18:07
I attest to the accuracy and
authenticity of this order/judgment.
Chandigarh
rejected. The said witnesses were cross-examined after over three years of
signing on the agreement to sell Ex.P1. They stood the test of cross-
examination about the plaintiff-respondent advancing Rs.4,20,000/- to the
defendant-appellant as earnest money at the time of execution of the
agreement to sell. A minor discrepancy about the value of the currency notes
given by the plaintiff-respondent to the defendant-appellant as earnest
money at the time of execution of the agreement to sell three years ago
would not be a factor to disbelieve the testimonies of these witnesses.
No question of law, much less, any substantial question of law
arises in the present case. Both the Courts below have recorded concurrent
findings of fact warranting no interference by this Court.
In view of the above, I do not find any illegality and infirmity in
the judgments and decrees passed by the Courts below. The appeal is,
accordingly, dismissed. Pending applications, if any, also stand disposed off.
Dismissed.
( ALKA SARIN )
13.07.2022 JUDGE
Yogesh Sharma
NOTE : Whether speaking/non-speaking : Speaking
Whether reportable : YES/NO
YOGESH SHARMA
2022.07.13 18:07
I attest to the accuracy and
authenticity of this order/judgment.
Chandigarh
