Punjab-Haryana High Court
Sukhwinder Kaur vs Sandeep Kaur And Ors on 11 November, 2025
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Reserved on: 28.10.2025
Pronounced on: 11.11.2025
RSA-2147-2015(O&M)
Smt. Sukhwinder Kaur
...Appellant(s)
Vs.
Sandeep Kaur & Others
...Respondent(s)
***
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Argued by:- Mr. Vijay Kumar Jindal, Senior Advocate with
Mr. Vijay Veer Singh, Advocate
for the appellant.
Mr. Som Nath Saini, Advocate
Mr. Amit Saini, Advocate
for the respondents.
***
NIDHI GUPTA, J.
Present second appeal has been filed by the defendant against
the concurrent judgments and decrees of the learned Courts below
whereby suit filed by the respondents/plaintiffs for possession by way of
specific performance of Contract of Sale dated 01.07.1999, permanent
injunction, and in the alternate for recovery of Rs.6 lakh, has been decreed
by both the Courts below.
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2. To correctly appreciate the dispute between the parties, the
following family pedigree table reproduced hereinbelow, shall be useful: -
3. Brief facts of the case as pleaded in the plaint are that the
defendant had agreed to sell the suit property to Dilbagh Singh vide
Contract of Sale dated 01.07.1999. It was pleaded that Dilbagh Singh had
died on 04.06.2002 leaving behind his legal heirs/plaintiffs. As such, the
plaintiffs were legally entitled to get the Contract of Sale enforced in their
favour. It was pleaded that intention of the defendant had become mala
fide and instead of getting Sale Deed executed in favour of the plaintiffs,
she was threatening to alienate, transfer the land in dispute to some other
person. As such, present suit was filed on 23.07.2002.
4. Upon notice, the defendant had filed written statement
resisting the suit by stating that she is owner in possession of the suit land
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measuring 12 bighas 10 biswas. Vide Agreement to Sell dated 01.07.1999,
her brother Prithi Singh had agreed to purchase the said land from her for
total sale consideration of Rs.6 lakh on behalf of his son Dilbagh Singh. Rs.3
lakh was paid as earnest money by Prithi Singh to the defendant at the time
of execution of Agreement to Sell. However, subsequently, the said
Agreement was cancelled between defendant and Prithi Singh by way of
Writing dated 17.11.1999, vide which Prithi Singh had also received back
the earnest amount of Rs.3 lakh from her, in presence of attesting witnesses.
The writing regarding the cancellation of Agreement to Sell dated
01.07.1999 is typed on the back of first page of the Agreement at the
instance of Prithi Singh and defendant; contents of which were read over
to both of them by the Typist and which were stated to be true and correct
by both; whereafter, they had put their respective signatures in Punjabi in
the presence of attesting witnesses Mewa Singh and Kartar Singh, who had
also affixed their signatures upon the said Writing dated 17.11.1999.
Accordingly, dismissal of the suit was prayed for.
5. On the basis of pleadings of the parties, following issues were
framed on 16.05.2011:-
"1. Whether the plaintiffs are entitled for specific performance
of contract of sale as prayed for?OPP.
2. Whether the plaintiffs are entitled for permanent injunction
as prayed for?OPP.
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3. Whether the plaintiffs are ready and willing to perform their
part of contact or in the alternative entitled for recovery of Rs.
6acs as prayed for? OPP.
4. Whether the plaintiffs have not come to the court with clean
hands and have suppressed the material facts from the
court?OPD.
5. Whether the plaintiffs have no locus standi to file the present
suit?OPD.
6. Whether the suit of the plaintiffs is time barred?OPD.
7. Whether the plaintiffs have no cause of action to file the
present suit?OPD.
8. Relief"
6. Vide judgment and decree dated 11.02.2012, learned Civil
Judge (Junior Division), Rajpura had decreed the suit of the plaintiff with
costs "for possession by way of specific performance of contract of sale
dated 1.7.1999 regarding the land measuring 12 bighas 10 biswas as more
fully described in the head note of the plaint situated within the revenue
estate of village Khaspur Tehsil Rajpura, District Patiala. The defendant is
directed to get the sale deed executed in favour of the plaintiffs after
receiving balance sale consideration and to hand over the vacant possession
of the property in dispute to the plaintiffs failing which the plaintiffs shall
be at liberty to proceed as per law. The suit of the plaintiffs is further
decreed for permanent injunction restraining the defendants from
alienating, transferring or otherwise encumbering the land in dispute in any
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manner...". The appeal filed by the defendant was dismissed by the learned
Additional District Judge, Patiala vide judgment and decree dated
03.12.2014. Hence, present second appeal by the defendant.
7. It is inter alia submitted by learned Senior Counsel for the
appellant/defendant that it is admitted fact on record that Prithi Singh had
entered into Agreement to Sell on behalf of his son Dilbagh Singh.
Admittedly, the said Agreement does not even bear the signatures of
Dilbagh Singh and carries the signature of Prithi Singh. Admittedly, it was
Prithi Singh who had paid the earnest money of Rs.3 lakh. Thus, for all
intents and purposes, it was an Agreement/understanding between the
sister and brother/ defendant and Prithi Singh respectively; and Dilbagh
Singh had nothing to do with the same. However, the Courts below had
decreed the suit of the plaintiff primarily on the ground that Prithi Singh
was not authorised to cancel the Agreement to Sell as Dilbagh
Singh/vendee had not authorised Prithi Singh to do so. It is argued that this
reasoning is incorrect as Dilbagh Singh had never paid the earnest money
of Rs.3 lakh to the defendant nor he was present at the time of execution
of Agreement to Sell dated 01.07.1999. Plaintiff-Respondent No.4/widow
of Dilbagh Singh was well aware of the fact that Agreement to Sell already
stood cancelled in view of the Writing dated 17.11.1999; and pursuant to
which Prithi Singh had even received back the earnest amount of Rs.3 lakh
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in cash from the appellant on 17.11.1999 itself. It is submitted that
therefore there was no occasion or ground for the plaintiffs to seek
enforcement of the Agreement.
8. Ld. Senior Counsel further submits that suit of the plaintiffs
could not have been decree also on the ground that they had failed to prove
their readiness and willingness to perform the agreement. It is submitted
that much reliance has been placed upon the Affidavit of Attendance of
Dilbagh Singh in the Tehsil Office on target date of 20.7.1999. However,
admittedly, the original of the said Affidavit has not been produced by the
plaintiffs. Only a photocopy was produced which cannot be taken into
evidence. Even no application was moved by the plaintiffs for leading
secondary evidence.
9. It is further argued that the Courts below have wrongly and
illegally held that since deceased Dilbagh Singh has not given General
Power of Attorney to his father Prithi Singh, therefore, in that situation,
Prithi Singh cannot cancel the Agreement to Sell. The Ld. Courts below
while recording the above said finding fell in error because the said Dilbagh
Singh has not even signed the agreement to sell Ex.P-7. His father has
signed on his behalf as Dilbagh Singh was in Dubai at that time and similarly
the agreement to sell Ex.P-7 was cancelled by Prithi Singh with the consent
of Dilbagh Singh. This factum was also proved from the behaviour of
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Dilbagh Singh because as per the agreement to sell Ex.P-7 the sale deed was
to be executed on or before 20.07.1999 and Dilbagh Singh remained alive
till 04.06.2002 but he did not file any suit for specific performance till 2
years 10 months and 14 days because the appellant is the real aunt of
Dilbagh Singh and he ( Dilbagh Singh) had cancelled the agreement to sell
Ex.P-7 through his father and accepted the earnest money. As such he had
not filed any suit but later on his brother Trilochan Singh with bad intention
and with a view to grab the property of the appellant filed the present suit.
But the Ld. Courts below without considering the evidence and
circumstances of the case wrongly and illegally decreed the suit. As such
the findings recorded by the Ld. Courts below are not sustainable in the
eyes of law and is liable to be set aside.
10. It is further submitted that the Ld. Courts below wrongly and
illegally held that the appellant has not pressed issue No. 5 to 7 whereas
the counsel for the appellant has specifically pleaded in the grounds of
appeal and pressed these issues at the time of arguments but the Ld. Courts
below wrongly and illegally observed that the appellant has not pressed
these issues. Moreover, as per the agreement to sell Ex.P-7, the sale deed
was to be executed on or before 20.07.1999 and the present suit has been
filed on 23.07.2002 i.e. after 3 years 3 days. Thus, the suit of the plaintiffs
is time barred. But surprisingly the Ld. Courts below is silent on this vital
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aspect of the case, rather, while deciding issue No.6 regarding limitation,
the Ld. Courts below has simply written that issue No.5 to 8 are not pressed
and no evidence has been led. However, they failed to appreciate that no
special evidence is required as the dates are borne on Ex.P-7 and it is
question of law, which can be decided by the court, even without pleading
to this effect. As such the findings recorded by the Ld. Courts below are
erroneous and arbitrary and are liable to be set aside.
11. Ld. Senior counsel for the appellant further submits that the
Ld. Courts below fell in error while decreeing the suit of the plaintiffs by
relying upon their pleadings as well as evidence because neither the
pleadings nor the evidence of the plaintiffs can be read because initially the
suit was filed by Tarlochan Singh on behalf of Plaintiff Nos. 1 to 3 being legal
guardian and plaintiff No. 4 was impleaded as Proforma Defendant No. 2.
Later on the plaintiff No.4 Smt. Sukhjit Kaur filed an application for
transposing her as plaintiff No.4 and further she made a prayer in the
application that she be allowed to contest the suit on behalf of the minors
being mother and she also levelled allegations against Tarlochan Singh by
saying that his interest is against the interest of the minors. Her application
was allowed, and she was impleaded as plaintiff No.4 in the main suit but
she neither signed the pleadings on behalf of the minors nor for herself. As
such there is no pleading on behalf of the minors as well as on behalf of
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plaintiff No.4. The said point was duly argued before the Ld. Courts below
but the Ld. Courts below failed to consider the arguments in the judgments.
12. Learned Senior counsel accordingly prays for setting aside of
the impugned judgments and decrees of the Courts below.
13. Per contra, learned counsel for the respondents/plaintiffs
vehemently opposes the submissions made on behalf of learned Senior
Counsel for the appellant and submits that the arguments now raised by
learned Senior Counsel in respect of limitation etc. are being raised for the
first time before this Court. It is submitted that in any event, the arguments
raised on behalf of the appellant are meritless in view of the fact that the
target date was 20.07.1999, which was a holiday being a Saturday. The Civil
Suit was verified on 20.07.2002. 21.07.2002 was a Sunday. Therefore, suit
was filed on 23.07.2002; and therefore, suit was not time barred. Moreover,
there is no question of Civil Suit being time barred even as per Section 9 of
the Punjab General Clauses Act, 1956.
14. On merits, learned counsel for the respondents submits that
in Paras 4 and 5 of the plaint, the plaintiff has very clearly stated that
Dilbagh Singh was ready and willing to perform the contract. It is for this
reason that he had come to India and had gone to the Sub-Registrar on
20.07.1999. This fact is duly proved from his Affidavit of Attendance
(Ex.P10). It is further clearly stated in Para 4 of the plaint that Dilbagh Singh
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had also brought the remaining amount of sale consideration of Rs.3 lakh
along with him for execution of the Sale Deed and other sundry expenses.
Learned counsel refers to the averments made in Para 5 of the plaint to
submit that Dilbagh Singh had waited in the Office of Sub-Registrar on
20.07.1999 from 9 am to 5 pm and it was the defendant No.1 who had not
turned up. Dilbagh Singh had also got his affidavit prepared to mark his
presence on 20.07.1999, which was got attested from the Executive
Magistrate, Rajpura. It is submitted that therefore, argument of learned
Senior Counsel that the Affidavit of Attendance was merely a photocopy
and could not be taken into evidence, is misplaced as the Affidavit dated
20.07.1999 had been duly attested by the Executive Magistrate, Rajpura. It
is submitted that it has also been stated in the plaint that after the death of
Dilbagh Singh, Tarlochan Singh uncle of the plaintiffs and real brother of
Dilbagh Singh had also been ready and willing to perform the contract and
get the Sale Deed executed in favour of the minor plaintiffs on payment of
balance sale consideration to defendant No.1. Moreover, it was proved on
record that Dilbagh Singh was in India on target date of 20.07.1999 from his
passport (Ex.P11).
15. It is submitted that learned Senior Counsel can raise no
objection to the filing of photocopy of Ex.P10 with the plaint also on the
ground that the original Affidavit of Attendance was in the possession of
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Tarlochan Singh. In this regard, learned counsel refers to the deposition of
Tarlochan Singh wherein he has stated that "I am not aware if original
Affidavit of Attendance is with him." It is contended by learned counsel for
the respondents that accordingly, Tarlochan Singh has not denied that he is
in possession of the original Affidavit of Attendance. It is further submitted
that secondary evidence could not have been led in respect of the Affidavit
of Attendance as the same is not a public document. It is reiterated that
Ex.P10 was with Tarlochan Singh and therefore, attested copy was attached
and no error can be found in the same.
16. It is submitted that Tarlochan Singh in his evidence has further
admitted that defendant had also not come to India after 01.07.1999. It is
submitted that if that was so, then how could the Agreement have been
cancelled in November 1999 in the absence of the defendant. It is argued
that therefore, the appellant cannot plead that plaintiff was not ready and
willing to execute the Agreement as defendant herself was not in India to
execute the Sale Deed. Furthermore, defendant has also been failed to
prove how earnest money was returned. Prithi Singh has failed to prove
sale of land at Shahbad. As such, even the alleged cancellation of
Agreement is put in shadow of doubt.
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17. Learned counsel for the respondents further relies upon the
findings as recorded by the learned trial Court in Paras 9 and 10 of its
judgment dated 11.02.2012 which read as follows:-
"9. Rival contentions of both the sides have been
heard and the case file has been perused with due care and
circumspection. This court is of the considered view that the
plaintiffs have successfully discharged the onus of proving all
these issues in their favour. The agreement to sell Ex.P7 is duly
admitted by the defendants. The facts which are admitted
need not to be proved. Regarding readiness and willingness the
plaintiffs have proved on file Ex.P8 which is the photocopy of
the affidavit regarding marking of attendance in the office of
Executive Magistrate on 20.7.2002. The objection of the
learned counsel for the defendant regarding mode of proof this
document is a photocopy is not maintainable, Since this
document was placed on record by Tarlochan Singh himself.
Tarlochan Singh and Prithi Singh summoned as witnesses in
this case by Sukhjeet Kaur. However, they did not support of the
case of the plaintiffs and were declared hostile. In the opening
lines of his examination in chief PW-1 Tarlochan Singh denied
the fact of having filed this suit on behalf of plaintiffs no. 1 to
3. However, in contradiction to his statement he admitted his
signatures on the power of attorney filed by Advocate H.R.
Agnihotri as Ex. P1. He has also admitted his signatures at
points B to F on Ex.P2 to Ex. P6 respectively. Therefore, the fact
that Tarlochan Singh filed the suit on behalf of minors is
established In his cross-examination by the plaintiffs (since he
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was declared hostile) he has admitted the execution of Ex.P7.
He has identified the signatures of his father Prithi Singh on Ex.
P7. He has also identified the signatures of defendant on Ex.P7.
He has admitted the fact that after the bhog ceremony of
Dilbagh Singh children of Dilbagh Singh never resided with him.
PW-2 Prithi Singh has stated that Dilbagh Singh came to India
in July, 1999. He has further stated that he sold the land
belonging to Tarlochan Singh at village Shahbad in order to pay
the earnest money with respect to Ex.P7. PW-1 has stated that
his father sold his land at village Shahbad to return the earnest
money of Rs. 3lacs in order to cancel Ex.P7.In his further cross-
examination PW-1 denied the fact that Dilbagh Singh came to
India in July, 1999 which is in clear contradiction with the
statement of PW-2. PW-1 also denied his signatures at point A
to F. Had the signatures not been of Tarlochan Singh he would
have left no stone unturned to prove the same by examining
handwriting expert. PW-2 in his cross-examination has
admitted the agreement Ex.P7. However, he has denied the
signatures of his son on Ex.P1 to Ex. P6. He has admitted that
in the year 1999 both his sons used to reside with him jointly.
He has further stated that he purchased two killas of land at
village Shahbad in the name of Dilbagh Singh. On the other
hand, he has stated that he sold land belonging to Tarlochan
Singh at village Shahhad to Pay token money in respect of
agreement Ex.P7 which was executed in favour of Dilbagh
Singh. However, no proof of existence of sale of any land at
village Shahbad has been proved on record. It is also strange
on the part of the father to sell land of one son and keep
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purchasing land in the name of other son without
consideration to whom he had already given land. PW-1 has
deposed that Sukhwinder Kaur never came to meet them after
December 1999. However, PW-2 has deposed that Sukhwinder
Kaur who resides in Canada keeps visiting him. She has visited
him 4-5times after 1.7.1999. However, in the later part of his
statement he admitted that when the case was filed photocopy
of agreement Ex.P8 and copy of affidavit ,Ex.P10 were also
filed. He has admitted the signatures of Sukhwinder Kaur as
Ex.P9. He has admitted the fact that Dilbagh Singh never
executed any power of attorney in his favour during his lifetime.
He has further stated that Ex.P7 was cancelled on 17.11.1999
by mutual understanding.
10. Since Ex.P7 has been duly proved on record
and it is executed in favour of Dilbagh Singh only Dilbagh Singh
had the right to cancel it. Prithi Singh admitted in his cross-
examination that Dilbagh Singh never executed any power of
attorney in his favour. So the writing regarding the cancellation
Ex.D1 has no value in the eyes of law. Moreover, it appears that
it has been executed afterwards in order to deprive the children
of Dilbagh Singh of their rights. Undoubtedly this suit was filed
by Tarlochan Singh as discussed above and when Sukhjeet Kaur
was transposed as the plaintiff in this suit Tarlochan Singh and
Prithi Singh turned hostile. Therefore, they did not support the
case of the plaintiffs. Moreover, it appears that Tarlochan
Singh in connivance with his father Prithi Singh and DW-1
Sukhwinder Kaur had filed this suit with malafide intention.
Regarding readiness and willingness the arguments of the
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learned counsel for the defendant did not hold any weight.
Since this document was filed by Tarlochan Singh along with
the main suit. The original affidavit is presumed to be in his
custody and has been withheld to defeat the rights of the
plaintiffs. From the other oral as well as the documentary
evidence it has also been proved that Dilbagh Singh rang up his
paternal aunt Sukhwinder Kaur regarding Ex.P7 which was to
be executed on 1.7.1999 and then came to India on 16.7.1999
and got marked his attendance in the office of Executive
Magistrate on 20.7.1999 which proves that Dilbagh Singh was
always ready and willing to perform his part of contract. No
proof has been furnished by Tarlochan Singh and Prithi Singh
regarding the sale of any land for payment of earnest money
to Sukhwinder Kaur. Further more, no proof has been furnished
by Sukhwinder Kaur regarding return of money. Moreover, no
proof of any income source has been furnished by Tarlochan
Singh and Prithi Singh as an amount of Rs. 3lacs was
considered to be a very huge long back in the year 1999.
Therefore, it is evident that Dilbagh Singh who had gone to
Dubai to earn money used to send money to his father for
purchasing the land, that is why the land was being purchased
in his name alone. A bare perusal of Ex. P7 reveals that on the
first page there is cutting on line 8. A close perusal of this line
reveals that earlier name of Prithi Singh was mentioned which
was then deleted and name of Dilbagh Singh was written. The
cutting bears the signatures of Sukhwinder Kaur which shows
the clear intention of the parties that the agreement was
executed in favour of Dilbagh Singh as intended to."
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18. Ld. counsel accordingly prays for dismissal of the Appeal.
19. No other argument is made on behalf of the parties.
20. I have heard learned counsel and perused the case file in detail.
I have given my thoughtful consideration to the rival submissions advanced
on behalf of both the parties. I find merit in the submissions advanced on
behalf of the appellant.
21. The ld. Courts will have decreed the suit of the plaintiffs on the
ground that Prithi Singh had no authority to cancel the Agreement in
question, as Dilbag Singh had not executed any Power of Attorney in favour
of Prithi Singh authorising him to do so. However, the said reasoning of the
learned Courts below is patently incorrect in view of the admitted fact that
the Agreement dated 01.07.1999 was entered into between the defendant
and Prithi Singh on behalf of his son Dilbagh Singh, who was resident of
Dubai. Admittedly, the Agreement in question bears the signatures of only
Prithi Singh and not Dilbagh Singh. It is also admitted fact on record that
Dilbagh Singh had executed no Power of Attorney/GPA in favour of Prithi
Singh authorising him to execute the said Agreement on his behalf. This
glaring fact has been totally overlooked by the learned Courts below in
decreeing the suit of the plaintiffs. In this situation, the reasoning of the
learned Courts below that since the Agreement (Ex.P7) was executed in
favour of Dilbagh Singh, "......only Dilbagh Singh had the right to cancel it.
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Prithi Singh admitted in his cross-examination that Dilbagh Singh never
executed any power of attorney in his favour. So the writing regarding the
cancellation Ex.D1 has no value in the eyes of law...", is patently
misconceived and erroneous. It is but trite that as Dilbagh Singh had
executed no GPA authorising Prithi Singh to execute the Agreement,
similarly no GPA was required from Dilbagh Singh to authorise Prithi Singh
to cancel the said Agreement. If the aforesaid reasoning of the Courts below
were to be applied, then the Agreement itself was invalid; as it was
executed by Prithi Singh without GPA from Dilbagh Singh. If Prithi Singh was
authorised to execute the Agreement on behalf Dilbagh Singh without
Power of Attorney in his favour, then Prithi Singh cannot be held to not be
authorised to cancel the said Agreement for lack of General Power of
Attorney. What is cheese for the gander is cheese for the geese.
22. The next argument of the respondents has been that the
readiness and willingness of Dilbagh Singh to perform the Agreement was
proved from his Affidavit of Attendance dated 20.7.1999 Ex.P-10, which was
duly attested by the Executive Magistrate. However, admittedly, the original
of the said Affidavit has not been produced by the plaintiffs. Only a
photocopy has been brought on record. Even no application was moved by
the plaintiffs for secondary evidence. It is established position in law that a
photocopy of a document is not admissible in evidence. The Hon'ble
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Supreme Court in Smt. J. Yashoda v. K. Shobha Rani, (SC) : Law Finder Doc
ID # 128669, held that: -
"A. Evidence Act, Sections 63 and 65 - Secondary evidence -
Photostat copies of original cannot be received as secondary
evidence in terms of Section 63 of Evidence Act."
23. Thus, plaintiffs are unable to prove presence/readiness and
willingness of Dilbag Singh on 20.7.1999.
24. It is reiterated that the Ld. Courts below wrongly and illegally
relied upon Ex. P-10 which is a photocopy of the affidavit regarding marking
of attendance in the office of Executive Magistrate by deceased Dilbagh
Singh on 20.07.1999 and held that the plaintiffs were ready and willing to
perform their part of agreement on the basis of Ex.P-10. These findings of
the Ld. Courts below is not sustainable because firstly the Ex. P-10 is a
photocopy of the affidavit, original of the same was not produced before
the Court. As such the same cannot be read in evidence. Secondly, the
plaintiffs have not sought the permission for proving Ex.P10 by way of
secondary evidence i.e. to prove the photocopy. The failure of the plaintiffs
to file application for secondary evidence in order to prove the Affidavit of
Attendance (Ex.P10) in terms of Sections 65 and 67 of the Evidence Act is
fatal to their case. Thirdly, no witness from the office of Sub Registrar, was
summoned to prove the genuineness of Ex. P-10. As such Ex.P-10 is reduced
to wastepaper, which cannot be read in evidence. It is well settled law that
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mere marking of an exhibit on the document does not dispense with its
proof. The Ld. courts below by ignoring the well settled law have based its
findings of readiness and willingness only on the document Ex.P-10 which
cannot be read in evidence.
25. To prove the readiness and willingness of Dilbagh Singh to
execute the Sale Deed, plaintiffs have also relied upon Ex.P-11 which is a
photocopy of the passport of Dilbagh Singh, to prove that Dilbagh Singh
came to India from Dubai on 20.07.1999. Again, the original of the same
was not produced before the court nor the permission to read the above
said document as secondary evidence was taken from the court. As such
Ex.P-11 also cannot be read in evidence. The plaintiffs failed to prove the
factum that on 20.07.1999, the deceased Dilbagh Singh was present in India.
In such suspicious circumstances the Ld. Courts below wrongly and illegally
held that Dilbagh Singh appeared before the Sub Registrar. This finding of
the Ld. Courts below is wholly erroneous and against the law and facts.
26. In any event, mere presence of Dilbagh Singh in the Tehsil
Office is not sufficient to prove his readiness and willingness to perform the
contract. In this regard, reference is made to a recent judgment of the
Hon'ble Supreme Court in 'R. Shama Naik vs. G. Srinivasiah' 2024 INSC 927,
wherein it is held that to establish readiness and willingness two specific
ingredients are required to be fulfilled: (a) presence in the Tehsil; (b)
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demonstrate availability of funds. In the present case, except for a bald
statement made by the plaintiffs in the plaint to the effect that Dilbagh
Singh was present in the office of the Sub-Registrar on 20.07.1999 with the
balance sale consideration, there is nothing on record to substantiate the
said averments. It has been categorically held by the Hon'ble Supreme
Court in the aforenoted judgment that not just a statement, but concrete
evidence is to be led to prove the availability of the balance sale
consideration. Even the source of the funds has to be disclosed, and the
availability of the funds has to be proved. However, plaintiffs have not
produced even a smidgen of evidence to show that balance sale
consideration was available with Dilbagh Singh on target date. A perusal of
Ex.P10 shows that all that has been stated in the Affidavit by Dilbagh Singh
is that he was present and waiting in the Tehsil Office with the money, and
defendant did not turn up. However, it has nowhere been stated by Dilbagh
Singh as to how much money he was waiting with and what was the source
of the said money and what was the mode of payment of the balance sale
consideration. Even in the plaint mere averment to this effect has been
made, which is not sufficient as per law. Even otherwise, the said averment
in the plaint has been made by the plaintiffs on behalf of Dilbagh Singh; and
not by Dilbagh Singh himself. As such, the said averment cannot be relied
upon; especially in the absence of any proof to this effect. Plaintiffs have
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utterly failed to prove the readiness and willingness of Dilbagh Singh to
perform the Agreement. As such, the courts below were in error in
decreeing the suit on the ground that plaintiffs were ready and willing.
27. Furthermore, the Courts have utterly ignored the fact that the
Agreement stood cancelled between Prithi Singh and the defendant vide
Writing dated 17.11.1999 (Ex.P9). A perusal of the impugned judgments
and decrees shows that the learned Courts below have totally failed to deal
with the issue of cancellation of the Agreement vide writing dated
17.11.1999. The Courts below have failed to consider that it has nowhere
been denied by the plaintiffs that they were not aware of the said Writing.
The Courts below have failed to consider that despite the fact that the
Agreement stood cancelled on 17.11.1999, Dilbagh Singh had not filed any
suit for specific performance till his death on 04.06.2002. The instant suit
has been filed by the LRs of Dilbagh Singh on 23.07.2002 after his death on
04.06.2002. These were all important factors which had to be considered
before decreeing the suit.
28. As regards the issue of limitation, the learned trial Court had
duly framed issue No.6 in respect of limitation which reads as follows:-
"6. Whether the suit of the plaintiffs is time barred?OPD."
29. The findings of the learned trial Court in respect of Issue no.6
are in Para 13 of its judgment dated 11.02.2012, which reads as follows:-
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"13. Onus to prove these issues were upon the defendant.
Neither it led any evidence in support of these issues nor was
pressed at the time of arguments. Hence these issues are also
decided in favour of the plaintiff and against the defendant."
30. However, the said reason is tenuous as strictly speaking, no
evidence was required in the present case to prove that suit is barred by
limitation; as it is very clear that since suit is filed on 23.07.2002 i.e. 3 years
3 days after the target date of 20.07.1999. As pointed out by learned Senior
Counsel for the appellant, the dates speak for themselves. Argument of the
plaintiffs that 20.7.2002 being Saturday and 21.7.2002 being Sunday, suit
was filed on 23.7.2002, is liable to be rejected as it is also admitted that suit
was verified by the plaintiffs on 20.7.2002. In this regard, reference need
also be made to judgment of a Coordinate Bench of this Court in 'Sant Ram
vs. Brij Mohan Kaura and another' Law Finder Doc Id # 120449, wherein it
is held that if the suit is filed after a long unexplained delay, even if the suit
was filed within limitation, the Court will consider its effect and may grant
alternate relief of refund of earnest money.
31. The Courts below have further held that the Agreement to Sell
(Ex.P7) stood duly proved from the admission made by the defendant to
the effect that the said Agreement bore her signatures. However, in this
regard, no adverse inference could have been drawn against the defendant
as it is no one's case that there was no Agreement. At no stage has the
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defendant denied the Agreement. However, mere admission of the
Agreement would not vest in the plaintiffs a right to get the same enforced,
as the attendant circumstances noted herein, have to be taken into account.
32. It is also to be noted that originally, the Civil Suit was filed only
by the minor plaintiffs no.1 to 3/children of Dilbagh Singh under the
guardianship of Tarlochan Singh son of Prithi Singh/paternal uncle of the
plaintiffs; and Sukhjeet Kaur widow of Dilbagh Singh was arrayed as pro-
forma defendant No.2 in the Civil Suit. Subsequently, Sukhjeet Kaur had got
herself transposed as plaintiff No.4. It is intriguing to note that in this regard,
the learned trial Court has blown hot and cold in the same breath. In Para
10 of the impugned judgment dated 11.02.2012, the learned trial Court has
recorded that "...Moreover, it appears that Tarlochan Singh in connivance
with his father Prithi Singh and DW-1 Sukhwinder Kaur had filed this suit
with malafide intention. Regarding readiness and willingness the
arguments of the learned counsel for the defendant did not hold any weight.
Since this document was filed by Tarlochan Singh along with the main suit.
The original affidavit is presumed to be in his custody and has been withheld
to defeat the rights of the plaintiffs...". Therefore, on the one hand, the trial
court is stating that Tarlochan Singh had filed the suit with malafide
intention in connivance with his father Prithi Singh in order to get the
Agreement executed; and simultaneously it is stating that the original
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affidavit of Attendance was retained by Tarlochan Singh to defeat the rights
of the plaintiffs. It is but trite that in case the original Affidavit of Attendance
was in the possession of Tarlochan Singh then why would he not attach the
same with the Civil Suit since as, as already stated by the plaintiffs,
Tarlochan Singh had himself attached the photocopy of the Affidavit of
Attendance. On the other hand, it is also being stated on behalf of the
plaintiffs that suit was filed at the back of Sukhjeet Kaur/plaintiff No.4. On
the face of it, the said findings are contradictory. However, all the said
findings have been upheld by the learned First Appellate Court without
demur and without recognising or considering the inherent contradiction
in the same. From the above, it is also patent that the impugned judgments
are based on conjectures, surmises, and presumptions.
33. The argument of the ld. counsel for the respondent that
Tarlochan Singh has stated that defendant did not come to India after
01.07.1999 and therefore, how could Agreement had been cancelled on
17.11.1999 is also factually incorrect as the trial Court in Para 9 of its
judgment dated 11.02.2012 has recorded that PW1/Tarlochan Singh "has
deposed that Sukhwinder Kaur never came to meet them after December
1999...". Therefore, Tarlochan Singh has deposed that defendant did not
meet him after December 1999, and not after July 1999. Moreover, trial
Court has also recorded in the said Para 9 of its judgment that as per PW2
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Prithi Singh, Sukhwinder Kaur who resides in Canada keeps visiting him and
that she had visited him 4-5 times after 01.07.1999. Thus, it is proved that
defendant was present to get the Agreement cancelled on 17.11.1999.
34. Accordingly, in the facts and circumstances of the present case,
reference may be made to the following case law: -
35. The judgments of the Hon'ble Supreme Court in Ashok
Dulichand v. Madhavlal Dube, (SC) : Law Finder Doc ID # 106616; and
Zarina Siddiqui v. A. Ramalingam alias R. Amarnathan (SC) : Law Finder
Doc ID # 630062, wherein it is held that: -
"A. Specific Relief Act, 1963, Section 20 - Agreement for sale of
property for L 40,000/- - Suit for Specific Performance filed in
the year 1980 - Suit remained pending in different Court and
ended in favour of vendee (Plaintiff) in the year 2014 and
Supreme Court passed a decree of Specific performance in
favour of plaintiff - During long years prices of property
escalated - Considering the phenomenal increase in price
during the period the matter remained pending in different
courts, plaintiff to pay a sum of L 15 lakhs in addition to
amount already paid ( L 56,000/-).
Xxx
C. Evidence Act, 1872, Sections 63 and 66 - Xerox copy of
document - Proof of - Defendant executed power of attorney in
favour of his brother, but not producing the original in court -
Plaintiff producing xerox copy of the same - Defendant
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admitting his signatures on the power of attorney - No further
proof is required to prove the same - Held :-
(i) When the xerox copy of power of attorney produced by the
plaintiff in evidence and the signature and the contents of the
said power of attorney were admitted by the defendant, there
was no question of proving the said document as required
under the Evidence Act.
Xxx
25. It is well settled that remedy for specific performance is an
equitable remedy. The Court while granting decree of specific
performance exercises its discretionary jurisdiction. Section 20
of the Specific Relief Act specifically provides that Court's
discretion to grant decree of specific performance is
discretionary but not arbitrary. Discretion must be exercised in
accordance with sound and reasonable judicial principles.
Xxx
33. Similarly, in the case of K.S. Vidyanadam (supra), this Court
on facts found that there was a total lapse and negligence for
a period of more than 2 years from the side of the plaintiff in
taking any step to perform his part of contract under the
agreement and there was gross violation of the terms of the
agreement which required him to pay the balance, purchase
the stamp paper and then seek for execution of the sale deed.
Further the delay was coupled with substantial rise in price,
which brought about a situation where it would not be
equitable to give the relief of specific performance to the
plaintiff. With due respect, this decision is also not applicable
in the facts of the present case."
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36. A judgment of the Hon'ble Supreme Court in Saradamani
Kandappan v. S. Rajalakshmi (SC) : Law Finder Doc ID # 267028, wherein it
is held as under:-
"28. Till the issue is considered in an appropriate case, we can
only reiterate what has been suggested in K.S. Vidyanadam
(supra) :
(i) Courts, while exercising discretion in suits for specific
performance, should bear in mind that when the parties
prescribe a time/period, for taking certain steps or for
completion of the transaction, that must have some
significance and therefore time/period prescribed cannot be
ignored.
(ii) Courts will apply greater scrutiny and strictness when
considering whether the purchaser was 'ready and willing' to
perform his part of the contract.
(iii) Every suit for specific performance need not be decreed
merely because it is filed within the period of limitation by
ignoring the time- limits stipulated in the agreement. Courts
will also 'frown' upon suits which are not filed immediately
after the breach/refusal. The fact that limitation is three years
does not mean a purchaser can wait for 1 or 2 years to file a
suit and obtain specific performance. The three year period is
intended to assist purchasers in special cases, as for example,
where the major part of the consideration has been paid to the
vendor and possession has been delivered in part performance,
where equity shifts in favour of the purchaser."
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37. Reliance may also be placed upon another judgment of the
Hon'ble Supreme Court in Satya Jain (D) Thr. Lrs. v. Anis Ahmed Rushdie
(D) Thr. Lrs. (SC) : Law Finder Doc ID # 405034, wherein it is held as under:-
"25. The principles of law on the basis of which the readiness
and willingness of the plaintiff in a suit for specific performance
is to be judged finds an elaborate enumeration in a recent
decision of this Court in J.P. Builders and another v. A.
Ramadas Rao and another, 2011(1) R.C.R.(Civil) 604 : 2011(1)
R.A.J. 88 : (2011)1 SCC 429. In the said decision several earlier
cases i.e. in R.C. Chandiok v. Chuni Lal Sabharwal, (1970)3 SCC
140, N.P. Thirugnanam vs. Dr. R. Jagan Mohan Rao, 1995(2)
R.C.R.(Rent) 647: 1995(3) R.R.R. 190 : (1995)5 SCC 115 and
P.D' Souza v. Shondrilo Naidu, 2004(3) R.C.R. (Civil) 668 :
(2004)6 SCC 649 have been noticed. To sum up, no straitjacket
formula can be laid down and the test of readiness and
willingness of the plaintiff would depend on his overall conduct
i;e. prior and subsequent to the filing of the suit which has also
to be viewed in the light of the conduct of the defendant.
Having considered the matter in the above perspective we are
left with no doubt whatsoever that in the present case the
Plaintiff No. 1 was, at all times, ready and willing to perform
his part of the contract. On the contrary it is the defendant who
had defaulted in the execution of the sale document. The
insistence of the defendant on further payments by the plaintiff
directly to him and not to the Income Tax authorities as agreed
upon was not at all justified and no blame can be attributed to
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the plaintiff for not complying with the said demand(s) of the
defendant."
38. Reliance may also be placed upon judgment of Hon'ble
Supreme Court in Jaswinder Kaur v. Gurmeet Singh, (SC) : Law Finder Doc
ID # 853012, wherein it is held as under:-
"12...The trite legal position is this that reasons of trial court
and first appellate court have to be considered including
evidence actively without that judgment of reversal cannot be
passed in second appeal. It was incumbent upon the High Court
to consider legality of the finding of non-readiness and
willingness of plaintiffs which is of sine qua non for passing
decree in a suit for specific performance in part or as a whole.
However, High Court could not have simpliciter inferred
readiness and willingness by making passing observation that
it has to be seen in the facts and circumstances of the case. No
positive finding had been recorded by the High Court with
respect to readiness and willingness of the plaintiffs merely by
making payment of part consideration it could not have
inferred. In our opinion, no readiness and willingness could
have been inferred even if it is assumed that High Court by
aforesaid passing observation intended to hold that the
plaintiffs were ready to perform their part by making payment
of part consideration on 31.1.1990, readiness and willingness
has to be seen in the context of the entire agreement not with
respect to portion of contract. Plaintiffs had stated that they
had borrowed the amount but had failed to produce the
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accounts indicating that in fact money was borrowed as stated
by the plaintiff for effecting the purchase."
39. Reliance may further be placed upon judgment of Allahabad
High Court in Wasim Ahmad v. Hajit Shamsuddin (Allahabad) : Law Finder
Doc ID # 340082, wherein it is held as under:-
"12. Even if everything stated by the plaintiffs is taken to be
correct, still discretionary relief of specific performance cannot
be granted particularly in view of the inordinate delay in filing
suit (even if the suit is held to be within time)."
40. Thus, in view of the discussion above, keeping in mind the
above noted facts, and the legal position, the present Second Appeal is
allowed. The impugned judgments and decrees of the learned Courts
below are set aside.
41. Pending application(s) if any also stand(s) disposed of.
11.11.2025 (Nidhi Gupta)
Sunena Judge
Whether speaking/reasoned: Yes/No
Whether reportable: Yes
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