Paramjit Singh Patwalia, J.@mdashThis regular second appeal of defendant No. 1 is directed against the judgment and decree dated 24.11.2008 passed by learned Additional Civil Judge (Sr. Divn.), Karnal whereby suit for possession by way of specific performance and declaration filed by respondent No. 1- plaintiff has been decreed and against the judgment and decree dated 15.09.2009 passed by learned Additional District Judge, Karnal whereby appeal preferred by appellant has been dismissed. For convenience sake, hereinafter, reference to parties is being made as per their status in civil suit.
2. The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that plaintiff filed a suit for possession by way of specific performance of agreement to sell with the averments that on 14.11.2000, defendant No. 1 had executed an agreement to sell the suit land to the plaintiff on payment of sale consideration of Rs. 2,25,000/- per acre and he had paid him Rs. 2,70,000/- as earnest money at that time. The sale deed was to be executed on or before 09.10.2001 and prior thereto, defendant No. 1 was liable to repay the loan availed by him creating a charge over the suit property, but despite repeated requests, defendant No. 1 did not clear the said loan nor he was present before the Sub Registrar, Karnal on 09.10.2001 i.e. date fixed for execution of the sale deed. It was further pleaded that the plaintiff remained present in the office of Sub Registrar along with registration charges etc. and got marked his presence. The plaintiff was/is and has always been ready and willing to perform his part of the agreement. However, defendant No. 1 executed sale deed No. 7135 dated 12.12.2001 with regard to land measuring 16 kanals in favour of defendant No. 2 on the basis of jamabandi for the year 1996-97 claiming himself to be the owner of 1/6th share in land measuring 172 kanals in village Mehanmati, but share of defendant No. 1 in joint holdings was only 28 kanals 13 marlas out of which he had sold away 16 kanals to defendant No. 2. Defendant No. 1 was left with only 12 kanals 13 marlas which was insufficient to execute the sale deed in pursuance of the agreement in question. The plaintiff served notices dated 10.12.2002 and 22.12.2003 upon defendant No. 1 to get the sale deed executed and registered in his favour on the basis of agreement to sell dated 14.11.2000, but to no avail. Hence by filing the suit, a prayer was made for specific performance of the agreement to sell dated 14.11.2000 and for declaration that sale deed dated 12.12.2001 executed by defendant No. 1 in favour of defendant No. 2 is illegal and the same be set aside.
3. Upon notice, defendant No. 1 filed written statement and resisted the suit taking preliminary objections of locus standi, cause of action, limitation and fraud. It was pleaded that defendant No. 1 had borrowed a sum of Rs. 50,000/- from the plaintiff for his domestic requirements on 20.10.1999 and in lieu of that, the plaintiff had obtained signatures of defendant No. 1 on blank papers and also in the register of petition writer as security of borrowed amount. On receipt of legal notice dated 02.11.2000, defendant No. 1 came to know that the alleged agreement is a forged and manipulated document and on that day, defendant No. 1 had paid Rs. 25,000/- to the plaintiff in the presence of Amrik Singh son of Ajaib Singh. Thereafter, the matter was hushed up and remaining amount of Rs. 25,000/- was to be paid within six months from 02.11.2000. It was further pleaded that on 29.11.2001, defendant No. 1 had received another notice and came to know about the alleged agreement to sell dated 14.11.2000 which was created after receiving the remaining amount of Rs. 25,000/- in the month of November, 2001 and the plaintiff had agreed to return the blank papers and stamps etc. duly signed by him, after receiving remaining amount of Rs. 25,000/- but the plaintiff did not return the same and kept on postponing the matter on one pretext or the other. It was further pleaded that the plaintiff was running a business of commission agency under the name and style of M/s. Banarsi Dass Rakesh Kumar, Janta Grain Market, Karnal and defendant No. 1 was his client. By taking undue advantage of relationship between plaintiff and defendant No. 1, signatures of defendant No. 1 were taken on blank papers and various notices dated 02.11.2000, 29.11.2001, 10.10.2002 and 22.12.2003 were issued. Other averments in plaint were denied and dismissal of suit was prayed for.
4. Defendant No. 2 filed his separate written statement and took various preliminary objections including locus standi, mis-joinder and non-joinder of necessary parties, maintainability, concealment of material facts, ad valorem court fee and jurisdiction. It was pleaded that defendant No. 2 is a bona fide purchaser of 16 kanals of land for valuable consideration from defendant No. 1 vide registered sale deed dated 12.12.2001 and now defendant No. 2 is in possession of the same. The averments in plaint were denied and dismissal of suit was prayed for.
Two separate replications were filed reiterating the averments made in plaint and controverting the contents of written statements. In para No. 3 of replication to the written statement of defendant No. 1, it is admitted that plaintiff is running the business of commission agent and defendant No. 1 was his customer.
5. On the basis of pleadings of parties, the Court of first instance framed following issues:
"1. Whether the defendant No. 1 entered into an agreement dated 14.11.2000 for the sale of agricultural land detailed in para No. 2 of the plaint with the plaintiff and received Rs. 2,70,000/- as earnest money at the time of execution of said agreement? OPP
2. Whether the plaintiff is and was ready and willing to perform his part of contract?
3. Whether the plaintiff has no locus standi to file and maintain the present suit? OPD
4. Whether the suit is not maintainable? OPD
5. Whether the suit is time barred? OPD
6. Relief."
6. After appreciating the evidence, the Court of first instance decreed the suit against defendant No. 1 directing him to execute the sale deed in pursuance of agreement to sell dated 14.11.2000 in favour of the plaintiff on payment of balance sale consideration within one month from the date of order, however, sale deed No. 7135 dated 12.12.2001 was ordered to be remained intact. Feeling aggrieved, defendant No. 1 preferred an appeal which has been dismissed by the lower Appellate Court. Hence, this regular second appeal.
7. I have heard learned counsel for the parties and perused the record.
8. Learned counsel for the appellant has referred to substantial questions of law formulated in the grounds of appeal, which read as under:
(i) Whether the judgment and decree dated 15.09.2009 passed by learned Additional District Judge, Karnal and judgment and decree dated 24.11.2008 passed by Additional Civil Judge (Sr. Divn.), Karnal are illegal, void, without jurisdiction and are, therefore, liable to be set aside?
(ii) Whether the findings of the learned courts below are suffering from any apparent perversity on the face of it and being contrary to law and facts on record?
(iii) Whether the impugned judgments and decrees passed by learned courts below do not suffer an apparent illegality and perversity because of ignoring the material piece of evidence have direct impact on the decision of the case?
(iv) Whether the courts below have erred in law while holding that the execution of agreement to sell dated 24.11.2000 has been proved whereas the appellant-defendant has led sufficient evidence to show that the appellant borrowed money from the plaintiff who is a commission agent and the agreement in question has been brought into existence by plaintiff by practicing fraud and manipulation?
9. Learned counsel for the appellant-defendant No. 1 has vehemently contended that relationship of commission agent and dealings of appellant-defendant No. 1 with plaintiff are admitted. Defendant No. 1 is a farmer and plaintiff is a commission agent. Due to said fiduciary relationship, signatures of defendant No. 1 were taken on blank papers which cannot be ignored. Reference has been made to judgment of the Hon''ble Supreme Court in Manohar Lal alias Manohar Singh v. Maya, 2003(2) R.C.R. (Civil) 789 : 2004(2) Punjab Law Reporter 542. Reference to the pleadings has also been made to contend that defendant No. 1 had taken a loan of Rs. 50,000/- from the plaintiff, but the blank papers were got signed from defendant No. 1 for loan which have been converted into an alleged agreement to sell. Learned counsel has further contended that perusal of the agreement (Ex. P-1) indicates that once the considerable amount is paid, nobody would fix the date for execution of the sale deed after about three years. Learned counsel for the appellant-defendant No. 1 has further contended that various notices have been issued which indicate the intention of the plaintiff that agreement was not for specific performance, rather it was got executed as a security for repayment of the loan amount. Learned counsel has further contended that even the agreement (Ex. P-1) does not bear the signatures of defendant No. 1 nor it is on the stamp paper, rather it has been prepared on a plain paper by affixing adhesive stamps which is not in accordance with the law and further the register of the stamp vendor has not been produced. Learned counsel has further contended that suit was filed in the year 2004 i.e. after a period of four years from the date of execution of alleged agreement (Ex. P-1). The suit has been filed after a considerable delay. Every year a notice was issued, but no action was taken in spite of the fact that out of land in question, defendant No. 1 had sold 16 kanals to defendant No. 2. As such, findings of both the courts below are perverse, illegal, based on misreading of evidence and pleadings on record.
10. Per contra, learned counsel for respondent No. 1-plaintiff has contended that there are concurrent findings of fact with regard to execution of agreement to sell (Ex. P-1). In regular second appeal, this Court has limited power and cannot interfere in the concurrent findings of fact recorded by both the courts below. Learned counsel has further contended that mere inter se relationship of plaintiff and defendant No. 1 will not bar the plaintiff to enter into an agreement to sell with defendant No. 1. Defendant No. 1 has himself admitted the receipt of Rs. 50,000/- which clearly indicates that defendant No. 1 had entered into an agreement to sell (Ex. P-1) with the plaintiff and received the earnest money from the plaintiff.
11. Learned counsel for respondent No. 2-defendant No. 2 has contended that respondent No. 2 is a bona fide purchaser for valuable consideration and now defendant No. 1 has sufficient property to execute the alleged agreement to sell (Ex. P-1).
12. I have considered the rival contentions of learned counsel for the parties.
13. On consideration of arguments raised by learned counsel the parties, I find that following substantial questions of law arise for consideration in this appeal:
(i) Whether the plaintiff has failed to lead evidence to prove due execution and validity of agreement to sell (Ex. P-1) and agreement to sell is clouded with suspicious circumstances and even if its contents have been proved on record, what is its probative value?
(ii) Whether plaintiff is entitled to refund of amount with interest which was allegedly paid by him to defendant No. 1?
Answer to question No. (i):
14. There is no dispute to the proposition of law that time is not the essence of contract. However, if the parties agreed to a specified time in the agreement to perform their part of contract, then time is the essence of the contract and the parties shall adhere to the terms of the agreement. It is one of the terms of the agreement to sell (Ex. P-1) that the purchaser could get the sale deed executed upto 09.10.2001 in his name or in the name of any person whom he deems fit and the purchaser will bear the expenses for the sale deed. It is also mentioned in the agreement to sell (Ex. P-1) that possession of the land would be given at the time of execution of the sale deed. The plaintiff had given notices dated 02.11.2000 (Mark A), 29.11.2001 (Ex. P-3), 10.10.2002 (Ex. P-7) and 22.12.2003 (Ex. P-13), however, suit was filed on 11.09.2004 i.e. after a period of approximately four years of execution of agreement (Ex. P-1) and three years of date fixed for execution of sale deed.
In
"19. It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language.
20. We will now refer to the decisions of this Court. In
"...Section 55 of the Contract Act which deals with the consequence of failure to perform an executory contract at or before the stipulated time provides by the first paragraph when a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the opinion of the promise if the intention of the parties was that time should be of the essence of the contract. It is not merely because of specification of time at or before which the thing to be done under the contract is promised to be done and default in compliance therewith, that the other party may avoid the contract. Such an option arises only if it is intended by the parties that time is of the essence of the contract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable: it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence. In
22. In Hind Construction Contractors case quoting Halsbury''s Laws of England, this Court observed at pages 1154-55 as under:
"In the latest 4th edn. of Halsbury''s Laws of England in regard to building and engineering contracts the statement of law is to be found in Vol. 4, Para. 1179, which runs thus:
"1179. Where time is of the essence of the contract. - The expression time is of the essence means that a breach of the condition as to the time for performance will entitle the inconstant party to consider the breach as a repudiation of the contract. Exceptionally, the completion of the work by a specified date may be a condition precedent to the contractor''s right to claim payment. The parties may expressly provide that time is of the essence of the contract and where there is power to determine the contract on a failure to complete by the specified date, the stipulation as to time will be fundamental. Other provisions of the contract may, on the construction of the contract, exclude an inference that the completion of the works by a particular date is fundamental; time is not of the essence where sum is payable for each week that the work remains incomplete after the date fixed, nor where the parties contemplate a postponement of completion.
Where time has not been mad of the essence of the contract or, by reason of waiver, the time fixed has ceased to be applicable, the employer may be notice fix a reasonable time for the completion of the work and dismiss the contractor on a failure to complete by the date so fixed."
It will be clear from the aforesaid statement of law that even where the parties have expressly provided that time of the essence of the contract such a stipulation will have to be read along with other provisions of the contract and such other provisions may, on construction of the contract, exclude the inference that the completion of the work by a particular date was intended to be fundamental; for instance, if the contract were to include clause providing for extension of time in certain contingencies or for payment of fine or penalty for every day or week the work undertaken remains unfinished on the expiry of the time provided in the contract such clause would be construed as rendering ineffective the express provision relating to the time being of the essence of contract."
15. Thereafter, identical issue arose before the Hon''ble Supreme Court in
"19. The legal principle laid down by this Court in the above case squarely applies to the facts of this case for the following reasons. In the instant case, undisputedly, the plaintiff did not get Agreement of Sale executed by paying the remaining consideration amount to the defendant Nos. 1-4 within the stipulated period of 7 months as agreed upon by him under Clause 6 of the agreement by asking the defendant Nos. 1-4 to get the necessary permission from ULCA and Income Tax Department after paying the layout charges to the concerned authorities for getting the sale deed executed in his favour. The plaintiff has not complied with the condition within the original stipulated period of five months and extended period of two months and even if the delay occurs in getting permission from the authorities, that period was over by July, 1984. It is an undisputed fact that the date of the institution of the original suit was nearly 11 months after expiry of the limitation period stipulated in the agreement to get the sale deed executed in favour of the plaintiff."
16-17. Section 20 of the Specific Relief Act, 1963 clearly states that jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the Court cannot be arbitrary but is to be guided by sound and reasonable judicial principles and capable of correction by a court of appeal. In
18. Further the agreement to sell cannot be said to be duly executed. In this connection, it would be appropriate to refer to the relevant provisions in Punjab Stamp Rules, 1934, as applicable to Haryana.
Rule 28 (xiii) of the said Rules reads as under:--
"(xiii) The vendor shall, with his own hand, write in indelible ink in English or at the time of sale, on the back of every non-judicial or Court-fee impressed stamp which he sells -
(a) serial number;
(b) the date of the sale;
(c) (i) the name, caste or tribe and surname (if any) and residence of the purchaser;
(ii) if the stamp is purchased by any person other than the principal, the said particulars in regard to both the agent and the principle:
(a) if the name to be written is that of an Indian man or unmarried woman, the vendor shall, in addition to the name and other particulars regarding such manor unmarried woman, write the name of his of her father;
(b) if the name is that of an Indian married woman or widow, the vendor shall, in addition to the name and other particulars regarding her, write the name of her husband; and
(c) if the stamp is purchased for any person by a pleader or an advocate as agent, the vendor need only write name and parentage of the principal and where the parentage cannot be conveniently ascertained, brief particulars of the case together with a sufficient description of the agent;
(d) the value of the stamp in full words, and shall affix his dated signature to the endorsement.
He shall at the same time make corresponding entries in his vend register, and shall also invite the purchaser to attest them by his signature or thumb impression, or both, and in the event of the purchaser refusing so to attest the entry of sale, the vendor shall refuse to sell the stamp required and shall cancel any entries made regarding it in his register."
19. Perusal of agreement to sell (Ex. P1) indicates that it does not bear signatures of defendant No. 1 on its backside, who allegedly entered into agreement and does not indicate who actually purchased the stamps. Thus as required by aforesaid Rule, the particulars of purchaser have not been indicated on the backside of paper whereon stamps have been affixed. The register of stamp vendor wherein corresponding entries would have been made and attested by the purchaser, has not been proved on record. If the Ex. P-1 would have been written at the instance of defendant No. 1, then he must have purchased the stamp paper and his signatures should have been on the stamp paper and in the register of stamp vendor. This clearly indicates that Ex. P1 is clouded with suspicious circumstances.
20. Now the question arises whether the document in question has been duly proved on record or not. This is to be seen in the light of statements of witnesses. The contents of Ex. P1 could have been proved only by examining document writer/typist/computer operator who typed it. From above, the only possible conclusion is that attesting witness to document Ex. P1 could not explain conduct of the parties. It is clear from the document Ex. P1, when read in light of the Punjab Stamp Rules, 1934 as applicable to Haryana, that stamp paper had not been purchased by defendant No. 1-Mangat Singh The plaintiff has not examined scribe. If such person would have been examined, he would have revealed the correct position with respect to document in question. The evidence of a person, who saw the document being typed or signatures being affixed, was necessary. Moreover, the agreement (Ex. P-1) is typed on computer and has been executed on a plain paper where adhesive stamps have been affixed. The same is not on a stamp paper. Although, allegedly the stamp paper was issued from the stamp vendor, but the same has not been proved by summoning register of the stamp vendor.
21. Hon''ble Bombay High Court had occasion to deal with such a situation in
"(42) The reason on which the decision of Bhagwati J. is based is not far to seek. The evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court. We, therefore, hold that the attempt to prove the contents of the document by proving the signature or the handwriting of the author thereof is to set at nought the well recognised rule that hearsay evidence cannot be admitted. This question has been discussed by Halsbury at paragraph 533 at p. 294 (Halsbury''s Law of England, 3rd Edition, Vol. 15) under the heading ''Hearsay'' Says Halsbury:
"..........Statement in documents may also be hearsay. So, if A had taken counsel''s opinion before acting, the contents of the opinion would be admissible for the same purpose but not to prove the truth of any statement of fact therein"
In paragraph (534) Halsbury has discussed the reasons for rejection of hearsay evidence and says:
"The reasons advanced for the rejection of hearsay are numerous among them being the irresponsibility of the original declarant the depreciation of truth in the process of repetition the opportunities for fraud which its admission would offer, and the waste of time involved in listening to idle rumour.
The two principal objections, however, appear to be the lack of an oath administered to the originator of the statement, and the absence of opportunity to cross-examine him."
The Advocate General drew our attention to a decision of House of Lords in Maria Sturla v. Filippo Freccia, (1879) 5 A.C. 623. In that case, the report of a committee appointed by a public department in a foreign state was admitted in evidence as a public document. It was, however, held that it was not admissible as evidence of all the facts stated therein. In that case the facts were: The document in question, a report of certain persons called the Ginunta di Marina at Genoa, was sought to be put in evidence for the purpose of proving that person who was formerly consul for the Genoese Republic in London, and the succession to whose daughter, Mrs. Brown, was in question, was a native of Quarto near Genoa and at the time that report was made, aged about forty-five years. The document was tendered for that purpose and for that purpose only.
It was conceded that the report was an authentic public document of the Genoese Government. The statements, however, contained in the report were not based on the evidence of any of the relatives of the consul at Genoa. The information contained therein did not appear to have been received from any member of Mangini''s family. One of the well-recognised exceptions under the English Law of Evidence to the reception of hearsay evidence is the evidence relating to pedigree. The only question, which their Lordships of the House of Lords were considering was, whether the contents of the report fell within the purview of the above exception and their Lordships held that it did not, because the statements contained in the report were not based on the evidence given before the dispute started by any of the members of the deceased''s family. We are not concerned with that part of the decision of the House of Lords in the present case. The point to be noted is that the statements contained in the report were treated as hearsay and since they did not fall within the well-recognised exceptions, they were excluded from evidence. To conclude this part of the discussion, we hold, in the first place, that what has been formally proved is the signature of Abreo and not the writing of the body of the document at Ex. 28 and secondly, that even if the entire document is held formally proved, that does not amount to a proof of the truth of the contents of the document. The only person competent to give evidence on the truthfulness of the contents of the document was Abreo."
Hon''ble Supreme Court in
22. Similar view has been taken by Single Bench of this Court in
"As regards the stand of the appellant that the respondent had agreed to sell the suit property to him at the rate of Rs. 5,00,000/- per acre and after receiving Rs. 20,00,000/- from him had executed an agreement to sell, it may be noticed that the appellant did not care to produce the scribe of the agreement to sell Ex. P1. Only the scribe could have deposed about the contents of the agreement having been read over and explained to the executant. As the appellant withheld best evidence despite it being available, the Courts below were justified in drawing the adverse influence against him. Even otherwise, the agreement in question had not been written by a regular scribe. Had it been so, such a scribe would have made an endorsement in this regard in his register and the same would have ruled out the possibility of agreement in question being ante-dated. The agreement is also not written on regular stamp paper. On the other hand, special adhesive stamps were affixed on a plain paper which were purchased by the appellant and not by the respondent. The appellant also failed to explain as to how he had arranged a huge amount of Rs. 20,00,000/-, said to have been paid as earnest money. Explanation of the appellant that he had not withdrawn the money from the bank or taken the same from the commission agent but it was lying at his house as his father had 12 acres of land, cannot be accepted. Further, the suit land was situated within the jurisdiction of Sub Tehsil Jakhal and the Sub Registrar used to sit at Jakhal, the document is shown to have been executed at Tohana."
Hon''ble Supreme Court in
23. In the light of law laid down by Hon''ble Supreme Court, this Court and other High Courts, I have no option but to conclude that the only person who could prove contents of Ex. P1 and truthfulness of the document was scribe, who has not been examined.
Hon''ble Supreme Court in
"Admissibility of a document is one thing and its probative value quite another - these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight of its probative value may be nil.... Where a report is given by a responsible officer, which is based on evidence of witnesses and documents and has "a flavour in that it is given not merely by an administrative officer but under the authority of a Statute, its probative value would indeed be very high so as to be entitled to great weight. The probative value of documents which, however, ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little."
24. In the present case neither particulars of purchaser have been mentioned on the backside of the plain paper with adhesive stamps nor the register of the stamp vendor containing corresponding entry duly attested by the purchaser by putting signatures or thumb mark, has been brought on record. As per Rule 28 of the Rules, the stamp vendor is required to make corresponding entry in his vend register and ask the purchaser to attest the same by putting signatures or thumb mark and if purchaser refuses to do so the stamp vendor has to refuse sale of the stamp paper to that purchaser and also cancel the entry in his register. Since the stamp vendor register has not been proved on record nor the stamp paper contains the particulars of the purchaser on its backside the alleged agreement to sell becomes doubtful. Situation being so, the document Ex. P1 is essentially surrounded by suspicious circumstances. Reference in this regard may be made to judgment of Hon''ble Supreme Court in
25. In the light of above facts, there is a specific averment by defendant No. 1 that the plaintiff is a commission agent and defendant No. 1 had borrowed some amount, however, did not enter into the agreement, if, at all, such an agreement is there same is the result of fraud and misrepresentation. Normally, the burden is on defendant No. 1 to prove such fraud, misrepresentation etc. but when specific allegations are there then burden is on the plaintiff to prove that document is genuine and is to the knowledge of defendant No. 1. Otherwise also, it is settled principle of law that the person, who claims some right on the basis of document, is required to positively prove the same.
26. Hon''ble Supreme Court in Thiruvengada Pillai v. Navaneethammal & Anr. (supra), has held that when the execution of an unregistered document put forth by the plaintiff was denied by the defendant, the ruling that it was for the defendant to establish that the document was forged or concocted is not a sound proposition. The Courts below proceeded on the basis that it is for the party, who asserts something, to prove that thing; and as defendant No. 1 alleged that the agreement was forged, it was for him to prove it. But the Courts below lost sight of the fact that the party who propounds the document will have to prove it. It was the plaintiff who had come to Court alleging that defendant No. 1 had executed an agreement of sale in his favour. Defendant No. 1 having denied it, the burden was on the plaintiff to prove that defendant No. 1 had executed the agreement and not on defendant No. 1 to prove the negative.
27. Hon''ble Supreme Court in
28. Hon''ble Supreme Court in
29. In view of the discussion above, I am of the considered view that although existence of document has been proved on record but there is no proof of contents of the document as scribe has not been examined. As such document is clouded with suspicious circumstances. Such a document cannot be a ground for grant of discretionary relief of specific performance. Both the Courts below have not considered the material evidence i.e. Ex. P1 in true perspective rather have treated the execution of document proved merely on the ground that Virender Singh, marginal witness (PW 3) and plaintiff ((PW 2) had said that defendant No. 1 had executed the agreement. As such, first substantial question is answered in favour of the appellant.
Answer to Question No. (ii).
30. It is the case of the plaintiff that earnest money worth Rs. 2,70,000/- was paid to defendant No. 1. On the other hand, defendant No. 1 has pleaded that his signatures were obtained on blank papers as security of loan amount. Defendant No. 1 has admitted his signature on the agreement (Ex. P-1). This clearly indicates that amount was paid to defendant No. 1 either fraudulently or otherwise. As such, in the circumstances of the case, to keep balance and in the interest of equity and justice, this Court deems it fit to hold that alleged earnest money should be refunded by appellant-defendant No. 1 to respondent No. 1- plaintiff with interest @ 6% per annum from the date of making the payment till payment. This substantial question is answered accordingly. In view of above, appeal is partly allowed, judgments and decrees of both the courts below are set aside being perverse and illegal and based on complete misreading of evidence on record and the relief is modified for refund of amount paid to defendant No. 1 with interest @ 6% per annum from the date of receipt till payment.
Costs made easy.
