Dismissed

Ram Murti (Deceased) Thr Lrs and Anr. v. Kamal Kumar @ Kanwal Kumar Deceased Th Lrs

Punjab & Haryana HC16 Mar 2023RSA/1158/2022

Case brief

AI extract

What is this about?

In this second appeal concerning specific performance of an alleged agreement to sell shops, the High Court dismissed the suit. The appellant failed to lead any evidence to prove the agreement, and the arguments regarding the unavailability of witnesses were rejected as insensible. The High Court upheld the Courts below's findings, holding that no question of law arose.

What did the court decide?

The appeal was dismissed and the Courts below's judgments were upheld.

Ram Murti (Deceased) Thr Lrs and Anr. Vs Kamal… — Specific Performance | Punjab & Haryana HC (2023)

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2023:PHHC:039506

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RSA No.1158 of 2022

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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106 RSA No.1158 of 2022 (O&M) Date of Decision : 16.03.2023

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Ram Murti (deceased) through LRs and Another ....Appellants

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VERSUS

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Kamal Kumar @ Kanwal Kumar (deceased) through LRs ....Respondents

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CORAM : HON’BLE MRS. JUSTICE ALKA SARIN

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Present : Mr. Arun Takhi, Advocate for the appellants.

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ALKA SARIN, J. (Oral)

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The present appeal has been preferred by the plaintiffappellants against the judgments and decrees dated 09.02.2016 and 31.01.2022 passed by the Courts below.

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The brief facts relevant to the present lis are that the plaintiffappellants approached the Court by filing a suit for specific performance of the agreement to sell dated 01.10.2007 alleged to have been executed by the defendant-respondent in favour of the plaintiff-appellants regarding sale of two shops described in the plaint in detail and in the alternative for recovery of Rs.6,00,000/- by way of refund of money already received and liquidated damages and for permanent injunction. The case set up by the plaintiffappellants was that the defendant-respondent was owner of the shops in question and agreed to sell the two shops for a total sale consideration of Rs.6,00,000/- vide agreement dated 01.10.2007. An amount of Rs.4,50,000/was received as earnest money and the target date for execution of the sale deed was fixed as 01.04.2008. It is further averred that the plaintiffappellants were always ready and willing to perform their part of the

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agreement but the defendant-respondent did not turn up for the execution of

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JITENDER KUMAR 2023.03.17 10:05 I attest to the accuracy and integrity of this order/judgment. Chandigarh

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2023:PHHC:039506

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RSA No.1158 of 2022

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the sale deed. On notice, the defendant-respondent appeared and filed his written statement and raised a preliminary objection qua maintainability. On merits it was contended that no agreement to sell was executed between the parties and the defendant-appellant had taken Rs.2,50,000/- for his personal needs from the plaintiff-appellants and, as security for the money, the plaintiff-appellants asked the defendant-respondent to sign some blank papers. The agreement to sell was denied in toto.

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On the basis of the pleadings of the parties, the following issues were framed :

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Whether the plaintiffs are entitled to take possession of suit property by way of specific performance of agreement to sell dated 01.10.2007 ? OPP

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Whether plaintiffs are entitled to recovery of Rs.6,00,000/- from defendant as prayed for in alternative relief ? OPP

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Whether the suit of plaintiffs is not maintainable in its present form ? OPD

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Whether the plaintiffs have got no locus standi to bring and file the present suit ? OPD

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Whether the plaintiffs are estopped by their own acts, conducts and admissions from filing the present suit ? OPD

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Whether the suit of plaintiffs is not properly verified ? OPD

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Whether the plaintiffs have not come to the court with clean hands and have suppressed the material facts from the court ? OPD

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Whether the suit of plaintiffs is bad for mis-joinder and non-joinder of necessary parties ? OPD

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Relief.

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JITENDER KUMAR 2023.03.17 10:05 I attest to the accuracy and integrity of this order/judgment. Chandigarh

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2023:PHHC:039506

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RSA No.1158 of 2022

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The plaintiff-appellants examined PW1, Deed Writer and PW2, Naresh Kumar, the attesting witness of the agreement to sell. However, the witnesses did not turn up for their cross-examination and their testimonies were not read in evidence. PW3 was also examined, who prepared the site plan. However, no other evidence was led by the plaintiff-appellants to prove their case. In the absence of any evidence, the suit was dismissed by the Trial Court. Aggrieved by the judgment and decree dated 09.02.2016 of the Trial Court, an appeal was preferred which also met with the same fate and vide judgment and decree dated 31.01.2022 the appeal was dismissed. Hence, the present regular second appeal.

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Learned counsel for the plaintiff-appellants would contend that the agreement to sell was witnessed by two attesting witnesses. Of these, PW-2 Naresh Kumar stepped into the witness-box for his examination-inchief but could not be cross-examined as he expired. It is further contended that the scribe, though had stepped into the witness-box for his examinationin-chief, could also not be cross-examined since the plaintiff No.1 himself died and hence the scribe did not appear. Learned counsel for the plaintiffappellants would further contend that the plaintiff-appellants were not given an opportunity to lead their complete evidence and further that the plaintiffappellants could not come present for leading their evidence due health issues.

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Heard.

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In the present case no evidence has been led by the plaintiffappellants to prove their case. The argument of learned counsel for the plaintiff-appellants that the attesting witness could not be cross-examined since he expired cannot be believed inasmuch as the date of death of PW2,

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JITENDER KUMAR 2023.03.17 10:05 I attest to the accuracy and integrity of this order/judgment. Chandigarh

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2023:PHHC:039506

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RSA No.1158 of 2022

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Naresh Kumar, has not come on the record. The said witness was examined on 21.01.2012, however, even today learned counsel for the plaintiffappellants is unable to state the date of death of the said witness. The argument of learned for the plaintiff-appellants that since the plaintiff No.1 had expired and therefore the scribe did not turn up for his crossexamination is also not an argument which can be accepted. Admittedly there were two plaintiffs in the suit and there is no explanation forthcoming as to why the scribe could not be produced by the plaintiff No.2 or by the legal representatives of plaintiff No.1.

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In the absence of any evidence, both the Courts below have rightly returned findings of fact non-suiting the plaintiff-appellants which findings call for no interference in the present regular second appeal. No question of law, much less any substantial question of law, arises for determination by this Court in the present case. The appeal being devoid of any merit is accordingly dismissed. Pending applications, if any, also stand disposed off.

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Dismissed.

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16.03.2023 ( ALKA SARIN ) jk JUDGE NOTE : Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

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JITENDER KUMAR 2023.03.17 10:05 I attest to the accuracy and integrity of this order/judgment. Chandigarh

Ram Murti (Deceased) Thr Lrs and Anr. v. Kamal Kumar @ Kanwal Kumar Deceased Th Lrs

Case brief

What is this about?

What did the court decide?

Ram Murti (Deceased) Thr Lrs and Anr. v. Kamal Kumar @ Kanwal Kumar Deceased Th Lrs

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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