The plaintiff's cogent evidence of due execution of the agreement and readiness to perform the contract prevailed over the defendant's failure to prove his version, highlighting the importance of evidence and presumption of correctness of official acts.

L.N. MITTAL, J. (ORAL) - Defendant Suresh who was successful in the trial court but has been unsuccessful in the lower appellate court has filed the instant second appeal.

2. Respondent-plaintiff Sanjay Garg filed suit against defendant-appellant for possession of the suit house by specific performance of agreement dated 07.02.2002 alleging that the defendant agreed to sell the suit house to the plaintiff for Rs.70,000/-and received Rs.40,000/-as earnest money and executed the aforesaid agreement. The plaintiff was always ready and willing to perform his part of the contract but defendant committed breach thereof.

3. The defendant alleged that he had borrowed Rs.8,500/-from the plaintiff and he had to pay Rs.100/-per day as interest to the plaintiff. The defendant paid Rs.10,000/-to the plaintiff towards loan and interest. If the alleged agreement is proved, the same might have been obtained as security for the aforesaid loan. The plaintiff is a money lender and he obtains security in the shape of pronote and receipt, agreement etc. from his debtors. It was also pleaded that market price of the suit house was Rs.6,00.000/-and, therefore, the defendant could not agree to sell the same for Rs.70,000/-only. Various other pleas were also raised.

4. Learned Additional Civil Judge (Senior Division), Samrala vide judgment and decree dated 09.04.2008 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Ludhiana vide judgment and decree dated 07.01.2009 and thereby suit filed by the plaintiff stands decreed. Feeling aggrieved, defendant has preferred the instant second appeal.

5. I have heard learned counsel for the parties and perused the case file.

6. The plaintiff himself stepped into witness box as PW-1 and examined Vishesh Kumar, Deed Writer as PW-2 who scribed the agreement and also examined Nand Kishore as PW-3 attesting witness of the agreement. All of them stated according to plaintiff's version that the defendant duly executed the aforesaid agreement and received Rs.40,000/-as earnest money from the plaintiff. On the other hand, there is sole self-serving testimony of the defendant in support of his version. The defendant has not come to the court with clean hands. He did not categorically plead that the agreement was obtained from him as security for the alleged loan. On the contrary, the defendant wanted to keep his options open. The defendant alleged that the agreement was not executed by him, but if the agreement is proved, then it was obtained by fraud and misrepresentation and as security for loan. All these three pleas are self-contradictory. On the contrary, the plaintiff has led sufficient evidence to prove due execution of the agreement. The plaintiff has examined scribe of the agreement as well as one attesting witness of the agreement, besides himself entering into witness box. This cogent evidence of the plaintiff is not rebutted by oral self-serving statement of the defendant. On the contrary, the defendant in the written statement impliedly admitted the execution of the agreement by him although allegedly as security for the loan. Said version of the defendant that the agreement was executed as security for the loan is not proved. There is no reason why Vishesh Kumar, Deed Writer PW-2 would depose falsely against the defendant. There is also no reason to discard the testimony of Nand Kishore, PW-3 attesting witness of the agreement.

7. Learned counsel for the appellant contended that the plaintiff did not file any replication to the written statement of the defendant and therefore, facts pleaded by the defendant in the written statement stand admitted. Reliance in support of this contention has been placed on the judgment of this court in case of Sujan Kaur Versus Chand Singh, 2003(3) Civil Court Cases 254 (P&H). The contention cannot be accepted. In the case of Sujan Kaur (supra), plaintiff had filed replication but did