The sufficiency of evidence proving the execution of the agreement, payment of earnest money, and the plaintiff's readiness and willingness is crucial in a suit for specific performance.

ORDER :

Rajbir Sehrawat, J.

1. This is the second appeal filed by the defendant in the original suit, challenging the concurrent judgments' and decrees against him; passed by the Courts below in a suit for specific performance; filed by the plaintiff/respondent.

2. For convenience, the parties herein would be referred to as the plaintiff and the defendant; as they were described in the original suit.

Shorn off unnecessary details, the facts giving rise to the present appeal are that the plaintiff had filed a suit for specific performance of the agreement to sell dated 06.01.2015. It was pleaded that the defendant was the owner of the suit property. Defendant entered into an agreement to sell; as mentioned above. At the time of agreement, part payment amounting to Rs. 3,79,000/-; out of the total sale consideration; was made to the defendant. Total sale consideration was settled to be Rs. 5 lakhs. The target date fixed for execution of the sale deed was 02.07.2015. Since 02.07.2015 happened to be a holiday, therefore, the plaintiff went to the Office of the Sub-Registrar on the next working day, i.e. on 03.07.2015, along with the amount of the remaining sale consideration.

3. However, the defendant did not come present there. Therefore, the plaintiff got his presence marked in the Office of the sub-Registrar by getting an affidavit attested from the Sub-Registrar, in his capacity as the Executive Magistrate. On the next day, the plaintiff personally met with defendant and requested him to execute the sale deed. However, the defendant refused to do the same. Therefore, despite the plaintiff being ready and willing all the times to get the sale deed executed, the defendant had not executed the sale deed. Hence the suit.

4. On notice, the defendant appeared before the Court: However, despite having been granted numerous opportunities, even the written statement was not filed by the defendant. Hence, his defense was struck off by order of the Court.

5. To substantiate his case, the plaintiff examined himself as witness. Besides this, the plaintiff also examined the scribe of the agreement Brij Mohan Vasistha as PW 4. The attesting witness Babu Lal Dagar was examined as PW 5. The other attesting witness Naim Pal was examined as PW 3 and still another witness Shree Pal was examined as PW 2. Besides this, the agreement was proved on record as Ex. P.1. The receipt of part payment was proved as Ex. P2. The affidavit qua the presence before the sub Registrar was proved as Ex. P3. Besides this, the other documents related with the other issues connecting to the matter; were also proved on record. Since the defence of the defendant had been struck off, therefore, no witness was examined by him to lead any evidence. Hence, the proceedings remained without the written statement and the evidence of the defendant.

6. After considering the evidence led by the plaintiff, the trial Court decreed the suit filed by the plaintiff and directed the defendant to hand over the possession of the property after execution of the sale deed in favour of the plaintiffs on receipt of the remaining sale consideration. Aggrieved against the said judgment and decree, the defendant preferred appeal before the Lower Appellate Court. However, the Lower Appellate Court has also dismissed the appeal filed by the defendant. Hence, the present appeal has been preferred.

7. While arguing the case, learned counsel for the appellant/defendant has submitted that the defendant was wrongly denied opportunity to file the written statement and to lead the evidence. Still further, it is submitted that otherwise also, mere absence of the written statement on behalf of the defendant and absence of his" evidence; is no ground to decree the suit filed by the plaintiff. The case of the plaintiff has to stand on its own legs. As per the evidence on file, the plaintiff has not proved either the agreement in question nor his readiness and willingness to get the sale deed executed. Hence, both t