The burden of proof of fraud and forgery lies on the party alleging it, and capacity and willingness to perform the contract are essential in a suit for specific performance.

JUDGMENT

Sudhir Mittal, J. - The bare relevant facts are that a suit for specific performance of agreement to sell dated 27.09.2007 was executed in respect of land measuring 25 kanals and 06 marlas @ Rs.6,00,000/- per acre. The defendant received earnest money amounting to Rs.05,50,000/- and executed a separate receipt. Registered sale deed was to be executed on or before 26.09.2008 on payment of the balance sale consideration. The defendant failed to abide by the agreement and thus, the suit was instituted with the averment that the plaintiff was always ready and willing to perform his part of the contract, but the defendant has backed out therefrom. Prior to the institution of the suit, a legal notice was also sent.

2. The defendant was proceeded against ex parte and the suit was decreed vide ex parte decree dated 20.03.2012. The said decree was set aside by the First Appellate Court vide order dated 19.07.2016. Thereafter, the defendant appeared on 16.08.2016 and filed his written statement.

3. The execution of agreement to sell dated 27.09.2007 was denied. Receipt of earnest money was also denied. It was averred that the agreement to sell was a fraudulent and fabricated document and was the result of collusion between the scribe, alleged witnesses and the plaintiff. Fabrication is apparent on the record as the signature alleged to be that of the defendant is in Punjabi script. The defendant does not sign in Punjabi script. Receipt of notice was also denied.

4. The trial Court dismissed the suit, but the plaintiff's appeal has been allowed. Suit for specific performance has been decreed and the defendant has been directed to execute the sale deed within two months from the date of passing of the judgment. Thus, the defendant has preferred the present Regular Second Appeal.

5. Learned counsel for the appellant has argued that the appellate Court was in error in allowing the appeal. The agreement to sell dated 27.09.2007 had not been proved in accordance with law as the stamp vendor and deed writer had not been produced to prove the same. That apart, the agreement to sell was surrounded by suspicious circumstances. It had been executed at Nawanshahr, whereas, the land in dispute is situated in Tehsil Balachaur, where admittedly, a large number of stamp vendors and deed writers are available. Further, although PW-2 has stated that the agreement to sell bore the stamp of the deed writer, but in fact, it did not. Reliance has been placed upon Joseph Johan Peter Sandy Vs. Veronica Thomas Rajkumar and another, 2013 (2) RCR (Civil) 461 as well as Richhpal Singh Vs. Sandhura Singh, 2013 (3) Civil Court cases 242. Reliance has also been placed upon Subhash Chander and others Vs. M/s Active Promoters Pvt. Ltd, 2015 (1) RCR (Civil) 62.

6. Let us examine this argument first. An attested document can always be proved by examination of the attesting witnesses. In this case, the agreement to sell dated 27.09.2007 has been proved by the plaintiff as well as by an attesting witness, namely, Davinder Kumar who appeared as PW-2. Both have stated that the defendant executed the agreement to sell and received earnest money of Rs.05,50,000/-. Thus, the agreement to sell stood proved. The argument that non-examination of stamp vendor and deed writer had resulted in failure to prove the agreement, cannot be accepted. No legal principle has been formulated to support this argument. The argument has been raised only on the basis of Joseph Johan Peter Sandy (supra), Richhpal Singh (supra) and Subhash Chander (supra). In Joseph Johan Peter Sandy (supra), a suit had been filed for declaration that an agreement deed to exchange property was null and void being a forgery and having been obtained by undue influence. The case put-forth was that signature had been obtained on blank papers. It was under these circumstances that it was held that non-examination of the scribe had resulted in non-proving of the agreement deed to exchange. Only the scribe could have st