Specific performance of a contract is the rule, while refusal is an exception requiring substantial proof of grounds for denial.

JUDGMENT :

(Pankaj Jain, J.)

Defendant is in second appeal. For convenience, parties hereinafter are referred to by their original position in the suit i.e. the appellant as defendant and respondent as the plaintiff.

2. Plaintiff filed suit for possession by way of specific performance of an agreement to sell dated 25.02.2015 claiming the defendant agreed to sell suit land as detailed in para No.1 of the plaint in his favour for valuable consideration of Rs.13,12,500/-. Out of total sale consideration, Rs.10 lakh was paid as earnest money. Rs.7,82,000/- was paid by way of cheque and Rs.2,18,000/- in cash. Both the parties agreed to get the sale deed executed on or before 24.11.2015. Plaintiff further claimed that on the appointed day i.e. 24.11.2015, plaintiff remained present in the office of Sub-Registrar with balance sale consideration and the expenses of registration. However, defendant failed to turn up. Suit was instituted on 22.03.2017.

3. Suit was contested by the defendant who denied execution of the agreement to sell. It was claimed that the agreement to sell is a result of fraud and forgery. Though receipt of amount by way of cheque was admitted, but receipt of cash amount was denied. It was further claimed by the defendant that he availed loan from the plaintiff. As a security, plaintiff asked for his signed blank stamp papers. Defendant agreed to repay sum of Rs.7,82,000/- by 25.02.2017 alongwith lump sum interest of Rs.2,18,000/-. It is those blank papers which are being misused by the plaintiff. Defendant further claimed that the transaction being a loan is evident from the fact that an amount of Rs.2 lakh was paid back to the plaintiff by a cheque dated 05.08.2015 by the defendant. On the basis of pleadings, Trial Court framed following issues:-

“1. Whether the plaintiff is entitled to a decree for specific performance of agreement to sell dated 25.2.2015 on the grounds as averred in the plaint? OPP

2. If issue no.1 is decided in affirmative than whether the plaintiff is entitled to decree for permanent injunction as averred in the plaint? OPP

3. Whether the present suit is not maintainable in present form? OPD

4. Whether the plaintiff has no cause of action and locus standi to file the suit? OPD

5. Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD

6. Relief.”

4. Plaintiff himself appeared as PW-1. Both the attesting witnesses to the agreement to sell namely Ram Bhaj and Jai Bhagwan were examined as PW-3 and PW-6 respectively. Affidavit dated 24.11.2015 attested by Executing Magistrate was proved as Ex.P-4. Trial Court returned finding on issues No.1 and 2 in favour of the plaintiff on the basis of the evidence. Issue No.3 to 5 were decided in favour of the plaintiff as defendant failed to lead any evidence. A fortiori, suit was decreed.

5. Defendant preferred appeal along with application filed under Order 41 Rule 27 CPC seeking permission to lead additional evidence by examining Ram Rattan son of defendant. The application as well as main appeal stands dismissed by the Lower Appellate Court. Before this Court also, appellant has filed application under Order 41 Rule 27 seeking permission to examine Ram Rattan.

Counsel for the appellant appeared on 30.07.2024. After arguing for some time, he requested for adjournment. The matter was adjourned to 31.07.2024. On the said date, counsel appearing on his behalf again made request for adjournment. On being declined, he sought time to file written arguments. In the last two weeks, no written arguments have been filed.

6. The defence of the appellant to resist suit for specific performance is denial of the agreement to sell dated 25.02.2015. It needs to be mentioned that on the same date, receipt Ex.P-3 was executed. Ram Rattan, son of the defendant signed the same as attesting witness, witnessing receipt of earnest money. The other circumstance pleaded by the defendant in his evidence is the fact of paying back Rs.2 lakhs by cheque da