RSA No. 1266 of 2008

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

RSA No. 1266 of 2008 (O&M)

Date of Decision: 20 .01.2012

Gulshan Kanda

...Appellant

Vs.

Mohinder Singh (dead) through

LRs & Ors.

...Respondents

BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL

Present:

Mr.Harsh Bunger, Advocate,

for the appellant.

None for the respondents.

(Respondents No.2,3 & 5 proceeded ex parte)

---

A.N.Jindal, J.

This is the plaintiff's appeal against the judgment dated

6.12.2007 passed by the first appellate court dismissing the appeal

against the judgment dated 25.09.2006 passed by the trial court

whereby suit of the plaintiff for specific performance and in the

alternative for recovery of Rs.60,000/- was dismissed.

In nutshell, the facts are that the defendant

No.3/respondent (herein referred as the defendant No.3) being the

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general attorney of defendant No1 Mohinder Singh and Sarwan

Singh son of Ragga Singh (since deceased) now represented by

defendants Nos. 2-A to 2-C had entered into an agreement for sale of

land, as fully detailed in the heading of the plaint on 12.7.1993 and

after receiving a full and final payment of Rs.30,000/- he had

executed the agreement. The plaintiff has always been ready and

willing to perform his part of the contract but the defendants failed to

execute the sale deed. Despite repeated requests, they did not

perform their part of the contract.

Upon notice, the defendants did not appear in the court,

as such, the trial court proceeded against them ex parte.

Trial court while holding that through agreement Ex.P.4,

the defendants never intended to sell the property but it was

executed for securing some debt, dismissed the suit of the plaintiff.

Appeal preferred by the plaintiff also met the same fate.

Arguments heard. Record perused.

Learned counsel for the appellant has primarily argued

that the first appellate court has dismissed his appeal on the ground

that affidavits of the witnesses namely Gulshan Kanda PW 3

(plaintiff) and Sudesh Mehta (PW 4) a marginal witness, were not

correctly verified, therefore, these affidavits cannot be taken into

consideration. Consequently, while holding that the execution of the

agreement is not proved, dismissed the suit.

Learned counsel for the appellant has urged that the

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said observation of the trial court is not sustainable. The defect in the

affidavits was curable and could be directed to be cured. Further

when the affidavit is tendered by the deponent in the court while

appearing as a witness, then the defect becomes immaterial as the

facts as contained in the affidavit become part of the statement of

the person tendering the affidavit by way of evidence.

Having heard the contentions, it appears that the trial

court has not recorded correct observation by relying upon the

judgment Milkha Singh & Ors. Vs. Nirmal Singh & Ors. 2007 (4)

RCR (Civil) 842.

Having perused the judgment, it transpires that the court

actually was not seized of the question with regard to the value of the

affidavits when tendered into evidence. In that case advocate had

tendered the affidavit and he did not appear as a witness but the

present case is on different facts. Plaintiff Gulshan Kanda while

appearing as PW 3 and Suresh Mehta as PW 4 attesting witness to

the agreement, tendered their affidavits Ex.PW 3/A and Ex.PW4/A

and deposed that the same may be read as part of their statements.

In that situation the court could not reject the affidavits merely due to

some defective verification.

Procedural law is the hand made by administration of

justice. The witnesses in this case while tendering the affidavits had

made a categorical deposition that contents of the said affidavits may

be read as part of their statements, therefore, in such a situation

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what is stated in the affidavit forms part of his statement.

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