IMPORTANT POINT
What would be a ‘material fact’ would depend upon facts and circumstances of each case.

JUDGMENT :

B.R. Gavai, J.

1. The appeal challenges the judgment dated 28th January 2009 passed by the learned Single Judge of the High Court of Punjab and Haryana at Chandigarh in Regular Second Appeal No. 3205 of 2007 (O&M), thereby dismissing the appeal filed by the present appellant.

2. Brief facts giving rise to the present appeal are as under:

As per Kartar Singh, the original plaintiff (since deceased), the grandfather of respondent Nos.1 and 2, he had entered into an agreement to sell the agricultural lands on 10th January 1993. As per the said agreement, the sale deed was to be executed before 15th March 1994. According to the plaintiff, a family settlement also took place between him and the appellant-defendant in the month of November 1993. It is to be noted that the plaintiff initially filed a suit for declaration against the appellant-defendant being Civil Suit No. 141 of 1994 on 10th February 1994. The said suit was filed on the basis of the said family settlement that took place in the month of November 1993. On the basis of the application filed by the plaintiff, the said suit was dismissed as withdrawn on 7th May 1994.

3. The plaintiff filed the present suit on 2nd June 1994 being Suit No. 536 of 1994 seeking specific performance on the basis of alleged agreement to sell dated 10th January 1993. The appellant-defendant resisted the suit by filing written statement on 29th October 1994. In the written statement, the appellant-defendant categorically denied the existence and/or the execution of any agreement to sell. It was specifically contended by the appellant-defendant that the second suit was not maintainable in view of withdrawal of the first suit. The plaintiff filed his Replication on 14th November 1994 contending that the first suit for declaration was filed only to avoid payment of stamp duty and registration charges.

4. The learned Additional Civil Judge (Senior Division), Sunam (hereinafter referred to as the “trial court”) vide judgment and decree dated 6th August 1997 dismissed the suit for specific performance. Being aggrieved thereby, the respondents, i.e., the legal representatives of the plaintiff filed an appeal before the learned Additional District Judge, Sangrur (hereinafter referred to as the “Appellate Court”). The Appellate Court vide its judgment and decree dated 26th July 2007 allowed the appeal and decreed the suit of the plaintiff for specific performance of agreement to sell dated 10th January 1993. Being aggrieved thereby, the appellant-defendant preferred an appeal before the High Court. The High Court vide impugned judgment dated 28th January 2009 dismissed the appeal. Hence, the appellant-defendant has approached this Court.

5. We have heard Shri Sidharth Luthra, learned Senior Counsel appearing on behalf of the appellant-defendant and Shri Narender Hooda, learned Senior Counsel and Shri Gagan Gupta, learned counsel appearing on behalf of the respondents-plaintiffs.

6. Shri Luthra, learned Senior Counsel submitted that the trial court, finding that the plaintiff had suppressed the fact with regard to filing of the earlier suit and further that the plaintiff had resiled from the stand taken by him in the earlier litigation and taken a contrary stand, had dismissed the suit. He submitted that however, the learned Appellate Court erroneously accepted the stand of the plaintiff in Replication that the earlier suit was filed only in order to save the stamp duty and registration charges and allowed the appeal.

7. Shri Luthra submitted that the perusal of the evidence of the plaintiff would show that he had not stated anything regarding the earlier suit in his evidence. He submitted that, the learned Appellate Court has failed to take into consideration that all the witnesses were closely associated with the plaintiff and therefore, their evidence was not trustworthy. He further submitted that the appellant-defendant had specifically put up a case that she was a parda-nasheen lady and that the