2001 PLP 1236 (SCMR)

ABDUR REHMAN KHAN, J.‑‑‑Leave to appeal is sought from the judgment dated 29‑3‑2000, delivered by a Division Bench of the High Court; whereby, the revision petition filed by the petitioner was dismissed and the judgment of the Appellate Court dismissing the suit of the petitioner, was maintained.

2. Petitioner/plaintiff brought a suit for specific performance against the defendant /respondent on the allegation that the defendant had entered into an agreement to sell on 10‑2‑1983 with the plaintiff and received Rs.30,000 as advance. However, the defendant failed to perform her part in the agreement to sell and, therefore, the plaintiff sued her for th's purpose. During the proceedings of the said suit the defendant recovered Rs.72,000 on 18‑4‑1983, and Rs.55,000 on 4‑9‑1983 and as such the total amount received is Rs.1,57,

000. The time limit for the execution of sale‑deed was five months from 4‑9‑1983. It is alleged that in the above circumstances the suit was withdrawn. Thereafter the present suit was filed wherein the prayer is that the defendant should be directed to execute the sale‑deed in favour of the petitioner on receipt of the balance amount or to return the amount already received.

3. It is to be noted that the defendant filed two written statements and in the one appearing on page 33 of the paper book she had admitted the execution of agreement to sell, but condemned the petitioner for non compliance of her part under the agreement. But in the amended written statement she denied the execution and described the agreement to sell as forged and fictitious.

4. The learned trial Court held that the agreement to sell was genuine and that the parties were bound by it and, accordingly, decreed the suit on payment of the balance amount of Rs.43,

000. The Appellate Court came to a different conclusion that the one reached by the trial Court as it held that the agreement to sell was bogus and fictitious. A learned Judge in the High Court by the impugned judgment affirmed the judgment of the Appellate Court.

5. We heard the learned counsel for the petitioner and the one appearing for the caveator and went through the relevant portion of the record.

6. The learned counsel raised the following points in support of this petition:‑‑ (i) The execution of the agreement to sell was admitted in the original written statement and in the statement in Court appearing at page 58 filed by the defendant/respondent wherein she stated "I have read the agreement deed Exh.P.W.I/1, P.W.2/1 and P.W.3/1 which correctly bears my signature". And again "I have seen the signatures of my father and brother as marginal witnesses on the original deed Exh.P.W.l/1, P.W.2/1 and P.W.3/1, which are the signatures of my father and brother". It was therefore, submitted that the appellate and revisional Courts had drawn incorrect inference from proved facts. (ii) Whether in view of the above admission of the defendant in the written statement and in her statement in Court the learned Appellate Court and the learned High Court were still legally justified to hold that the gift deed had not been proved because of the non‑entry of the number of Identity Cards of the executant and the marginal witnesses of the gift deed? (iii) Whether the respondent/defendant could be allowed to plead a case different from the one as stated in the original written statement? (iv) Whether any oral evidence could be led or could be considered as against the contents of the deed? We grant leave to consider in detail the above submissions. Q.M.H./M.A.K./B‑38/S Leave granted.