Harish Kumar vs Amar Nath (Dead) Through Lr

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 308 OF 2015

HARISH KUMAR … APPELLANT(S)

VERSUS

AMAR NATH AND ANOTHER (BOTH DEAD AND REPRESENTED THROUGH LR.) … RESPONDENT(S)

JUDGMENT

S.V.N. BHATTI, J.

1. This Civil Appeal is at the instance of the Defendant in OS. 91-T/04 of

2000 on the file of the Junior Civil Judge’s Court, Patiala. The appellant

challenges the decree and the judgment dated 03.09.2012 in RSA No. 1637

of 2009, High Court of Punjab and Haryana. Through the impugned

judgement, the concurrent findings of the Trial Court and the Appellate Court

have been reversed.

2. The Respondent nos. 1 and 2 filed Suit No. 91-T/04 of 18.11.2000 for

specific performance of the agreement of sale dated 12.02.1999 (‘Suit

Agreement’), said to have been executed by the appellant. The respondents

have since deceased, and are represented through their legal representatives.

The Suit Agreement is for a consideration of Rs. 70,000/-, and it is recited

that the appellant has received Rs. 55,000/- from the Respondents as part

consideration and put them in possession of the house bearing No. B-35/229 Signature Not Verified

(Old Number 522) at Jattanwala Chauntara, Sirhindi Bazar, Patiala (‘Suit Digitally signed by VARSHA MENDIRATTA Date: 2025.08.05 17:08:27 IST Reason:

Premises’). The deadline for obtaining the registered sale deed has been set

out as 20.10.2000. The respondent, to explain the continuous possession of

1 the appellant in the Suit Premises, refers to a contemporaneous rent

arrangement under which the appellant is continuing as a tenant of the Suit

Premises at a monthly rent of Rs. 700/-. The respondent, on 20.10.2000,

alleges to have been present at the sub-registrar’s office for obtaining a

registered sale deed from the appellant. The appellant did not turn up, and it

is stated that the registration of the suit property pursuant to the Suit

Agreement could not be completed. On 21.10.2000, the respondent issued a

legal notice, calling upon the appellant to receive the balance sale

consideration and execute a registered sale deed. On 18.11.2000, the instant

suit was filed for specific performance and possession of the Suit Agreement

and the Suit Premises.

3. The appellant alleges that the respondents committed fraud and

misrepresentation. The case of the appellant is that the appellant borrowed a

sum of Rs. 50,000/- from the first respondent, and the first respondent

obtained signatures on blank stamp papers. The amount was borrowed at

2.25% interest per month. The signatures have been misused, and there was

no agreement between the parties to sell or purchase the Suit Premises. The

appellant claims to have repaid the loan on 25.07.2000. Having regard to the

known relationship between the parties, the documents could not have been

taken back by the appellant on the same date. Admittedly, the appellant, for

avocation, does typing in the District Court premises, and the first respondent

is a practising advocate in Patiala.

4. Further, the case of the appellant is that the respondent misused the

blank signed stamp papers, though the appellant cleared the loan amount

together with interest. There was no agreement to sell or purchase between

2 the parties. The demand for specific performance is surreal, and the Suit

Agreement has been fabricated to file a suit for specific performance.

5. Respondent examined himself as PW1 and marked exhibits P1 to P9. It

is contextual to observe that no other person is examined in discharging the

onus fastened on the respondent by the pleadings of the case, and the issues

for trial framed by the Trial Court.

6. The appellant examined himself as DW1 and also DW2 to DW5, and

marked exhibits D1 to D10. The thrust of the appellant’s evidence as part of

discharging the burden fastened on him is to bring home the alleged fraud

and misrepresentation; the signed stamp papers have been misused; and,

without there being an agreement, which is sine qua non, for the enforcement

of rights under the alleged agreement, the suit has been filed.

7. The following issues have been tried by the Trial Court:

(i) Whether the defendant executed agreement of sale dated 12.02.1999?

(ii) Whether the plaintiffs have always been ready and willing to perform their part of agreement?

(iii) Whether the suit is not maintainable?

(iv) Whether the plaintiff has no cause of action to file the present suit?

(v) Whether the agreement is a result of fraud and misrepresentation?

8. The Trial Court dismissed the suit, and the reasoning is summarised

as follows:

8.1 Plaintiff-Respondents were professional moneylenders. The instances of

money lending were cited by defendant witnesses. The defendant’s

witnesses also stated that the practice of obtaining signatures on blank

papers was used. There was also a receipt relied on by the Trial Court

in favour of Neelam Bhandari by the Respondents, which acknowledged

the receipt of blank signed papers.

3 8.2 The consideration was disproportionately low. The house had a

supposed market value of Rs. 4,04,000/- versus the Rs. 70,000/-

consideration in the agreement dated 12.02.1999.

8.3 The Trial Court also noted that the plaintiff failed to prove that the

defendant executed the agreement of sale.

9. The respondents filed CA No. 92T of 16.4.05/20.9.07/28.9.7 before the

Additional District Judge, Patiala. By the judgment and decree dated

21.10.2008, the appeal of the respondents stood dismissed. To appreciate the

concurrent view on findings of fact taken by the appellate court, the following

gist is stated:

9.1 The First Appellate Court observed that the agreement to sell (Ex.P1)

cannot be regarded as a genuine document and does not constitute

proof of an agreement to sell. While the defendant has admitted his

signatures on the document, he has categorically stated that these

signatures were obtained by the plaintiffs on blank papers at the time

the loan was advanced. The attesting witnesses to the agreement,

Devinder Dhaman and Harnek Singh, have submitted affidavits (Ex.D5

and Ex.D6), stating that their signatures were obtained through

fraudulent means by the plaintiffs and that the agreement was not

executed in their presence.

9.2 The Court further considered that the receipt marked Ex.01 reveals that

the plaintiffs, who are professionals engaged in money lending,

habitually obtained signatures on blank papers from their borrowers.

9.3 It is also noted that the defendant had no alternative accommodation,

rendering the sale of his sole house unlikely. Further, it was observed

that the delay in executing the sale deed raises serious doubts as to the

4 authenticity and genuineness of the agreement. Consequently, the First

Appellate Court found the defendant’s claim to be credible as the

plaintiffs have failed to establish that the agreement was duly executed

by the defendant.

10. The respondent filed a second appeal, RSA 1637 of 2009, and through

the impugned judgment, the view taken by the Trial and the Appellate Court

has been upset. For completing the narrative, the findings of the High Court

are summed up as follows:

10.1 The High Court found that the defendant had admitted his signatures

at five places on the two-sheet agreement. Crucially, the defendant also

admitted writing in his handwriting on the agreement regarding the

receipt of Rs. 55,000/- as earnest money.

10.2 Due to the defendant’s admission of his handwritten endorsement and

initials on the agreement, the High Court concluded that his plea of

having signed blank stamp papers and plain papers cannot be

accepted.

10.3 The Court noted that the defendant, having worked as a typist in Patiala

Courts for 15 years prior to the agreement, was well aware of the legal

consequences of signing blank stamp papers and plain papers.

10.4 The High Court found that the Appellate Court misread the evidence by

treating certain writings (Ex.D5 and Ex.D6) of attesting witnesses

(Devinder Dhaman and Harnek Singh) as affidavits, even though these

witnesses were never examined in the witness box.

10.5 The High Court discredited document Ex.D1 (a receipt from plaintiff

No.1 to PW-4, used by the defendant to assert money-lending practices).

5 10.6 The High Court relied on the rent note (Ex.P3) and rent receipt (Ex.P4),

which the defendant admitted executing, indicating he took the

disputed house on rent from the plaintiffs after the agreement to sell

and paid rent for a period.

10.7 The High Court noted that the defendant, during his cross-examination,

stated that the criminal case lodged against plaintiff No. 1 and his son

was dismissed by the Bar Council, and after investigation, the case was

recommended for cancellation.

11. Mr. Abhimanyu Tewari, learned counsel for the appellant, contends

that the substantial question of law, even by applying the standard applicable

to an RSA in the High Court of Punjab and Haryana, is neither substantial

nor a basic question of law. The misreading and misappreciation of evidence

are not applied in an abstract way, and within the fold of such criteria, the

re-appreciation of evidence leading to an opinion of the High Court is

impermissible. In the case on hand, the evidence has been read in proper

perspective, and findings of fact have been arrived at by the Trial and the First

Appellate Courts. This view cannot be termed as misreading or

misappreciation of evidence by the High Court. To assail the findings, he

argues with force that assuming the appellant has set up a blank paper

theory, then there is no prohibition in law to establish that the blank papers

have been misused and that there was no agreement of sale, as projected by

the plaintiff. The Trial Court has rightly placed the burden on the plaintiff,

and except for the self-serving evidence of the first respondent, there is no

other evidence on the existence of an agreement, execution of a

contemporaneous rent deed, payment of rent, and demand for specific

performance before the alleged agreed due date. Per contra, the witnesses to

6 the Suit Agreement, Devinder Thamman and Harnek Singh, are not tendered

in evidence. The reason is that the alleged witnesses have given affidavits in

D5 and D6 in favour of the appellant. The respondent should have summoned

them as court witnesses to discharge the onus in proving the existence of the

Suit Agreement. The specific performance is a discretionary relief. The

impugned judgment has not exercised the discretion or considered the

alternative relief of directing the refund of the admitted amount and giving

quietus to the dispute between the parties. A sum of Rs. 2,00,000/- can be

paid towards the repayment of the admitted debt of Rs. 50,000/-. The specific

performance causes injustice to the appellant, and the impugned judgment

warrants interference under Article 136 of the Constitution of India.

12. Mr. Krishnam Mishra, learned counsel for the respondents, places

reliance on the findings recorded by the High Court and contends that since

the signatures on the Suit Agreement and rent deed are not disputed by the

appellant, the burden to prove the purpose for which the signatures are relied

upon is on the appellant. The sketchy evidence adduced by the appellant

cannot be said to discharge the burden fastened on a party who admits the

signatures on a document and pleads blank paper theory. The minor

discrepancies, if any, in the evidence of respondents ought not to be a ground

for disturbing the well-considered judgment of the High Court. The threshold

level of consideration of a second appeal, having regard to the state

amendment, is different, and the impugned judgment conforms to the

jurisdiction conferred on the High Court. In reply to the alternative argument

of the appellant, it is contended that the appellant has also failed to prove

that the amount borrowed from the respondent is duly discharged. It is

argued that Rs. 4,00,000/- is reasonable either in view of specific performance

7 or towards discharging the advance of Rs. 50,000/- admittedly received by

the appellant.

13. We have taken note of the rival contentions and perused the record.

14. At the outset, it can be noticed that in the peculiar pleadings of the

case, the strict principle of burden of proof may not be the principle on which

we propose to appreciate the evidence vis-à-vis the pleadings. In Anil Rishi v.

Gurbakshi Singh,1 this Court held that there is a distinction between burden

of proof and onus of proof, and that onus of proof has greater force when the

issue is which party is to begin forwarding evidence in support of a

proposition. In matters such as the present, it is the onus of proof that is

applied in determining whether the proof as needed to enforce an agreement

is made out by the respondents or not.

15. The respondents did not examine the witnesses to the alleged Suit

Agreement or the rent deed. The evidence of the respondent, as PW1, remains

self-serving evidence and cannot be wholly relied upon as evidencing the

execution of Exhibit P1– the Suit Agreement. As observed by the High Court,

we may not look at the affidavits given by the said witnesses to Exhibit P1.

The crucial aspect that was missed in coming to a conclusion of misreading

or misappreciation of evidence in the impugned judgement is that no steps

have been taken by respondents to at least cross-examine the affidavit given

in Exhibits D5 and D6. The reasons are apparent. It is further noted that the

respondent claims to have taken possession under Exhibit P1 and re-

transferred possession to the appellant under a rent deed. In a circumstance

such as the present, it is all the more a good requirement in law that the

1 (2006) 5 SCC 558.

8 movement of possession from appellant to respondent has gone in the first

instance, and secondly, re-transferred to the appellant by the respondent

because the appellant was and is in possession of the Suit Premises. There is

no evidence adduced by the first respondent. The consensus ad idem resulting

in bringing into existence Exhibit P1 is a material circumstance, and though

the issue calls upon the respondent to place evidence on this behalf, there is

no evidence to support the case of the respondents. The respondent failed to

place evidence either in support of the receipt of rent of Rs. 700 per month

from the appellant or to demand execution of the registered sale deed before

20.10.2000. The failure to explain this crucial aspect certainly should have

impressed upon the High Court in appreciating the existence of an agreement

of sale between the parties. On the one hand, the respondents accepted the

onus to discharge the existence of a valid agreement of sale, while on the

other, the evidence the respondents provided is self-serving. In Man Kaur

(Dead) by LRs. v. Hartar Singh Sangha,2 this Court held that to succeed in a

suit for specific performance, the plaintiff has to prove (a) the existence of a

valid agreement of sale, (b) that the defendant committed breach of contract;

and (c) that the plaintiff was always ready and willing to perform his part of

the obligations in terms of the contract. In light of this, even if the respondents

were ready and willing to perform their part of the obligations in the supposed

Suit Agreement, they failed to prove the existence of a valid Suit Agreement.

16. With the assistance of the Counsel appearing for the parties, we have

looked at oral evidence as well, and without much deliberation, we hasten to

add that the High Court fell into error in coming to the findings noted above.

2 (2010) 10 SCC 512.

9 Therefore, the findings are unsustainable, warrant interference with the

impugned judgment and hence are set aside. The above consideration takes

us to the very case of the appellant that the appellant borrowed a sum of Rs.

50,000/- and claims to have returned it. We note that the onus to discharge

the claim of returning the debt borrowed from the respondents rests on the

appellant. The indebtedness of the appellant to the respondents can be

accepted in the admission of the appellant. The appellant, to stay clear from

the enforcement of the said debt, must prove discharge of the debt, in the

manner known and accepted by the law. There is no evidence on the discharge

of debt by the appellant. Thus, irrespective of the terminology and the relief

we mould, the appellant cannot have it both ways. Therefore, we hold that the

respondents are entitled to receive a sum of Rs. 3,00,000/- from the

appellant, within four weeks from today. The appeal stands allowed as

indicated above. All pending applications are disposed of.

………..……….…………………J. [AHSANUDDIN AMANULLAH]

..…………………………J. [S.V.N. BHATTI]

New Delhi;

August 05, 2025.

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