Santosh vs Suresh

-1-
222 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-634-2021 (O&M)
Date of Decision: 10.09.2026
SANTOSH ...Appellant
Versus
SURESH ...Respondent
CORAM: HON'BLE MR. JUSTICE PARMOD GOYAL
Present: Mr. Sandeep K. Sharma, Advocate
Mr. Svamin Sharma, Advocate
Mr. Lakshya Saini, Advocate
Mr. Utsav Sharma, Advocate
for the appellant.
PARMOD GOYAL, J. (ORAL)
Present regular second appeal has been preferred by
appellant/plaintiff being aggrieved by dismissal of her suit for possession by
way of specific performance of agreement to sell dated 07.06.2011. Vide
impugned judgment and decree dated 29.07.2017, passed by learned Civil
Judge (Junior Division), Rohtak as well as by judgment and decree dated
02.05.2019, passed by learned District Judge, Rohtak, suit as well as first
appeal preferred by appellant/plaintiff were dismissed.
2. Both suit as well as first appeal were dismissed on the ground
that though appellant/plaintiff had succeeded in proving due execution of
agreement to sell dated 07.06.2011, but has failed to prove her readiness and
willingness to perform her part of the agreement.
3. In her suit for possession by way of specific performance of
agreement to sell, appellant/plaintiff had asserted that respondent/defendant
had agreed to sell the suit property i.e. House measuring 200 sq yards
CHIRANJEEV SINGH
2026.09.11 17:31
I attest to the accuracy and
integrity of this document

RSA-634-2021 -2-
situated within Lal Dora of Village Ladhot, Tehsil and District Rohtak for a
total consideration of Rs.2,50,000/- in favour of appellant-plaintiff by
executing agreement to sell dated 07.06.2011. That an amount of
Rs.1,00,000/- was paid as earnest money at the time of execution of
agreement and sale was to be concluded by 06.06.2012. The remaining
consideration was payable at the time of registration of sale deed. It was
claimed that despite agreement, respondent/defendant had failed to execute
the sale deed within the stipulated period by 06.06.2012. It was also claimed
that appellant/plaintiff has always been ready and willing to perform her part
of agreement and had approached respondent/defendant on many occasions
i.e. from 07.06.2011 to 06.06.2012, but respondent/defendant had always
avoided to execute the sale deed. In order to avoid execution of sale deed,
respondent/defendant got a suit for injunction against himself in collusion
with his son, wherein son of appellant/plaintiff had claimed to be owner in
possession of the suit property. It was further asserted that thereafter,
appellant/plaintiff had duly served notice dated 16.04.2015 for execution of
sale deed on or before 04.05.2015 and on failure to execute the sale deed,
appellant/plaintiff had preferred suit for specific performance.
4. Respondent/defendant by way of his written statement had
denied execution of agreement dated 07.06.2011 as well as having received
Rs.1,00,000/- as earnest money. Dismissal of suit was prayed for.
5. From the pleadings of parties, following issues were framed :-
1. Whether the plaintiff is entitled for the decree of possession by
way of specific performance, on the grounds as prayed for?
OPP
2. Whether the suit of the plaintiff is not maintainable in the
CHIRANJEEV SINGH
2026.09.11 17:31
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RSA-634-2021 -3-
present form? OPP
3. Whether the plaintiff has no cause of action to file the present
suit? OPD
4. Whether the plaintiff has not come to the court with clean hands
and suppressed the material? OPD
5. Relief.
6. Issue No.1 was decided in favour of appellant/plaintiff whereby
it was held that respondent/defendant had duly executed agreement to sell
dated 07.06.2011 after receiving earnest money of Rs.1,00,000/-. However,
both the Courts below had concluded that though appellant/plaintiff had
succeeded in proving execution of agreement to sell, but has failed to show
her readiness and willingness to perform her part of the agreement and,
therefore, appellant/plaintiff was not entitled to the relief of specific
performance.
7. Learned counsel for appellant/plaintiff has argued that once
respondent/defendant had denied the execution of agreement to sell which
stands proved, it was not open to assert that appellant/plaintiff was not ready
and willing to perform her part of agreement. The learned Trial Court ought
to have accepted the case of appellant/plaintiff and suit for specific
performance ought to have been decreed.
8. On consideration of evidence on record as well as findings
recorded by both the Courts below, I do not find any error in the
appreciation of evidence by both the Courts below. The conclusion drawn
thereupon that appellant/plaintiff had succeeded in proving due execution of
agreement dated 07.06.2011 (Ex.P1), but had failed to prove her readiness
and willingness to perform her part of the agreement is only conclusion
CHIRANJEEV SINGH
2026.09.11 17:31
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RSA-634-2021 -4-
which could be drawn from evidence of appellant/plaintiff.
9. In order to succeed in a suit for specific performance, it is
incumbent upon appellant/plaintiff to prove due execution of agreement and
his willingness to perform his part of agreement. Unless these two facts are
established, appellant/plaintiff cannot succeeded in getting specific
performance of agreement.
10. Initial onus to prove above noted two basic ingredients for
success in suit for specific performance is always upon plaintiff and it is
after said onus is discharged by plaintiff, same can be rebutted by defendant
by leading evidence contrary to evidence led by plaintiff or from the
evidence of plaintiff. However, the initial onus can never be shifted upon
defendant or can be exempted merely on proving execution of agreement to
sell. Even if in a case where defendant/seller chooses not to contest the suit
and is proceeded against ex parte or where execution of agreement to sell is
admitted by respondent/defendant, it is still incumbent upon
plaintiff/purchaser to prove his readiness and willingness before he can
succeed in a suit for specific performance. Readiness and willingness is
essential requirement to succeed in such a suit.
11. In the present case, on appreciation of evidence, it is clearly
made out that appellant/plaintiff has failed to discharge initial onus to prove
her readiness and willingness to perform her part of agreement. Admittedly,
last date agreed under the agreement to execute the sale deed was
06.06.2012. Though appellant/plaintiff had claimed that she remained
present in the office of Sub Registrar along with sale consideration and
miscellaneous charges, however, the said facts pleaded by appellant/plaintiff
CHIRANJEEV SINGH
2026.09.11 17:31
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RSA-634-2021 -5-
were not supported by any oral or documentary evidence except for her own
self-serving statement. Learned Courts below have rightly concluded that
pleadings cannot substitute evidence. No affidavit or proof that
appellant/plaintiff remained present before Sub Registrar on 06.06.2012 for
execution of sale deed has been proved on record. Even financial capacity as
on 06.06.2012 to make balance consideration of Rs.1,50,000/- and to foot
the bill of registration has not been shown or proved by appellant/plaintiff.
Rather appellant/plaintiff had relied upon Ex.P5 dated 04.05.2015 to claim
that she had remained present on 04.05.2015 in pursuance of her legal notice
Ex.P3. Furthermore, both the Courts below have duly noticed that no
evidence was placed on record by appellant/plaintiff that she was ready and
willing to perform her part of agreement w.e.f. 06.06.2012 to 16.04.2015,
when she had issued legal notice dated 16.04.2015 Ex.P3 to the
respondent/defendant for execution of sale deed. The fact that
appellant/plaintiff had remained quiet for three years and had unilaterally
selected a date for execution of sale deed after three years in fact goes to
show that she was not ready and willing to perform her part of agreement on
the day fixed for its execution as she has failed to establish her financial
capacity to pay remaining earnest money.
12. Therefore, the findings recorded by the Courts below is based
upon correct appreciation of evidence and cannot be interfered by this Court
in regular second appeal and is accordingly upheld.
13. Since appellant/plaintiff had failed to prove that she was ready
and willing to perform her part of agreement, therefore, she is not entitled to
discretionary relief of specific performance. However, I am in agreement
CHIRANJEEV SINGH
2026.09.11 17:31
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RSA-634-2021 -6-
with learned counsel for appellant/plaintiff that the Courts below ought to
have allowed lesser relief to appellant/plaintiff by allowing recovery of
earnest money.
14. In the present case, admittedly, time was not essence of
contract. At no stage, respondent/defendant had claimed that he had
cancelled the agreement and forfeited the earnest money. Rather the claim of
respondent/defendant was that no agreement was executed which was found
to be incorrect and both the Courts have found that agreement dated
07.06.2011 was duly executed by respondent/defendant. Once execution of
agreement is proved and agreement has never been cancelled, in such a
situation, where purchaser is not found entitled to relief of specific
performance, he would always be entitled to lesser relief or recovery of
amount of earnest money which he had paid to seller/defendant. Therefore,
in the present case, it is held that appellant/plaintiff though is not entitled to
specific performance of agreement, but is entitled to recovery of
Rs.1,00,000/- which she had paid as earnest money and which stands proved
before both the Courts below having been paid to respondent/defendant
along with 6% interest per annum from the date of payment till realization.
15. Appeal is partly allowed in above terms. Pending application(s),
if any, is/are disposed of accordingly.
(PARMOD GOYAL)
10.09.2026 JUDGE
chiranjeev
Whether Speaking/Reasoned : Yes
Whether Reportable : Yes/No
CHIRANJEEV SINGH
2026.09.11 17:31
I attest to the accuracy and
integrity of this document