MOHD. YUNUS Vs. RAMESH CHOUKSEY

JUDGEMENT

(1.) IN this appeal Defendant calls in question the validity of Plaintiff/Respondent filed the instant suit for specific performance of an agreement to sale dated 14 -6 -1991 with espect to property situated at Mutton Market, Sadar Bazar. The area of the land was 3645 sq.ft. consisting of house and dairy. The property was purchased by the Defendant from Ms. Jeenat Usmani on 26 -8 -1987. Plaintiff claimed that on 14 -6 -1991 the Defendant had agreed to sell the immovable property for a consideration of Rs. 1 lakh. Rs. 90,000/ - was paid to the Defendant by way of earnest money at the time of execution of agreement on 14 -6 -1991. Rs. 10,000/ - was to be paid at the time of registration of sale -deed. Plaintiff was ready and willing to perform his part of contract. However, Defendant did not hand over the vacant possession of disputed property neither executed the sale -deed, in spite of notice dated 9 -12 -1992. Consequently, suit was preferred.

(2.) DEFENDANT in the written statement contended that the agreement was forged and fabricated. No such agreement was entered into. Consideration of Rs. 90,000/ - was not received. Signatures of the Defendant on the agreement were forged. Defendant used to sign in Urdu language. Plaintiff had forged documents in order to grab the property by dishonest means. For filing false and frivolous suit costs of Rs. 2,000/ - be awarded under Section 35A, Civil Procedure Code.

(3.) SHRI Girish Shrivastava appearing with Shri Vijayraghav Singh on behalf of the Appellant has submitted that the evidence is at variance from the pleadings. Plaintiff has come to Court with the case that the agreement was executed on 14 -6 -1991 whereas the evidence indicates that some other agreement was entered into earlier, consideration of Rs. 50,000/ - has been paid on the date of execution of earlier agreement and on the date of execution of agreement on 14 -6 -1991, only part of consideration of Rs. 40,000/ - was paid. The evidence is at variance from pleadings. He has further submitted that the signatures of the Defendants are forged is apparent from expert report. He has further pointed out that even a bare look of the agreement makes it crystal clear that the signatures have been forged. Pen pressure, speed indicates that the signatures have been copied. The report of expert; Madan Mohan Kakkad (D.W. -4) is reliable. Report of an expert examined by the Plaintiff Shri K.R. Pille (P.W. -4) is not reliable. Credentials of Shri K.R. Pille have been adversely commented by this Court in several decisions. Passing of consideration has not been proved. Shri Khandelwal, Advocate has not been examined. Findings recorded by the trial Court are perverse. The approach of trial Court discarding an expert report of M.M. Kakkad is impermissible. An expert examined by the Defendant had also compared the signatures of the Defendant which were in the bank documents. Similarly the expert examined by the Plaintiff had also compared the signatures of the Defendant on the bank documents with the disputed signatures, as such double standard has been applied by the trial Court.