RAKESH KUMAR GARG,J - (1.) Plaintiff -respondent filed the instant suit seeking permanent injunction restraining the appellant from alienating the shop in dispute or from creating a charge over the same alleging that appellant, who is the owner of the suit property, agreed to sell the same in his favour for a total sale consideration of Rs.12,12,500/ - and received a sum of Rs.2,00,000/ - as earnest money on 14.7.2003. The sale deed was to be executed on or before 14.10.2003 after receiving the remaining sale consideration. Further, appellant expressed his inability to execute the sale deed on the agreed date because of partition proceedings initiated by Rattan Lal brother of the appellant and Rukmani Devi including the shop in question claiming it to be joint and thus, appellant executed agreement to sell dated 09.06.2004 in favour of the respondent agreeing that both the parties will abide by the decision of the Court in the partition suit and defendant -appellant will execute the sale deed of the shop in question in favour of the plaintiff -respondent within 15 days from the decision of the suit for partition. It was further agreed that the remaining sale consideration will be paid at the time of execution of the sale deed and he will also be put in possession of the same at the same time. It was further averred that the said partition suit was still pending. Plaintiff -respondent has always been ready and still ready and willing to get the sale deed executed as per terms and conditions of agreement to sell dated 09.06.2004 but the appellant was taking hasty steps to alienate/create charge over the suit property and thus, necessity arose to file the instant suit. Upon notice, defendant -appellant appeared and filed written statement raising various preliminary objections. On merits, he admitted the ownership of the shop in question and pendency of partition proceedings. However, he specifically stated that no agreement was ever executed on 14.07.2003 and receipt of Rs.2,00,000/ - as earnest money was also denied. It was further averred that no such agreement was executed between the parties. The agreement dated 09.06.2004 is not an agreement in the eyes of law and the plaintiff -respondent has concocted a false story. Appellant was well within his rights to alienate the suit property in any manner and thus, suit was liable to be dismissed. On the pleadings of the parties, following issues were framed for consideration of this Court: - 1. Whether an agreement to sell dated 09.06.2004 was executed by the defendant in favour of the plaintiff? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the plaintiff has not come to the Court with clean hands? OPD 7. Relief.
(2.) AFTER hearing learned counsel for the parties and appraisal of the evidence, the trial Court decreed the suit vide judgment and decree dated 28.03.2012. Feeling aggrieved from the judgment and decree of the trial Court, defendant -appellant preferred an appeal before the First Appellate Court which was also dismissed vide impugned judgment and decree dated 21.11.2012. While affirming the findings of the trial Court, lower Appellate Court observed that agreement Ex.P1 was duly proved from the testimony of attesting witnesses and also from the report of hand writing expert PW5 -Gurmeet Kaur who opined that standard signatures tally with the questioned signatures. The lower Appellate Court also noticed the fact that appellant has not examined any handwriting expert to compare his signatures in spite of the fact that agreement Ex.P1 was alleged to be forged and fabricated document and thus, appellant failed to prove the alleged forgery in the execution of the agreement Ex.P1 and since the partition proceedings were also pending, plaintiff -respondent was well within his rights to seek permanent injunction restraining the appellant to create charge over the suit property. Still not satisfied, defendant has filed the instant appeal submitting that following substantial questions of law arise in this appeal: - i) Whether the impugned judgments and decrees are perverse? ii) Whether in the absence of receipt or any other document in lieu of alleged payment of huge amount of Rs.2 lacs in cash as earnest money can be said that Rs.2 lacs was paid to appellant? iii) Whether any payment made or receipt in contravention of law can be treated as valid payment? iv) Whether in a case where plaintiff miserably failed to prove the source of huge amount of Rs.2 lacs in cash as alleged earnest money can even then it can be said that huge amount of Rs.2 lacs was paid as earnest money?
(3.) IN support of his case, learned counsel for the appellant has vehemently argued that the Courts below have passed the impugned judgments and decrees wholly on flimsy ground ignoring the material evidence and misconstruing the material facts and therefore the judgments and decrees of the Courts below being perverse deserve to be set aside.;