The Courts can declare a contract vague, unenforceable and hence void even if it was beyond pleadings: High Court of Himachal Pradesh
Vague and unspecific agreements will not be legally enforceable since there is no consensus ad idem. Consequently, if the courts provide relief under Section 9 of the Specific Relief Act, 1963 by dismissing the suit even if it was beyond what was pleaded, such relief is a discretionary and equitable relief, thus is legally sustainable. This auspicious judgment was passed by the High Court of Himachal Pradesh in the matter of RAM LAL V. OM PARKASH &amp; ANR. [REGULAR SECOND APPEAL NO. 87 OF 2009] by Honourable Justice Jyotsna Rewal Dua. The suit was filed by the plaintiff for possession through the specific performance of an agreement by way of execution of sale deed. The parties to the suit had executed an agreement to sell, the consideration of sale was partly paid by the plaintiff yet the defendants did not execute the sale deed. Consequently, the plaintiff filed for recovery. The defendants admitted their joint ownership and possession over the suit land but denied execution of the agreement in question on grounds of it being a forged document not bearing their signatures. Additionally, they argued that the plaintiff provided money as a part of a Committee which was duly paid back as a result of which Learned Courts held that, “The agreement was vague document and incapable of enforcement since the plaintiff could not prove the execution of this agreement in accordance with the law.” Hence, the aggrieved plaintiff took his third chance by way of an instant regular second appeal. The High Court observed that the document was in Punjabi and ordered for it to be translated into either Hindi/English since it was a material document around which the entire case revolved. The Court then deliberated upon the questions of law as to whether specific relief can be granted under Section 9 of the Specific Relief Act, 1963. The Court relied on the case Pawan Kumar Dutt and Another Vs. Shakuntala Devi and Others (2010) 15 SCC 601 to state that, “suit for specific performance could not be decreed for want of certainty as to the description of the suit property.” As per the material on record, it was observed that “the agreement was indeed vague since neither the land in question nor the house involved has been identified in the agreement.”. Additionally, the parties had no consensus ad idem as to the area of land being sold. The Court held that “All material aspects which needed to be reflected with certainty have been left in the realms of speculation. Neither the agreement gives out a clear identity of the land nor it spells out the boundaries. Even the area of the house-subject matter of the agreement is not correctly recorded therein. No ascertainable or determinative intention can be deciphered from this agreement. Such an agreement to sell is not capable of enforcement. Its specific performance cannot be granted.” Additionally, the court in response to the plaintiff’s argument of unlawful dismissal of the suit by the lower court since grounds of dismissal was beyond pleading, relied on the Apex Courts judgement in Keshav Lal Lallubhai Patel Vs. Lalbhai Tribumlal Mills AIR 1958 SC 512 to state that, “plea raised is a plea of law based solely upon the construction of the letter which is the basis of the case for the extension of time for the performance of the contract and so it was competent to the appeal court to allow such a plea to be raised under Order 41 Rule 2 of the Code of Civil Procedure. If, on fair construction, the condition mentioned in the document is held to be vague or uncertain, no evidence can be admitted to remove the said vagueness or uncertainty.” Also, grounds for granting specific relief are discretionary and equitable relief as iterated by the SC in 2019 (3) SCC 704 titled Kamal Kumar Vs. Premlata Joshi &amp; Others, hence, “when it is unclear whether the agreement was executed in respect to the land or was in regarding sale of the house and also the terms of the agreement were unclear to one party due to language barrier the court will not evaluate the  validity of signature by seeking expert opinion since the plaintiff miserably failed to prove due execution of the agreement.”
 Hig h C o urt of H.P on 03 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 809 Reserved on: 26.03.2021 Decided on: 01.04.2021Ram lal…..Appellant plaintiff VersusOm Parkash & Anr......Respondents CoramMs. Justice Jyotsna Rewal Dua Judge.Whether approved for reporting 1 Yes.For the appellant: Mr. Y.P. Sood Advocate. For the respondents: Mr. Dheeraj K. Vashisht and Mr. ShubhamSood Advocates. Jyotsna Rewal Dua J Plaintiff has assailed the concurrent judgments and decreespassed by the learned Courts below dismissing his suit.2.Facts:2(i)Suit was filed by the plaintiff for possession through specificperformance of an agreement by way of execution of sale deed of landmeasuring 0 9 marlas out of total land measuring 3 kanal 4 marla bearingKhasra No. 1467 comprised in Khewat No. 30 min Khatauni No. 82 min situated in village Kangar Sub Tehsil Haroli Tehsil and District Una H.P.The foundational facts as set out in the plaint were that the plaintiff anddefendants had executed an agreement to sell in respect to the abovedescribed land on 6.11.1992. Out of the total agreed sale consideration ofRs. 40 000 an amount of Rs.30 000 was paid by the plaintiff to the1 Whether reporters of the local papers may be allowed to see the judgment Hig h C o urt of H.P on 03 04 HCHP 2defendants. Despite stipulation in the agreement that sale deed will beexecuted on or before 10.11.1993 the defendants did not execute the saledeed. Plaintiff has been ready and willing to perform his part of thecontract. Hence the civil suit with the above prayer was filed.Alternatively plaintiff prayed for recovery of Rs. 60 000 2(ii)Defendants though admitted their joint ownership andpossession over the suit land but denied execution of the agreement inquestion. Their stand was that the agreement dated 6.11.1992 put forth bythe plaintiff was a forged document which did not even bear theirsignatures. They also pleaded that they alongwith plaintiff were membersof a Committee in which the plaintiff had contributed Rs.28 000 . TheCommittee failed and plaintiff started demanding his money back from thedefendants. Defendants expressed their inability to pay the amount in lumpsum. In this regard plaintiff also moved an application before Police PostHaroli. Eventually defendants paid Rs.30 000 to the plaintiff on receiptsagainst due amount of Rs.28 000 .2(iii)After considering the pleadings and the evidence adduced bythe parties both the learned Courts below concurrently held that theagreement dated 6.11.1992 was a vague document and incapable ofenforcement. It was also held that the plaintiff could not prove theexecution of this agreement in accordance with law. Aggrieved theplaintiff is now taking his third chance by way of instant regular secondappeal. Hig h C o urt of H.P on 03 04 HCHP 33(i).This second appeal was admitted on 6.3.2009 on followingsubstantial questions of law: “1. Whether the courts below have misread and misinterpreted theagreement to sell Exhibit PW 1 A inasmuch as it clearly identifies theproperty subject matter of agreement to sell and the findings thusrecorded are vitiated 2.Whether the courts below were wrong in dismissing the suit forspecific performance by holding it to be hit of Section 9 of the SpecificRelief Act and Section 29 of the Indian Contract Act in the absence ofany such plea raised by the respondents in the written statement and thefindings thus recorded are beyond pleadings 3.Whether the courts below have misread and mis appreciated thestatements of PW 1 and PW 2 and the findings thus recorded arevitiated ”3(ii).During hearing of the instant appeal on 4.3.2021 it wasnoticed that the original agreement dated 6.11.1992waswritten in Punjabi script. Its translation either in Hindi or in English wasnot available in the records of learned Courts below. Since it was amaterial document around which entire case revolved therefore on4.3.2021 the Registry was directed to get this document translated inHindi English from the Official Translator. The English translation of thisagreementhas now been supplied by the Official Translator.The contents of the agreement to sell dated 6.11.19992astranslated by the Official Translator reads as under: “That we Om Parkash and Malkiat Singh Sons of Mansa Ram R oVillage Kangar Tehsil Haroli District Una Himachal Pradesh presently residing at Delhi road Nandpur Tehsil and DistrictLudhiana do hereby agree to sell a ‘Kutcha’ house under ourowernship and possession compromised in an area measuring around5 biswa at Kangar Tehsil Haroli District Una in favour of VendeeRam Lal S o Banta Singh S o Nandu Ram R o Kangar Tehsil Haroli District Una presently residing at Delhi Road Sahnewal Tehsil andDistrict Ludhiana for the consideration of Rs.40 000 half of which is Rs.15 000 in cash as earnest money weagree to get the same deed registered by appearing before the Sub Hig h C o urt of H.P on 03 04 HCHP 4Registrar Haroli District Una on or before 10.11.1993 and shallreceive the remaining amount accordingly. There shall be no objection.Revenue papers regarding Khasra Number etc. of the house shall beproduced at the time of Registration. Failing which we shall paydouble the amount of earnest money and in case the vendee does notexecute the sale agreement the earnest money shall stand forfeited.This agreement has been reduced into writing for the purpose of record.Dated 6.11.1992.Executants VendeeWitnessSdSdSdthe written statement dated17.8.1996 in his examination in chief by way of affidavit dated9.4.2003 andin an another agreement dated 26.8.1992 Ext. DW1 Awith respect to return of Rs.28 000 to the plaintiff. Whereas in thedisputed agreementhis signatures appear as ‘Malkit Singh’. Hig h C o urt of H.P on 03 04 HCHP 65.Observations:5(a)Questions of law No.1:5(a)(i)As per Section 29 of the Indian Contract Act 1872 ‘agreements’ the meaning of which is not certain or capable of beingmade certain are void. Section 9 of the Specific Relief Act 1963 entitlesthe defendant to plead by way of defence any ground available to himunder law relating to the contracts where relief of specific performance ofcontract is claimed under Chapter II of the Act. Before adverting toquestion of law it would be appropriate to first notice the precedents inrespect of specific performance of valid enforceable contracts as also inrespect of defective contracts. 5(a)(ii)Hon’ble Apex Court in4 SCC 352 titledSatish Kumar Vs Karan Singh & Anr. held that the jurisdiction to orderspecific performance of contract is based on the existence of a valid andenforceable contract. Where a valid and enforceable contract has not beenmade the Court will not make a contract for the parties. Specificperformance will not be ordered if the contract itself suffers from somedefect which makes it invalid or unenforceable. The discretion of the Courtwill not be there even though the contract is otherwise valid andenforceable. In this regard it is apposite to extract relevant paragraphs ofthis judgment: “8 It is well settled that the jurisdiction to order specific performance ofcontract is based on the existence of a valid and enforceable contract.Where a valid and enforceable contract has not been made the Courtwill not make a contract for them. Specific performance will not be Hig h C o urt of H.P on 03 04 HCHP 7ordered if the contract itself suffers from some defect which makes thecontract invalid or unenforceable. The discretion of the Court will notbe there even though the contract is otherwise valid and enforceable.9 This Court in Mayawanti vs. Kaushalya Devi 1990 3 SCC 1 heldthus: "8. In a case of specific performance it is settled law and indeed itcannot be doubted that the jurisdiction to order specificperformance of a contract is based on the existence of a valid andenforceable contract.The Law of Contract is based on the ideal offreedom of contract and it provides the limiting principles withinwhich the parties are free to make their own contracts. Where avalid and enforceable contract has not been made the court will notmake a contract for them. Specific performance will not be orderedif the contract itself suffers from some defect which makes thecontract invalid or unenforceable. The discretion of the court will bethere even though the contract is otherwise valid and enforceableand it can pass a decree of specific performance even before therehas been any breach of the contract. It is therefore necessary firstto see whether there has been a valid and enforceable contract andthen to see the nature and obligation arising out of it. The contractbeing the foundation of the obligation the order of specificperformance is to enforce that obligation."10 Exercise of discretionary power under Section 20 of the SpecificRelief Act for granting a decree this Court in the case ofParakunnan Veetill Josephs Son Mathew vs. Nedumbara KuruivilasSon and others 1987 AIR(SC) 2328 observed: "14. Section 20 of the Specific Relief Act 1963 preservesjudicial discretion of courts as to decreeing specificperformance. The court should meticulously consider all factsand circumstances of the case. The court is not bound togrant specific performance merely because it is lawful to doso. The motive behind the litigation should also enter into thejudicial verdict. The court should take care to see that it is notused as an instrument of oppression to have an unfairadvantage to the plaintiff. The High Court has failed toconsider the motive with which Varghese instituted the suit. Itwas instituted because Kuruvila could not get the estate andMathew was not prepared to part with it. The sheet anchor ofthe suit by Varghese is the agreement for sale Exhibit A 1.Since Chettiar had waived his rights thereunder Varghese asan assignee could not get a better right to enforce thatagreement. He is therefore not entitled to a decree forspecific performance.5(a)(iii)(2010) 15 SCC 601 titled Pawan Kumar Dutt andAnother Vs. Shakuntala Devi and Others was a case where the TrialCourt held that the suit for specific performance could not be decreed for Hig h C o urt of H.P on 03 04 HCHP 8want of certainty as to description of suit property. The First Appeal filedby the plaintiff was also dismissed. The High Court did not find any validground to take a different view on the concurrent findings of fact recordedby both the Courts below. The Hon’ble Apex Court held that ‘Courts arenot expected to pass a decree which is not capable of enforcement incourts of law’. If a decree is to be granted for specific performance without identification of the suit property it will not be possible to enforcesuch a decree. The relevant para from the judgment which also notices theagreement specification is extracted hereinafter: “7.But the position in the present case is different that a portion out ofthe total larger extent was agreed to be sold but without specificationof the area agreed to be sold. It is clear from the suit agreement that noboundaries of the suit property which was sold are specified in theagreement. It is not clear from what point the area is to be measured. Itis also not clear that these 4 bighas 2 biswas is a portion of the landsituated in the middle of the total land or in one portion or at theextreme end or at a particular place in other words there is no clearidentity of the property agreed to be sold. The Courts are not expectedto pass a decree which is not capable of enforcement in the courts oflaw. If the argument of the learned counsel for the appellants is to beaccepted and if a decree is to be granted for specific performance without identification of the suit property it will not be possible toenforce such a decree.”5(a)(iv)In the instant case agreement to sell refers to a ‘Kutchahouse’ allegedly owned and possessed by the defendants in an area ofaround 5 biswa at Kangar Tehsil Haroli District Una with further riderthat revenue papers regarding Khasra number etc. of the house would beproduced at the time of registration of sale deed. Neither the land inquestion nor the house involved has been identified in the agreement. Nokhasra number finds mentioned in the agreement. The extent of the areaalleged to have been sold by the defendants in the agreement is around 5 Hig h C o urt of H.P on 03 04 HCHP 9biswa whereas the plaint talks about land measuring 0 9 marlas out oftotal land measuring 3 kanals and 4 marlas comprised in specific khasranumbers. Alongwith plaint a site plan depicting the land referred to in theplaint has also been appended. The plaint is definitely an improvementover the agreement to sell in respect of identity of land house. Defendantsin their written statement have admitted their joint ownership & possessionover the suit land as well as of the house. By relying upon the revenuerecords they submit that they arejoint owners over the suit land alongwith others. It is further their case thatthey have never executed the agreement in question. Be that as it may.The fact remains that the agreement to sell dated 6.11.1992 is vague. Itdoes not reflect clear intention of the executants as to what was beingagreed to be sold under the agreement. All material aspects which neededto be reflected with certainity have been left in the realms of speculation.Neither the agreement gives out clear identity of the land nor it spells outthe boundaries. Even the area of the house subject matter of theagreement is not correctly recorded therein. No ascertainable ordeterminative intention can be deciphered from this agreement. Such anagreement to sell is not capable of enforcement. Its specific performancecannot be granted. The judgments cited by learned counsel are based uponfacts of individual cases. Substantial question of law No.1 answered accordingly. Hig h C o urt of H.P on 03 04 HCHP 105(b) Question of Law No.2: Section 29 of Indian Contract Act entitles a defendant toavoid an agreement if the same is void. Also the defendant is entitled totake the defence of vagueness & void nature of the agreement in order toavoid its specific performance under Section 9 of the Specific Relief Act.Such a defence would essentially revolve around frame of the agreementand its logical interpretation in the facts of the case. Agreement beingvague & therefore un enforceable is a plea which can be raised by thedefendants even without specifically expressing it in the written statement.In 2019Scale 131 titled Tilak Raj Bakshi Vs. Avinash ChandSharmathrough LRs & others the Apex Court was inter aliaconsidering two questions viz i) whether the High Court was right in without even a plea holding that the family settlement is vague andunenforceable and void ii) Whether the High Court was right in holdingthat the Courts could not exercise discretion under Section 20 of theSpecific Relief Act 1963 as the contract is not specifically enforceable.While answering the question the Court reiterated the observation of ApexCourt in AIR 1958 SC 512 titled Keshav Lal Lallubhai Patel Vs. LalbhaiTribumlal Mills: 20. The question is not res integra. A Bench of three learned Judges ofthis Court considered the very same question in Keshavlal LallubhaiPatel Vs. LalBhai Trikumlal Mills Lts held as follows:“10. There is one more point which must be considered. It wasstrongly urged before us by the appellants that in the trialcourt no plea had been taken by the respondent that theagreement for the extension of time was vague and uncertain. Hig h C o urt of H.P on 03 04 HCHP 11No such plea appears to have been taken even in the groundsof appeal preferred by the respondent in the High Court atBombay but apparently the plea was allowed to be raised inthe High Court and the appellants took no objection to it atthat stage. It cannot be said that it was not open to the HighCourt to allow such a plea to be raised even for the first timein appeal. After all the plea raised is a plea of law basedsolely upon the construction of the letter which is the basis ofthe case for the extension of time for the performance of thecontract and so it was competent to the appeal court to allowsuch a plea to be raised under Order 41 Rule 2 of the Code ofCivil Procedure. If on a fair construction the conditionmentioned in the document is held to be vague or uncertain no evidence can be admitted to remove the said vagueness oruncertainty. The provisions of Section 93 of the IndianEvidence Act are clear on this point. It is the language of thedocument alone that will decide the question. It would not beopen to the parties or to the court to attempt to remove thedefect of vagueness or uncertainty by relying upon anyextrinsic evidence. Such an attempt would really mean 4 AIR1958 SC 512 the making of a new contract between theparties. That is why we do not think that the appellants cannow effectively raise the point that the plea of vaguenessshould not have been entertained in the High Court.”(Emphasis supplied)21. Therefore the mere fact that a plea is not taken that the clause inquestion is vague and hence unenforceable and void will not stand inthe way of the Appellate Court looking into the contract and if on itsterms it finds it to be vague and unenforceable it can be so held.”Reference in this regard can also be made to AIR 1990Kerala 198 titled K.G. Balakrishnan J. titled Kandamath CineEnterprisesLtd. Vs. John Philipose. Relevant paragraphs whereofare extracted as under: “6. The next contention urged by the appellant s counsel is that theterms of Ext. Al are vague and uncertain and therefore it is notenforceable in view of Section 29 of the Contract Act. The contention ofthe appellant is that the description of the property to be sold is notmade clear and it is so vague and uncertain. At the outset I may pointout that this plea was not raised before the Court below. No such pleawas raised in the written statement. Moreover the defendant companyreceived Rs. 10 000 as per Ext. Al receipt and therefore received theentire balance consideration as evidenced by Ext.Al endorsement andthe two cheques issued in favour of the defendant. At no point of timethe defendant expressed the view that the terms of Ext Al was vague anduncertain and hence unenforceable. However I am of the view that theappellant is entitled to raise this plea since it is a question of law. Hig h C o urt of H.P on 03 04 HCHP 127. The plea that a particular contract is void for uncertainty underSection 29 of the Contract Act is a question of law and if the terms ofthe contract are vague and uncertain the contract itself would be voidand unenforceable under Section 29 of the Contract Act and that will gointo the root of the matter and therefore it is a plea that could be raisedeven at the appellate stage. This view has been exemplified byauthorities in Phuljhari Devi v. Mithai Lal AIR 1971 All 494 Keshavalal v. Lalbhai T. Mills Ltd. AIR 1958 SC 512 at page 517.8. The learned counsel for the appellant further contended that if theterms of the contract are uncertain no evidence can be admitted toremove the said vagueness or uncertainty in view of Section 93 of theEvidence Act. It is true that if any of the terms of the document is clearlyuncertain and incapable of being made certain it may not be open to theparties to attempt to remove that vagueness or uncertainly by adducingother evidence. The learned counsel for the appellant points out that aCommission was taken out in this case to identify the plaintiff s propertyand the Commissioner prepared Ext. C2(a) plan and he has identifiedthe property as plot "CXJK". The Commissioner identified the |plot withreference to Ext. Al agreement. It is incorrect to say that theCommission was taken out to identify the property as the recital in Ext.Al was too vague and uncertain. The entire 5 acres and 2 cents of landwas lying on the northern side of the public road leading to EngineeringCollege. There is a by lane on the western side of the property. Thisbylane is being used by people residing on the further north of thedefendant s property. It is an undisputed fact that the main public road ison the southern side of the property. When the parties described theproperty as "1 acre of front land" it clearly means 1 acre of the propertylying on the northern side of the Engineering College road. It is difficultto interpret that 1 acre of front land intended by the parties was on theextreme northern side of the entire property or the property lying on theeast of the western pathway. From the lie of the property and theexistence of the southern public road it is clear and certain that the 1acre of land intended to be sold was "CXJK" in Ext. C2(a) plan. It isimportant to note that the defendant on the date of the agreementreceived Rupees 10 000 and after two months he received the balanceconsideration. Thus the defendant accepted several payments towardsthe agreement without any protest and he acted on the agreement. At nopoint of time the defendant contended that the terms of the agreementare vague and uncertain and the plaintiff is not entitled to enforce theagreement. PW1 the father of the plaintiff who acted on behalf of theplaintiff and DW1 the Managing Director of the defendant company arewell educated and they knew each other for a number of years.According to P. W.I he visited the property several times in the companyof DW1 and fully satisfied about the identity of the property”.Question of law No.2 is answered accordingly. Hig h C o urt of H.P on 03 04 HCHP 135(c)Question of law No.3 In 2019SCC 704 titled Kamal Kumar Vs. PremlataJoshi & Others the Hon’ble Apex Court held that the grant of specificperformance is a discretionary and equitable relief and laid down followingmaterial questions required to be gone into for grant of relief of specificperformance “7.1.First whether there exists a valid and concludedcontract between the parties for sale purchase of the suit property 7.2.Second whether the plaintiff has been ready andwilling to perform his part of contract and whether he is still ready andwilling to perform his part as mentioned in the contract 7.3Third whether the plaintiff has in fact performed hispart of the contract and if so how and to what extent and in whatmanner he has performed and whether such performance was inconformity with the terms of the contract 7.4.Fourth whether it will be equitable to grant the reliefof specific performance to the plaintiff against the defendant in relationto suit property or it will cause any kind of hardship to the defendant and if so how and in what manner and the extent if such relief is eventuallygranted to the plaintiff 7.5.Lastly whether the plaintiff is entitled for grant of anyother alternative relief namely refund of earnest money etc. and if so on what grounds.”Defendants have denied executing the agreement dated 6.11.1992. Theirstand is thatis a forged document which does not bear theirsignatures. With the assistance of learned counsel for the parties I havegone through the evidence on record. To prove this agreement plaintiffexamined three witnesses. PW 1 Mohd. Iqbal was not even clear as towhether the agreement was executed in respect to the land or was inregarding sale of house. He was also appears to be confused as to whetherhe knew Punjabi language or not. The agreement was scribed in Punjabi Hig h C o urt of H.P on 03 04 HCHP 14language. He stated that the stamp paper was brought by defendant No.2Om Prakash and the agreement was scribed by Mewa Singh at around 1.02P.M. at Dana Mandi on 6.11.1992. Agreement thereafter was read out byMewa Singh for the benefit of all. He himself did not read theagreement. His given version of residence of defendants at the time ofalleged execution of the agreement is at variance with the version of theother witnesses of the plaintiff. PW 2 Mewa Singh the scribe did notproduce the deed writer register. The stamp vendor was not examined bythe plaintiff. Defendant No.2 Malkit Singh while appearing inexamination in chief stated that Ext. PW1 A dated 6.11.1992 was aforged document and never executed by the defendants. This witness wasnot at all cross examined by the plaintiff in respect of the valid executionof the agreement. No suggestion was given to this witness by the plaintiffthat he had executed the agreement. Burden of proving due execution ofthe agreement was on the plaintiff which he failed to discharge. Under thecircumstances there was hardly any necessity for expert opinion aboutsignatures on the document. In this regard it is apposite to refer to AIR2016 Karnataka 192 titled Sayed Moinuddin Vs Md. Mehaboob Alamand others. Relevant paragraphs are extracted hereinafter: “11. So looking to this oral evidence of plaintiff as well as the witnesseson the side of the plaintiff which has been observed by the Trial Courtthat firstly the identity of the property is not clearly established as thereare no boundaries mentioned in any of three documents. Not only thateven with regard to exact property number there is no consistent andacceptable evidence on the side of the plaintiff. Looking to thedocuments produced by the plaintiff regarding number of the propertyold as well as new one. Therefore the Trial Court comes to theconclusion that the plaintiff failed to prove the agreements Ex.P 1 to P Hig h C o urt of H.P on 03 04 HCHP 153 with acceptable evidence. Accordingly the suit was dismissed. Whenthe matter taken up before the first Appellate Court the first AppellateCourt after re appreciating the materials on record it also comes to theconclusion that the dismissal of the suit is in accordance with law andno illegality has been committed by the Trial Court.13 When it is definite case of the plaintiff that agreement of sale isattested by the witnesses and witnesses have been examined before theTrial Court. The scribe of the document is also examined before theTrial Court and their evidence is appreciated by the Trial Court thequestion of sending the document for expert opinion does not arise atall. Getting opinion of the expert is when there are no means to provethe document then in that case as a last resort the Court has to referthe document for expert opinion and expert opinion it is opinionevidence. When there are direct witnesses to the documents i.e. attesting witnesses and the scribe of the document. When their evidenceis not acceptable and trustworthy the contention of the appellant beforethis Court cannot be accepted that it is to be sent for expert s opinion.No grounds in this Regular Second Appeal. Perusing the entirematerials placed on record I am of the opinion that no substantialquestion of law involved in this appeal. There is no merit in this appeal.Accordingly the appeal is dismissed in the admission stage itself.Consequently the application I.A. No.1 2015 is also dismissed.”Plaintiff miserably failed to prove due execution of theagreementis vague &void therefore not capable of being enforced. Plaintiff even otherwise hasfailed to prove its execution by the defendants in accordance with law. Nointerference in concurrent dismissal of plaintiff’s suit by the learned Courtsbelow is called for. Hence the appeal is dismissed. Pending application(s) if any also stand disposed of accordingly. Jyotsna Rewal Dua Judge 1st April 2021 