R.S.A.No. 91 of 1988(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 91 of 1988(O&M) Date of decision: 7.4.2011 Teja Singh ......Appellant Versus Roshan Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.K.G.Chaudhary, Advocate, for the appellant. Mr. R.L.Batta, Sr.Advocate with Mr.Nikhil Batta, Advocate, for respondent. **** SABINA, J. Plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 29.9.1980. The case of the plaintiff, in brief, was that the defendant had agreed to sell the suit land to the plaintiff on 29.9.1980 for a consideration of ` 13,268/-. ` 1,000/- were paid towards earnest money at the time of execution of the agreement to sell in question. R.S.A.No. 91 of 1988(O&M) 2 The sale deed was to be executed on or before 1.7.1981. The plaintiff had always been ready and willing to perform his part of the contract but the defendant had failed to get the sale deed executed in favour of the plaintiff. Defendant, in his written statement, denied the execution of the agreement to sell in question. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the suit in the present form is not maintainable as khata of the land in dispute is joint and has not yet been partitioned? OPD. 2. Whether the suit is time barred ? OPD 3. Whether the defendant executed an agreement dated 29.9.1980 in favour of the plaintiff for valid consideration and received ` 1,000/- as earnest money? OPP 4.Whether the plaintiff has always been ready and willing to perform his part of the agreement and is ready to do so on payment of remaining sale consideration ? OPP 5. Whether the plaintiff is entitled to possession of suit land ? OPP 6. Whether the alternative the plaintiff is entitled to recovery of ` 2,000/- as damages from the defendant ? OPP 7. Relief.” The Additional Senior Sub Judge partly decreed the suit of the plaintiff vide judgment and decree dated 21.7.1986 for R.S.A.No. 91 of 1988(O&M) 3 recovery of the earnest money. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was allowed vide judgment and decree dated 2.12.1987 passed by the Additional District Judge and suit of the plaintiff for possession by way of specific performance of the agreement to sell in question was decreed. Hence, the present appeal by the defendant. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Learned counsel for the appellant has submitted that the plaintiff had failed to establish that he was always ready and willing to perform his part of the contract. Moreover, the suit had been filed after two years and eleven months of the accruence of cause of action. Hence, the suit for specific performance of agreement to sell was liable to be dismissed. In support of his arguments, learned counsel has placed reliance on Motilal Jain vs. Smt.Ramdasi Devi and others AIR 2000 SC 2408, wherein it was held as under:- “It may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property: (i) Delay running beyond the period prescribed under the Limitation Act; (ii) Delay in cases where though the suit is within the period of limitation, yet : (a) due to delay the third parties have acquired rights in the subject-matter of suit; (b) in the facts and circumstances of the case, delay R.S.A.No. 91 of 1988(O&M) 4 may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief.” Learned counsel for the respondent, on the other hand, has submitted that the plaintiff had successfully established that he was ready and willing to perform his part of the contract. The plaintiff had appeared before the Sub Registrar on the date fixed for execution of the sale deed but the defendant had failed to appear. The question that requires consideration in the present appeal is as to whether the plaintiff was ready and willing to perform his part of the contract. The agreement to sell in question Ex.P-1 was executed on 29.9.1980. Ex.P-2 is the application moved by the plaintiff to Tehsildar, Gurdaspur for marking his presence on 1.7.1981. As per the said application, the plaintiff had appeared before the Tehsildar to perform his part of the contract. There is nothing on record to the contrary to establish that in fact the plaintiff had not appeared before the Sub Registrar on the stipulated date or that the defendant had remained present in the office of Sub Registrar but the plaintiff had failed to appear. In these circumstances, the learned first Appellate Court rightly held that the suit of the plaintiff for specific performance of agreement to sell in question was liable to be decreed. Merely because the plaintiff had filed the suit on 13.6.1984, although the sale deed was to be executed on 1.7.1981, in the facts and circumstances of the case, does not lead to the inference that the plaintiff had waived his right qua the relief sought by him in the suit. In these circumstances, the judgment relied upon by the learned R.S.A.No. 91 of 1988(O&M) 5 counsel for the appellant fails to advance the case of the appellant. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE April 07, 2011 anita