IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 385/2009 Reserved on:22.12.2010 Decided on:5.1.2011 ________________________________________________ Smt. Naurjala alias Nirjla Devi. …Appellant. Versus Mahesh Kumar and another. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. S.D. Gill, Advocate. For the Respondents :Mr. Neeraj Gupta, Advocate. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 19.6.2009 passed by the learned Additional District Judge, Fast Track Court, Hamirpur in Civil Appeal No.60 of 2008. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that Mahesh Kumar and The Parkash (hereinafter referred to as ‘plaintiffs’ for convenience sake) instituted a suit under sections 5 and 15 of the Specific Relief Act 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 and sections 9 and 26 read with order 7 rule 1 of the Code of Civil Procedure for possession by specific performance of contract dated 2.12.1996, extended from 25.11.1997 to 31.12.1998 and from 31.12.1998 to 31.12.1999 with respect to land comprised in Khata No. 120 min, Khatauni No. 135 min, Khasra No. 1396/958 measuring 2 kanals 9 marlas situated in Mauza Mati Morian, Tehsil and District Hamirpur (hereinafter referred to as ‘the suit land’) on payment of balance consideration of Rs. 40,000/-. According to the plaintiffs, the suit land is recorded in the ownership and possession of appellant-defendant (hereinafter referred to as ‘defendant’ for convenience sake). Defendant on 2.12.1996 entered into an agreement to sell the suit land in writing in favour of plaintiffs for a consideration of Rs. 90,000/-. Plaintiff No.1 purchased 4/5th share whereas plaintiff No.2 purchased 1/5th share of the suit land and defendant agreed to execute sale deed on or before 30.11.1997. A sum of Rs. 50,000/- was paid on 2.12.1996 and the remaining amount was agreed to be paid at the time of execution and attestation of sale deed. Plaintiffs were ready and willing to pay the balance amount of sale consideration, i.e. Rs. 40,000/- and to pay the price of stamp papers and registration but the defendant was not ready and willing to perform her part of contract. She requested for the 3 extension of time and the period was extended from 30.11.1997 to 31.12.1998 on 25.11.1997 by writing in the presence of witnesses. Thereafter defendant again sought time on 17.12.1998 in writing for extending period from 31.12.1998 to 31.12.1999. The legal notices were issued by the plaintiffs to defendant on 4.2.2000 vide separate postal receipts. 3. The suit was contested by the defendant. Case of the defendant, in a nutshell, is that she did not execute agreement to sell and the question of sale deed or balance amount does not arise at all. 4. The trial court framed the issues. The trial court decreed the suit for specific performance of contract dated 2.12.1996 on payment of balance sale consideration of Rs. 40,000/- within a period of one month from the date of passing of the judgment. Defendant preferred an appeal before the learned Additional District Judge, Fast Track Court, Hamirpur. He dismissed the same. Hence, the present Regular Second Appeal. The same was admitted on the following substantial questions of law: 1. Whether the appellant/defendant entered into an agreement with the respondents/plaintiffs to sell the suit property on 2.12.1996? 2. Whether the agreement executed is legally enforceable? 4 3. Whether the learned courts below had ignored the important oral and documentary evidence? 4. Whether the findings of the learned lower courts below are recorded inferentially and without any basis? 5. Whether the learned courts below misconstrued the pleadings and evidence of the parties resulting thereby in erroneous judgment which is unsustainable in the eyes of law? 5. Mr. S.D. Gill has strenuously argued that the judgments and decrees of both the courts below are contrary to principles of law. According to him, there is misreading of evidence by both the courts below. 6. Mr. Neeraj Gupta has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and perused the record carefully. 8. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. Plaintiff No.2 has examined himself as PW-1. He has testified that agreement to sell was entered into with the defendant for sale consideration of Rs.90,000/-. A sum of Rs. 50,000/- was paid to her on the date of execution of agreement. 5 Remaining Rs. 40,000/- was to be paid at the time of registration of sale deed on 30.11.1997. She sought extension of time upto 31.12.1998. 10. PW-2 is Milap Chand, Document Writer. He has scribed agreement Ex.PW-2/A. According to him, a sum of Rs. 50,000/- was received by the defendant for the suit land. PW-3 is Gurdev, Stamp Vendor. According to him on 2.12.1996, the stamp paper of Rs. 10/- was purchased by the defendant in her name and she appended her signatures on the register as well as on the stamp paper in English. PW-4 is Baldev Singh, who has scribed the agreement Ex.PW-3/A and Ex.PW-3/B about extension of time in the presence of both the parties. PW-5 Krishan Lal Chopra is the father of plaintiff No.2. He has deposed that he alongwith his son had gone to execute agreement to sell Ex.PW-2/A. They were ready and willing to execute the sale deed but defendant prayed for extension of time on the basis of Ex.PW-3/A and Ex.PW-3/B. In his cross- examination, he deposed that out of Rs. 50,000/-, Rs. 25,000/- was given by plaintiff No.1, Rs. 15,000/- by plaintiff No.2 and rest of Rs. 10,000/- was given by him. PW-6 is Kishore Kumar. He is marginal witness of Ex.PW-2/A. He has deposed that agreement to sell was prepared at the instance of defendant on 6 2.12.1996. It was read over to defendant and she signed the same after considering it to be true. 11. DW-1 is the defendant. According to her, she had borrowed a sum of Rs. 20,000/- from father of plaintiff No.2 and had undertaken to give back Rs. 50,000/- after one year. The money was required by her for the marriage of her husband’s sister. According to her, no agreement was entered with the plaintiffs. She has pleaded her ignorance about the purchase of stamp paper by her. 12. What emerges from the evidence brought on record by the parties is that agreement to sell was entered into between the plaintiffs and defendant; vide Ex.PW-2/A. The defendant has received a sum of Rs. 50,000/- from the plaintiffs. The period of agreement for execution of sale deed was enlarged by the defendant, as per Ex.PW-3/A and Ex.PW-3/B. The agreements with regard to the extension of time were made on 25.11.1997 and 17.12.1998. These instruments were duly signed by the defendant. 13. Mr. S.D. Gill has strenuously argued that though the case of the defendant was that no agreement, i.e. Ex.PW-2/A was entered into between the parties, however, he has strenuously argued that as per one of the clauses of the agreement, double of the amount of the earnest money was to 7 be paid to the plaintiffs in case of default. This plea cannot be accepted. It is evident from agreements Ex.PW-3/A and Ex.PW- 3/B dated 25.11.1997 and 17.12.1998 that the execution of the sale deed was to be done on or before 31.12.1998 and thereafter on or before 31.12.1999 at the instance of defendant. These agreements for extension of time were signed by the defendant. In view of the extension of period, defaulting clause was rendered otiose. The plaintiffs have only instituted suit for specific performance of the contract and not payment of double the amount, as per defaulting clause. They were always ready and willing to perform their part of agreement by paying balance amount of sale consideration, i.e. Rs. 40,000/- to the defendant. In fact, the defendant has repeatedly sought time, as discussed hereinabove. 14. Accordingly, in view of the observations made hereinabove, there is no substantial question of law involved in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Rajiv Sharma), J. 5.1.2011. *awasthi*