R. S. A. No. 1834 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1834 of 2011 Date of Decision : May 17, 2011 Ved Parkash .... Appellant Vs. Brij Bhushan .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Ajay Kaushik, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Plaintiff Ved Parkash having failed in both the courts below has filed the instant second appeal. Plaintiff-appellant filed suit for possession of 04 kanals 08 marlas land in suit, being 1/4th share of 17 kanals 11 marlas land, by specific performance of the agreement to sell dated 01.04.1980, alleging that the plaintiff and defendant along with Surender Kumar and Parmanand were co- sharers in the aforesaid total land to the extent of 1/4th share each. All the other three co-sharers including the defendant agreed to sell their 1/4th share each to the plaintiff vide agreement dated 01.04.1980 for total R. S. A. No. 1834 of 2011 2 consideration of Rs.28,000/-, out of which sale consideration of the defendant's share was Rs.18,500/-, sale consideration of Surender Kumar's share was Rs.5,750/- and sale consideration of Parmanand's share was Rs.3,750/-. Parmanand and Surender Kumar have already transferred their shares in favour of the plaintiff by way of Civil Court decree dated 08.03.1989. However, the defendant, in spite of having received the entire sale consideration of Rs.18,500/- of his share on 25.08.1982, failed to execute the sale deed of his share in favour of the plaintiff, thereby committing breach of the agreement. It was pleaded that the plaintiff is ready to perform his part of the contract, but the defendant refused to execute the sale deed. It was also pleaded that suit land has since been acquired by the State Government, and therefore, plaintiff is entitled to receive compensation of the acquired land from the State Government. The defendant inter alia pleaded that no consideration was paid to him by the plaintiff for sale of the suit land. The plaintiff himself did not perform his part of the contract. Some other tubewell, building structure etc. belonging to the parties and other share-holders were sold for Rs.1,30,000/- through another agreement of sale dated 01.04.1980. Defendant's share in the said consideration came to Rs.32,500/-. Plaintiff paid the said amount of Rs.32,500/- on 25.08.1982 to the defendant and no consideration was paid for the impugned agreement. Various other pleas were also raised. R. S. A. No. 1834 of 2011 3 Learned Additional Civil Judge (Senior Division), Safidon, vide judgment and decree dated 25.11.2009, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Jind, vide judgment and decree dated 16.12.2010. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Impugned agreement is dated 01.04.1980 and as per recital in the agreement, sale deed was to be executed up to 02.04.1981 on payment of sale consideration. The instant suit was filed on 18.08.2004 i.e. more than 24 years after the execution of the impugned agreement and more than 23 years after the date stipulated in the agreement for execution of the sale deed. Consequently, the suit is hopelessly barred by limitation, as rightly held by the courts below. To wriggle out of this situation, learned counsel for the appellant referred to Article 54 of the Schedule to the Limitation Act, 1963 to contend that limitation period commenced when plaintiff had notice of refusal of performance and since the defendant refused to perform the agreement, pursuant to notice issued by the plaintiff in October 2003, the suit is within limitation. The contention is completely misconceived. While advancing this contention, learned counsel for the appellant has completely ignored first part in Column III of Article 54 of the Schedule to Limitation R. S. A. No. 1834 of 2011 4 Act. The said Article 54 is reproduced hereunder :- “Description of Suit Period of Time from which period limitation begins to run 54. For specific Three years The date fixed for the performance performance, or, if no of a contract. such date is fixed, when the plaintiff has notice that performance is refused.” A bare perusal of the aforesaid provision reveals that if date has been fixed for performance of the agreement, then the limitation period of three years commences from the said date. In the instant case, date for performance of the agreement was stipulated in the agreement itself as 02.04.1981. Consequently, the limitation period expired on 02.04.1984, whereas the suit was filed on 18.08.2004 i.e. more than 20 years after the expiry of limitation period. Consequently, the suit is barred by limitation. Alleged acceptance of sale consideration by defendant on 25.08.1982 did not restart running of limitation period nor it could bring the suit within limitation. Moreover, the plaintiff did not file the suit even within the period of three years from the date of said payment and rather filed the suit after 22 years of the said payment. The suit is, therefore, barred by R. S. A. No. 1834 of 2011 5 limitation. In addition to the aforesaid, there has been breach of the agreement by the plaintiff himself and for this reason also, he is not entitled to specific performance of the agreement. The plaintiff has not depicted that he had always been ready and willing to perform his part of the contract. On the contrary, plaintiff's own version reveals that he himself committed breach of the agreement. According to the impugned agreement, sale consideration was to be paid to the defendant up to 02.04.1981, but admittedly, the plaintiff did not pay the same accordingly. On the contrary, the plaintiff, according to his own version, paid the sale consideration to the defendant on 25.08.1982 i.e. almost 17 months after the due date. Thus, there has been breach of agreement by the plaintiff himself. In addition to it, the agreement stipulated payment of interest on the sale consideration, which has also not been paid by the plaintiff. It is thus apparent that plaintiff himself is guilty of committing breach of the agreement. He filed the suit more than 24 years after the agreement was executed just to grab compensation for the suit land, which has now been acquired by the State Government. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by both the courts below against the plaintiff-appellant to non-suit him is fully justified even by plaintiff's own averments. Consequently, the said finding does not warrant interference in R. S. A. No. 1834 of 2011 6 second appeal as it is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. This appeal does not raise any question of law, much less substantial question of law, for adjudication. On the contrary, the appeal is not only meritless, but is also frivolous. Such frivolous litigation has to be curbed by imposing exemplary cost on the plaintiff-appellant. He generated this litigation unnecessarily more than 24 years after the impugned agreement was executed. All proceedings leading to the instant second appeal are result of unnecessary litigation generated by the plaintiff-appellant. Accordingly, the instant appeal is dismissed in limine with cost of Rs.15,000/-, to be deposited by the plaintiff-appellant with the Registry of this Court. If the cost amount is not deposited within one month, the appeal shall be listed for this purpose. May 17, 2011 ( L. N. MITTAL ) monika JUDGE