R.S.A. No. 2279 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.M. Nos. 6515-6817-C of 2009 & R.S.A. No. 2279 of 2009 (O&M) Date of Decision : 30.5.2009 Balbir Kaur .......... Appellant Versus Mehnga Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Ms. Sushma Chopra, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) R.S.A. No. 2279 of 2009 & C.M. No. 6515-C of 2009 & C.M. No. 6517-C of 2009 This regular second appeal is directed against the judgment and decree dated 18.9.2006 passed by the learned lower appellate Court, vide which, in a suit filed for possession by way of specific performance, alternative relief of recovery of Rs. 35,000/- with interest @ 6 % per annum from the date of filing of suit till realization, has been granted. The plaintiff / respondent brought a suit for specific performance, on the pleadings that the defendant / appellant had executed an agreement to sell dated 28.2.2002 for a total sale consideration of Rs. 1.5 lacs, out of which a sum of Rs. 55,000/- was paid as earnest money. The plaintiff / respondent claimed that the agreement to sell was duly executed, it was further the case that the plaintiff has always been ready and still willing to perform his part of contract. R.S.A. No. 2279 of 2009 2 The suit was contested by the appellant / defendant, wherein a plea was taken that no agreement to sell was executed rather she was made to sign certain papers as security for loan of Rs. 35,000/- advanced to her. The learned trial Court dismissed the suit by holding, that the agreement to sell, could not be relied upon because of certain interpolations made therein. The plaintiff / respondent preferred an appeal. The learned lower appellate Court while upholding the finding of the learned trial Court, that the plaintiff / respondent was not entitled to seek specific performance of agreement to sell, decreed the suit for recovery of Rs. 35,000/- on the basis of admission made by the defendant / appellant in the written statement pleading therein that she had taken a loan of Rs. 35,000/- which she was willing to repay. The learned counsel for the appellant contends that this appeal raises the following substantial question of law :- Whether the learned lower appellate Court was competent to make out a new case which was not set up by the plaintiff in the plaint to decree the suit for recovery of Rs. 35,000/- ? In support of the substantial question of law the learned counsel for the appellant vehemently contends that the plaintiff / respondent had brought a suit for specific performance on the basis of agreement to sell by claiming that a sum of Rs. 55,000/- was paid as earnest money. Once the said plea was not accepted and the agreement was held to be interpolated the Court could not make out a new case in favour of the plaintiff / R.S.A. No. 2279 of 2009 3 respondent to decree the suit for recovery. On consideration, this Court is unable to accept the contention raised by the learned counsel for the appellant. Though the plaintiff failed to prove that the agreement to sell qua sale of the land, but a positive plea in defence was taken by the defendant / appellant, that in fact she had taken a loan of Rs. 35,000/- and blank signed papers were used for preparing the agreement. In view of stand taken, no fault can be found with the decree passed by the learned lower appellate Court on the basis of admission made by the defendant / appellant. The decree has been passed, as per admission made by the defendant / appellant herself. It cannot, therefore, be said that a new case has been made out, as contended. The substantial question of law, therefore, is answered against the appellant. Faced with this situation, the learned counsel for the appellant contends that the plaintiff be allowed to pay the decretal amount in installments. This plea cannot be considered in the regular second appeal as it would be open to the appellant / defendant to approach the learned executing Court for payment of decretal amount in installments. This appeal is also accompanied by C.M. No. 6815-C of 2009 for condonation of delay of 893 days in filing the regular second appeal. It has been mentioned in the application that the appellant came to know about the decision of the appeal only in the month of April without disclosing the year. In absence of specific pleading, the delay of 893 days cannot be condoned on the vague assertion. R.S.A. No. 2279 of 2009 4 Consequently, this application for condonation of delay is dismissed as no sufficient cause is made out for condoning the delay in filing the appeal. Consequently the appeal is dismissed being devoid of merit and also being time barred. C.M. No. 6816-C of 2009 This application has been moved for dispensing with filing of certified copies of the judgments and decrees passed by the learned Courts below. In absence of certified copy of judgment and decree of either of the Courts the statutory requirement of filing certified copy cannot be dispensed with, as nothing has been mentioned as to when the copies were applied and when these were likely to be made available. However, as the regular second appeal is dismissed being without any merit and also on ground of limitation, this application has been rendered infructuous. Disposed of accordingly. 30.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE