Regular Second Appeal No. 162 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 162 of 2008 Date of decision : May 04, 2011 Nakli ....Appellant versus Dhara ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Ashish Gupta, Advocate for Mr. Vikram Singh, Advocate, for the appellant Mr. Roopak Bansal, Advocate, for the respondent L.N. Mittal, J. (Oral) Defendant Nakli having lost in both the courts below has come up by way of instant second appeal. Respondent – plaintiff Dhara filed suit against defendant – appellant for specific performance of agreement to sell dated 13.9.1999. The plaintiff alleged that earlier there was an agreement dated 15.4.1994 for sale of 98 kanals 7 marlas land by defendant in favour of plaintiff. Pursuant thereto sale deed dated 7.6.1994 was executed. Plaintiff's version is that in the said sale deed area was altered to 82 kanals 7 marlas instead of 98 kanals 7 marlas by fraud and forgery. The plaintiff launched civil and Regular Second Appeal No. 162 of 2008 -2- criminal proceedings for the same. During pendency thereof, compromise was effected between the parties and pursuant to the compromise impugned agreement dated 13.9.1999 was executed by defendant for sale of suit land measuring 16 kanals in favour of the plaintiff for consideration of Rs 50,000/-. Plaintiff also paid Rs 10,000/- as earnest money. Sale deed was to be executed upto 8.1.2000. The plaintiff always remained ready and willing to perform his part of the contract but the defendant committed breach thereof necessitating the filing of the instant suit. Defendant while admitting agreement dated 15.4.1994 for sale of 98 kanals 7 marlas broadly denied the other plaint allegations. It was alleged that cutting in sale deed dated 07.6.1994 was made before it was presented for registration. Impugned agreement dated 13.9.1999 was alleged to be result of fraud and misrepresentation etc. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Safidon vide judgment and decree dated 13.4.2004 decreed the plaintiff's suit for specific performance of the agreement but the consideration was enhanced to Rs 50,000/- per acre instead of Rs 50,000/- for the entire land measuring two acres. Both the parties preferred first appeals against the judgment and decree of the trial court. Learned District Judge, Jind vide common judgment and decrees dated 6.9.2007 dismissed defendant's appeal and allowed plaintiff's appeal thereby directing execution of the sale deed for total consideration of Rs 50,000/-. Feeling aggrieved, the defendant has filed the instant second appeal. Regular Second Appeal No. 162 of 2008 -3- I have heard learned counsel for the parties and perused the case file. Sole contention raised by counsel for the appellant in the instant appeal is that the plaintiff was not ready and willing to perform his part of the contract because he allegedly went to Sub-Registrar on 10.1.2000 whereas the date for execution of the sale deed as stipulated in the agreement was 8.1.2000. The contention cannot be accepted. Firstly it is not the case of the defendant that he ever remained ready and willing to perform his part of the contract. Secondly, time is not the essence of the contract for sale of immovable property until it is so made expressly or by implication. In the instant case, there is not even a plea nor any evidence to depict that time was essence of the contract. Thirdly and most importantly, office of Sub Registrar was closed on 8.1.200 and 9.1.2000 being Saturday/Sunday and therefore, the plaintiff remained present in the office of Sub Registrar on 10.1.2000 to get the sale deed executed. In fact, the plaintiff in the earlier suit emerging from agreement dated 15.4.1994 got temporary injunction against alienation of the suit land and in that suit the plaintiff got the said temporary injunction modified from the court vide order dated 8.1.2000 to enable the defendant to execute the sale deed pursuant to impugned agreement dated 13.9.1999. It would also depict that plaintiff was pursuing the matter in right earnest and always remained ready and willing to perform his part of the contract. Accordingly, the solitary contention raised by counsel for appellant is completely meritless and is, therefore, repelled. Regular Second Appeal No. 162 of 2008 -4- For the reasons aforesaid, I find no merit in the instant second appeal. There is concurrent finding recorded by the courts below in favour of the plaintiff regarding valid execution of the impugned agreement. The said finding is not shown to be perverse nor it is based on misreading or misappreciation of evidence. No meaningful argument could be advanced against the said finding. Accordingly the said finding does not warrant interference in the instant second appeal. The appeal is meritless and is accordingly dismissed. ( L.N. Mittal ) May 04, 2011 Judge 'dalbir'