RSA No.1307 of 1990(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1307 of 1990(O&M) Date of decision: 30.8.2010 R.S. Dhingra ......Appellant(s) Versus Jalandhar Improvement Trust ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Kanwaljit Singh, Sr. Advocate with Mr. Ajay Singla, Advocate for the appellant. Mr. S.C. Pathela, Advocate for respondent No.1. Mr. Akshay Bhan, Advocate for the applicant. Rakesh Kumar Garg, J. CM No.10235-C of 2010 Application is allowed subject to all just exceptions. Certified copy of the power of attorney dated 12.3.1993 is taken on record. CM No.11132-C of 2009 and RSA No.1307 of 1990 One Captain R.S. Dhingra son of Shri Malawa Ram r/o Lally Niwas, G.T.Road, Jalandhar City, filed a suit for specific performance by possession of plot No.40 measuring 20/16 marlas in the Development Scheme of 110 acres known as Guru Tegh Bahadur Nagar, Jalandhar (hereinafter referred to as “Development Scheme”) by ordering the defendant to execute the sale deed and get the same registered in his favour on receipt of a sum of Rs.23,000/- or any other amount to be calculated by it on the basis of available measurements of the plot. It was inter alia alleged that the plaintiff had purchased some land which was acquired by the defendant for its 110 acres' Development Scheme. The RSA No.1307 of 1990(O&M) 2 plaintiff applied to the defendant for allotment of plot in his capacity as a Local Displaced Person. Defendant vide letter dated 10.5.1977 allotted plot measuring one kanal in the aforesaid development scheme. On the asking of the defendant, he deposited a sum of Rs.5,000/- as part payment of the sale price of the plot. Subsequently, the defendant vide his letter dated 2.7.1977 confirmed the allotment of plot No.40 measuring one kanal in the aforesaid Development Scheme to the plaintiff at the rate of Rs.1950/- per marla. Thus, according to the plaintiff, a valid contract of sale of plot No.40 in the Development Scheme came into existence between the parties but the defendant backed out of this contract and did not accept the balance sale price offered by him. A suit for mandatory injunction against the defendant was filed asking it to transfer the plot in question and execute the sale deed in his favour which was dismissed on technical grounds. The plaintiff filed an appeal against the said decree. During the pendency of the appeal, the District Judge, Jalandhar, granted liberty to the plaintiff to withdraw that suit with permission to file fresh suit. Hence, the present suit was filed. In the written statement filed by the defendant in the previous suit , it was pleaded that area of plot No.40 had been reduced to 16 marlas. After withdrawal of the previous suit, the plaintiff served a statutory notice, however, the defendant did not execute the sale deed in favour of the plaintiff. The plaintiff always remained ready and willing to perform his part of the contract and was still ready and willing to perform his part of the contract but the defendant had backed out and therefore, he was entitled to get the sale deed executed in his favour. The defendant-respondent was requested to do the needful but to no avail. Hence, the present suit by way of specific performance of the contract of sale. The suit was contested by the defendant-respondent denying RSA No.1307 of 1990(O&M) 3 that any land had been purchased by the plaintiff-appellant which was subsequently acquired for 110 acres' development scheme. It was stated that on his application, which was false, the defendant allotted him plot No.40 in the Scheme and he paid Rs.5,000/-, the defendant asked the plaintiff to furnish the proof of being a local displaced person but he failed to do the same. Therefore, he was not entitled to any plot in this scheme as a Local Displaced Person. His locus standi to file the suit was also challenged. Other legal objections were raised. It was further stated that plot No.40 of the Scheme had been transferred to one Arjan Singh- defendant No.2. All other averments were denied and it was pleaded that the suit be dismissed. From the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the plaintiff is entitled to the decree for specific performance by possession of plot No.40 in this scheme of 110 acres? OPP 2. Whether the suit is time barred? OPD 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the suit is barred under Order 2 Rule 2 CPC? OPD 5. Whether the suit is barred by the principles of res judicata? OPD 6. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 7. Whether the suit is bad for non-joinder of necessary parties? OPD 8. Whether the plot is only measuring 13 marlas, if RSA No.1307 of 1990(O&M) 4 so, its effect? OPD 9. Whether the plot in suit has already been valid allotted to Arjan Singh defendant No.2 & he was in possession? If so its effect? OPD-2. It may be noticed that the suit was filed on 1.4.1986 and the same was dismissed in default on 15.4.1987. Subsequently, it was restored vide order dated 4.1.1988. No evidence was produced by the plaintiff-appellant. He even himself did not appear in the Court to support his case. No reason whatsoever was explained for this lapse. The trial Court after closing the evidence by order, proceeded further to dispose of the case and thereafter, the same was dismissed vide impugned judgment and decree dated 5.5.1988. The appeal filed by the plaintiff also came to be dismissed by the Addl. District Judge, Jalandhar. The Lower Appellate Court while dismissing his appeal found that the appellant had not led any evidence despite the grant of many opportunities and no reasons were put forth for this lapse. Feeling aggrieved from the aforesaid judgment and decrees of the Courts below, the appellant filed the instant appeal through Sh. A.P. Bhandari, Advocate before this Court and the same was admitted vide order dated 6.8.1990. Applicant-Charanjit Singh who claimed himself as a General Power of Attorney of appellant-Captain R.S. Dhingra, moved CM No.11132 -C of 2009 through Sh. R.S. Bajaj, Advocate, in this Court seeking to withdraw the present appeal submitting that during the pendency of this appeal, the respondent-Trust vide letter dated 16.7.2009 has allotted plot No.407-B to the applicant in 170 Acre Development Scheme, Jalandhar in lieu of plot No.40 earlier allotted to the appellant in 110 Acres Development RSA No.1307 of 1990(O&M) 5 Scheme, Jalandhar. It may be noticed that on 18.8.2009, a letter was received from one Ram Singh informing the Court that the applicant- appellant would be filing an application for withdrawal of the appeal on the ground that the plot stood allotted to him, whereas the Improvement Trust was not competent to allot any such plot to the applicant and, that too, when the civil suit filed by the applicant was dismissed by the trial Court and also by the First Appellate Court. Notice of the said application was given to respondent No.1 and the case was adjourned to 19.1.2010. On 19.1.2010, one Tejvir Singh Mannes, Advocate, filed his Power of Attorney to instruct Sh. Kanwaljit Singh, Sr. Advocate, on behalf of applicant-Charanjit Singh. No objection was duly granted on this aforesaid Power of Attorney by Sh. R.S. Bajaj, Advocate, who was also present in Court and was permitted to withdraw his Power of Attorney from the case. On 17.2.2010, the respondent-Trust by way of CM No.2009-C of 2010 placed on record its reply. Record of the Improvement Trust was directed to be produced before the Court and the Chairman of the Trust was also directed to be present. On 15.3.2010, Sh. Baljeet Singh, Neela Mahal, Chairman of the Jalandhar Improvement Trust came present in Court. Sh. S.C. Pathela, Advocate, appeared on behalf of the respondent-Trust and placed on record a copy of allotment letter dated 16.7.2009 with regard to the plot No.407-B, Surya Enclave, Jalandhar, in favour of Captain R.S. Dhingra. On that date, Sh. S.C. Pathela, Advocate, informed this Court that appellant-Captain R.S. Dhingra is stated to have died. On receipt of this information, applicant- Charanjit Singh, who was alleging himself as a General Power of Attorney of the appellant, was asked to file an affidavit with regard to date of death of the appellant. Vide CM No.5335-C of 2010, applicant-Charanjit Singh placed on record his affidavit to state that from order dated 15.3.2010 of RSA No.1307 of 1990(O&M) 6 this Court, it was revealed that appellant-R.S. Dhingra had died but applicant had no knowledge of date of death and place of death but later on after inquiry he learnt that the appellant died in U.S.A. Charanjit Singh son of Gurmukh Singh Singh-applicant also appeared before this Court on 1.7.2010 and made a statement which reads as follows: “The appellant-Capt. R.S. Dhingra appointed the deponent as his general power of attorney on dated 12.3.1993, which was duly registered on 17.3.1993. I have no knowledge about the death of Capt.R.S. Dhingra. Capt. R.S. Dhingra never visited India after 1994. I have no communication with the aforesaid Capt. R.S. Dhingra since 1994. I have got settled an agreement to sell out the plot in question between Capt. R.S. Dhingra and one Jaswinder Singh in the year 1993 and a power of attorney was issued in my name by R.S. Dhingra on his behalf. I have filed all the pleadings/affidavits in this Court and the courts below after 1994 on my own and I was not having any communication with Capt.R.S. Dhingra. Both the persons i.e. Capt. R.S. Dhingra and Jaswinder Singh were known to me earlier.” It may also be noticed that one Jaswinder Singh also moved CM No.7128-C of 2010 to implead him as party in the present appeal on the ground that one agreement to sell on 29.10.1993 was entered into between Jaswinder Singh-applicant and Charanjit Singh, General Power of Attorney of the Captain R.S. Dhingra-appellant and he had made full and final payment on execution of the aforesaid agreement to sell and therefore, they were likely to be affected with the present litigation. RSA No.1307 of 1990(O&M) 7 On July 5, 2010, on perusing the record of the Trust, it was found that no original/certified copy of the alleged Power of Attorney executed in favour of Charanjit Singh by Capt. R.S. Dhingra was available on the record of the Trust. It was also found that in the Court record also, no copy of general power of attorney executed in favour of the applicant was attached with the vakalatnama of Mr. Tejvir Singh Mannes, Advocate or Mr. R.S. Bajaj, Advocate. Applicant-Charanjit Singh was directed to place on record a copy of the power of attorney dated 12.3.1993 executed in his favour by Capt. R.S. Dhingra-appellant. From the aforesaid fact as narrated above, undisputedly, one fact which has been established on record is that Capt. R.S. Dhingra, appellant in this appeal, had died and therefore, the alleged power of attorney dated 12.3.1993 executed in favour of Charanjit Singh-applicant by him, has come to an end and therefore, applicant-Charanjit Singh has no right to continue with this appeal as general power of attorney of Capt. R.S.Dhingra, who had admittedly died. LRs of Capt. R.S. Dhingra-appellant have not come on record. In this view of the matter, this appeal is liable to be dismissed having been abated. Ordered accordingly. It may also be seen that the act of Charanjit Singh, the alleged GPA of appellant-Capt. R.S. Dhingra is highly deplorable. As per his own statement made before this Court on 1.7.2010, the power of attorney was executed in his favour on 12.3.1993 and he had no communication with him since 1994. Though applicant-Charanjit Singh was acting on behalf of Capt. R.S. Dhingra as his general power of attorney but he has clearly stated that he was filing all the pleadings/affidavits after 1994 before the Authorities/Courts on his own and was not having any communication with RSA No.1307 of 1990(O&M) 8 Capt. R.S. Dhingra. He represented to the respondent-Authorities for allotment of alternative plot despite the fact that his suit and appeal before the Courts below were dismissed. Not only this, he never tried to find out whether Capt. R.S. Dhingra was alive or not. Even, he filed an application for withdrawal of the appeal of his own after an allotment was made to him vide letter dated 16.7.2009 which was later on withdrawn by the respondent-Authorities. From the aforesaid facts, it is crystal clear that applicant- Charanjit Singh has tried to conceal the material facts from the knowledge of this Court regarding the death of Capt. R.S. Dhingra-appellant for illegal gains by getting allotment of plot in his favour. From the facts, it may also be seen that the action of the respondent-Trust in allotment of plot vide allotment letter dated 16.7.2009 also seems to be mala fide as the aforesaid allotment letter was issued in favour of the applicant without verifying the proper facts regarding the claim of the appellant and the genuineness of the attorney. Since applicant-Charanjit Singh has tried to conceal the material facts from the knowledge of this Court for getting undue gain and causing loss to public exchequer knowingly and has wasted the precious time of the Court, the application filed by him for withdrawal of the appeal is dismissed with exemplary costs which are assessed at Rs.50,000/- . The applicant-Charanjit Singh shall deposit the aforesaid amount with Legal Services Authority, Punjab, within two months. Compliance of the order be made. Needless to say that Jaswinder Singh-applicant in CM Nos.7127 & 7128-C of 2010 is at liberty to seek his remedy against applicant-Charanjit Singh in an appropriate proceedings on the basis of agreement to sell dated 29.10.1993 alleged to have been executed in RSA No.1307 of 1990(O&M) 9 favour of Jaswinder Singh. In these circumstances, I deem it appropriate to direct the Senior Superintendent of Police, Jalandhar to investigate the matter in accordance with law and after completing the investigation, take appropriate action, if need be. Let the compliance report be submitted to the Court within two months from the date of receipt of this order. August 30, 2010 (RAKESH KUMAR GARG) ps JUDGE