RSA No.911 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.911 of 2005 Date of Decision:03.11.2008 Siri Kishan ....appellant Versus Satish Kumar Sharma .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.D.N.Tanwar, Advocate for the appellant Mr.C.B.Goel, Advocate for the respondent **** RAKESH KUMAR GARG J. This is defendant's second appeal challenging the judgment and decrees of the Courts below, whereby the suit of the plaintiff for possession by way of specific performance with consequential relief of permanent injunction filed by the plaintiff-respondent, has been decreed. Briefly stated the facts of the case are that the defendant who was owner in possession of the property in dispute entered into an agreement to sell on 13.08.1992 and agreed to sell the aforesaid property to the plaintiff-respondent for a total consideration of Rs.3,50,000/- and received a sum of Rs.1,50,000/- as earnest money. It was agreed that the sale deed would be got executed and registered on or before 30.10.1992. The balance sale consideration was agreed to be paid at the time of registration. It was also agreed that if the defendant-appellant failed to perform his part of the contract, the plaintiff-respondent shall be entitled to get the needful done through the court of law. As against it, if the plaintiff- respondent committed a default, the defendant-appellant was entitled to RSA No.911 of 2005 2 forfeit the earnest money and to treat the impugned agreement as cancelled. The plaintiff-respondent has always been ready and willing to perform his part of the contract. In that very context, he attended the office of Sub-Registrar, Gurgaon, when he was possessed of funds adequate enough to enable him to pay the balance sale consideration and also to bear the stamp and registration charges etc.but the defendant-appellant did not turn up to get the sale deed registered. Even thereafter, the plaintiff-respondent served legal notices dated 30.07.1993, 27.10.1993 and 25.08.1995 calling upon the defendant-appellant to execute the sale deed but no response thereto was offered by the defendant-appellant. Hence this suit. Besides challenging the locus standi of the plaintiff- respondent to file the suit and the maintainability of the suit in the present form, the defendant-appellant also pleaded bar of estoppel and limitation. It was averred that the defendant-appellant had always been ready and willing to perform his part of the contract but the plaintiff-respondent did not perform his part of the contract as he was not possessed of sufficient resources in the context. The defendant-appellant also got a notice dated 14.12.1992 served upon the plaintiff-respondent, requiring the latter to come present in the office of Sub-Registrar and to get the sale deed executed within seven days from the date of receipt of notice. However, the plaintiff-respondent remained content with a vague reply which proceeded on false averment. In pursuance of the legal notice dated 14.12.1992, the defendant-appellant also appeared in the office of Sub- Registrar on the relevant date but the plaintiff-respondent did not turn up to get the sale deed executed and registered. The defendant prayed for dismissal of suit. The trial Court vide impugned judgment and decree held that execution of the agreement dated 13.08.1992 is proved and that RSA No.911 of 2005 3 plaintiff-respondent had always been ready and willing to perform their part of the contract and thus decreed the suit. Feeling aggrieved, the defendant filed an appeal against the aforesaid judgment and decree of the trial court which was also dismissed. Still not satisfied, the defendant has filed this appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the agreement to sell between the plaintiff and the defendant is dated 13.08.1992, whereas the sale deed was to be executed on or before 30.10.1992. A Court fee of Rs.10/- was affixed at the time of filing the suit which was filed on the last day of limitation, whereas the Court fee should have been affixed at Rs.18,370/- and the remaining entire Court fee was affixed on 16.11.1995 and on that date the suit had become time barred. Learned counsel for the appellant has further argued that relief of specific performance cannot be granted if the suit is filed on the last day of limitation. In support of his contentions, learned counsel for the appellant has placed reliance upon judgments cited as Joginder Singh versus Surinder Pal Singh 2001(2)Civil Court Cases 140 (P & H) , Baj Singh & anr. vs. Smt.Gejo and anr. 1988(2) RRR 507 (P & H), and K.S.Vidyanadam versus Vairavan (SC)1997( 2) RCR (Civil) 312 . On the other hand Mr.C.B.Goel, Advocate, appearing for the respondent has supported the findings of the Courts below and has argued that agreement to sell in question stands proved and further it has also been proved by the plaintiff-respondent that he was willing and ready to perform his part of contract and the suit filed by the plaintiff-respondent was still within limitation, as the deficiency in Court fee was made good under the orders passed by the Civil court on 16.11.1995 under Section 149 CPC and therefore it cannot be said that the suit is beyond limitation. The learned counsel has also argued that no such issue was claimed by the RSA No.911 of 2005 4 appellant at the time of framing of the issues or at any stage and the said question is being raised for the first time in Regular Second Appeal, which is not permissible. The learned counsel has also argued that simply because the suit has been filed on the last date of period of limitation, the plaintiff-respondent cannot be denied the relief of specific performance of the contract as the same stands proved. Learned counsel for the respondent has also placed reliance upon judgment of this Court in Piru versus Fakir Chand 2006(4) RCR(Civil) 208. I have heard learned counsel for the parties and perused the record. I find no force in the contentions raised by the learned counsel for the appellant. A perusal of the record would show that the present suit was filed on 31.10.1995 which was the last day of period of limitation. It is also a matter of record that on that day full prescribed fee was not affixed on the suit and the deficiency in the Court fee was made good by the plaintiff-respondent in pursuance of the order dated 16.11.1995 passed by the trial Court under Section 149 CPC. Section 149 CPC is reproduced: “Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance. “ A careful reading of Section 149 CPC shows that if the Court fee due on the plaint, when instituted, is not paid wholly or partly by the person instituting the suit, the Court in its discretion, may allow him time for deposit of Court fee within the period to be fixed by it. This Section further provides that upon such payment the document, in respect of which such fee is payable shall have the same force and effect as if such fee had RSA No.911 of 2005 5 been paid in the first instance. Thus, the objection raised by the learned counsel for the appellant that the suit was time barred is erroneous and liable to be rejected. The other contention of the learned counsel for the appellant to the effect that if the suit is filed on the last date of limitation, the relief of specific performance cannot be granted, is also liable to be rejected. The judgments cited by the learned counsel for the appellant does not help him in any manner. In the case of Joginder Singh(Supra), relief of specific performance was granted. However, it was argued by the appellant that the grant of specific performance is in the discretion of the Court which could have been exercised by the Court in favour of the plaintiff-respondent by refusing the specific performance. However, the Court did not see any reason to refuse the relief of specific performance to the plaintiff. Since, the plaintiff had filed suit soon after sale deed was executed in favour of a subsequent vendee, it was observed that relief of specific performance could have been refused to the plaintiff, if they had filed the suit on the last day of limitation. In fact, there was no occasion for the Court in the facts and circumstances of the case to make such observations and no such law was settled by this judgment as argued by the learned counsel for the appellant. In the case of Baj Singh & anr. (supra) specific performance was denied as 14 years had elapsed and the prices had increased manifold and it was held that it will be unjustified to allow specific performance in such circumstances. This judgment is not applicable to the facts of this case. The learned counsel has also relied upon a judgment of the Apex Court in the case of K.S.Vidyanadam (surpa) to contend that even where time is not of essence of the contract, the plaintiff must perform his part of the contract within a reasonable time and where the vendee kept silent for a long time and thereafter claims specific performance attracted by increase of the prices in the area, it was RSA No.911 of 2005 6 held that it will be inequitable to give relief of specific performance in such a case. There is no dispute with the proposition of law as settled by the aforesaid judgment. However, no such facts have been established by the learned counsel for the appellant in this case. The relief of specific performance is an equitable and discretionary relief. The Courts below on appreciation of evidence have recorded a finding of fact and on the basis of that finding of fact the courts below have exercised their judicial discretion in favour of the plaintiff-respondent for grant of decree of specific performance. This Court has no jurisdiction to interfere in such a discretion of the Court, which has been exercised, judiciously while exercising its jurisdiction under Section 100 CPC. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. (RAKESH KUMAR GARG) JUDGE 03.11.2008 neenu