IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.151 of 2005 Sarjugia Devi Wife of Sri Jag Narain Rai resident of Village Dighikala P.O and P.S. Hajipur Dist. Vaishali Defendant- Appellant- Appellant Versus Rajendra Rai s/o Sri Baleshwar Rai resident of Village Dayalpur P.S. Hajipur at present Rajapakar Dist. Vaishali Plaintiff-Respondent-Respondent ----------------------- For the appellant: Mr Naresh Chandra Verma, Advocate Mr Arun Kumar Lal, Advocate For the respondent: None ------------------- 04 28.04.2009 Heard learned counsel for the appellant. 2. This second appeal has been filed by the sole defendant- appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit no.20 of 1989 which was filed by the sole plaintiff-respondent-respondent for specific performance of contract vide agreement dated 05.04.1986 (exhibit 2), said to have been executed by the defendant in favour of the plaintiff with respect to the suit property, and for other ancillary reliefs. 4. The aforesaid title suit was decreed on contest by the learned Subordinate Judge I, Hajipur vide his judgment and decree dated 09.03.1994. Against the aforesaid judgment and decree of the trial court, the defendant filed Title Appeal no.21 of 1994( 13/1995) which was dismissed on contest by the learned Additional District Judge IV, Vaishali at Hajipur, vide his judgment and decree dated 30.11.1995. 5. After considering the arguments of the parties as well as the materials on record including the impugned judgments and decree of both the learned courts below, it is quite apparent that although - 2 - the defendant challenged the genuiness of the said agreement for sale dated 05.04.1986 (exhibit 2) but the learned courts below after considering the pleadings and evidence of the parties came to the specific conclusion that it was genuine, valid and no fraud had been played for its execution. So far readiness and willingness of the plaintiff was concerned both the learned courts below arrived at a finding of fact that the plaintiff was from the very beginning ready and willing to pay rest of the consideration money but the defendant evaded to receive the same and to execute the sale deed in favour of the plaintiff for the suit land. 6. Learned counsel for the appellant has raised emphasis upon the letters exhibits D/2, D/3 and D/4 in which the plaintiff had allegedly asked the defendant to return his money. Even if the said letters are presumed to be genuine it does not mean that in any circumstance such letters could finally prove that the plaintiff was not ready and willing to pay the amount as even in case of frustration due to lingering attitude of the defendant such statement could have been made, but considering other evidence of the parties both oral and documentary both the learned courts below came to the specific concurrent findings of facts that the plaintiff was throughout ready and willing to pay his part of the contract. 7. In the said circumstance, this Court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal. - 3 - 8. In addition to the aforesaid issue regarding merit of the case, the instant second appeal is hopelessly barred by law of limitation as against the judgment and decree of the court of appeal below dated 30.11.1995, the instant second appeal has been filed on 20.05.2005 although according to the stamp report limitation had expired on 28.02.1996 and hence there is delay of more than nine years in the filing of the instant second appeal. In her application for condoning the delay bearing I.A. no.2386 of 2009 the plaintiff has sought to lay the entire blame for delay upon her advocate and advocate’s clerk at Hajipur but the same is not substantiated by any valid and convincing ground or material and hence there is no merit at all in the said interlocutory application either. 9. In the aforesaid facts and circumstances this second appeal is dismissed, at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. (S.N.Hussain,J) shahid