RSA No.2815 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2815 of 1987 Date of decision: 17.3.2010 Umed Singh ............Appellant Versus Partap Singh .........Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. B. B. Kaushik, Advocate for Mr. D. R. Bansal, Advocate for the appellant. Mr. Anil Rathi, Advocate for the respondent. --- 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. 1. The present second appeal has been filed by the plaintiff/appellant challenging the judgment and decree dated 11.5.1987 passed by the first Appellate Court, thereby allowing the appeal of the defendant in part and dismissing the suit for specific performance of the contract, however, decreeing the suit of the plaintiff to recover the earnest money of Rs.1,000/- from the defendant. RSA No.2815 of 1987 2 2. The brief facts of the present case are that the plaintiff/appellant had filed the suit for specific performance of contract of sale and in the alternative for recovery of Rs.1907/-. As per the plaintiff, defendant entered into a contract of sale on 5.9.1981 with regard to 99 square yards and 15 inches of a plot situated in Dadri for a sale consideration of Rs.4500/-; Rs.1000/- was paid as earnest money to the defendant by the plaintiff and the remaining amount was to be paid at the time of execution/registration of sale deed; sale deed was to be executed/registered till 31.3.1982; plaintiff had always been ready to perform his part of the contract; defendant failed to get the sale deed executed till 31.3.1982 despite of the fact he received Rs.652.50 paise on 1.7.1982 for purchase of stamp; on 27.7.1982 defendant stated the plaintiff that he has got the deed described, hence, plaintiff should give him Rs.1500/- in advance and remaining Rs.2000/- would be received by him before the Sub Registrar. 3. Defendant contested the suit and stated that he was always willing to get the sale deed executed in favour of the plaintiff and in fact he kept sitting in front of the office of Sub-Registrar upto 2.00 P.M. on 31.3.1982, but the plaintiff did not turn up; defendant denied the allegations of receiving Rs.652.50 paise for purchase of stamp; defendant asserted that after the time of agreement was over, the plaintiff agreed to pay Rs.8000/- to the defendant for the plot in question and got defendant’s signature in the register of the stamp vendor; sale deed was got prepared by the plaintiff but sale consideration was shown Rs.2000/-, hence, the defendant refused to sign the same; the time was essence, since, plaintiff failed to get their sale deed executed, hence, its earnest amount stands forfeited. RSA No.2815 of 1987 3 4. Learned trial Court framed following issues:- “1. Whether the plaintiff was and is ready to perform his part of contract?OPP. 2. Whether the defendant has committed the breach of agreement of sale?OPP. 3. Whether the plaintiff had agreed to purchase the suit land for consideration of Rs.8000/- as alleged in para No.7 of the written statement and if so, its effect?OPD. 4. Whether the plaintiff has no locus-standi to file this suit? 5. Whether the earnest amount stands forfeited as alleged?OPD. 6. Whether the suit is false and frivolous and as such whether the defendant is entitled to special costs? 7. Relief.” 5. Learned trial Court decreed the suit of the plaintiff for specific performance of the contract vide judgment and decree dated 21.1.1985. 6. Feeling aggrieved, defendant preferred first appeal before the first Appellate Court which was allowed vide judgment and decree dated 11.5.1987 denying the relief of specific performance while confining the decree for refund of earnest money of Rs.1000/-. Hence, the present second appeal. 7. I have heard learned Counsel for the parties and perused the record. 8. Learned Counsel for the plaintiff/appellant vehemently argued that learned first Appellate Court was not within its jurisdiction to modify the decree of specific performance of contract into the RSA No.2815 of 1987 4 decree of refund of earnest money. 9. No proposed substantial question of law has been stated/formulated in the memorandum of appeal as required by Section 100(3) C.P.C. 10. Hon’ble Apex Court in the matter of Chadat Singh vs. Bahadur Ram and others reported in 2004 (6) SCC 359, in paragraph No.6 thereof has observed as under:- “6. In view of Section 100 of the Code, the memorandum of appeal shall precisely state substantial question or questions of law involved in the appeal as required under sub-section (3) of Section 100. Where the High Court is satisfied that in any case any substantial question of law is involved, it shall formulate that question under sub-section (4) and the second appeal has to be heard on the question so formulated as stated in sub- section (5) of Section 100.” 11. The Hon’ble Apex Court in the matter of Shah Mansukhlal Chhaganial (died) through LRs vs. Gohil Amarsing Govindbhai(died) through LRs reported in 2006 (13) SCC 113 has placed reliance upon the judgment of Chadat Singh (supra). 12. The Hon’ble Apex Court in the matter of Koppisetty Venkat Ratnam (d) through LRs v. Parmarti Venkayamma, reported in JT 2009 (4) SC 448 in paragraph No.14 has observed as under:- “14. Now, after 1976 amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High RSA No.2815 of 1987 5 Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial question of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial question of law and then only the High Court is permitted to proceed with the case to decide those question of law.” 13. In view of above dictum of the Hon’ble Apex Court, I find that it is a primary duty of the appellant to state/formulate proposed substantial question of law in the memorandum of appeal to make it maintainable and thereafter High Court has to satisfy itself as to whether in fact any substantial question of law arises? If High Court is satisfied then High Court shall proceed to formulate substantial question of law which High Court deems fit, and thereafter High Court shall admit the second appeal on such substantial question of law. 14. Although appeal is not maintainable in view of the dictum of the Hon’ble Apex Court as discussed hereinbefore for want of statement/formulation of the proposed substantial question of law in the memorandum of appeal. However, the present appeal was filed in the year 1987 and was admitted by this Court vide order dated 29.10.1987 without formulation of any substantial question of law as required by Section 100(4) C.P.C. 15. It is a settled position of law that Court at its discretion instead of decreeing for specific performance can direct refund of earnest money. In the present case, learned first Appellate Court RSA No.2815 of 1987 6 has exercised its discretion, not to grant decree for specific performance and to grant decree for refund of earnest money. Agreement in question is dated 5.9.1981 and total sale consideration agreed was Rs.45,00/- for 99 square yards and 15 inches and now after almost 29 years from the date of agreement, it would not be equitable to reverse the discretion exercised by the first Appellate Court. In my view, no substantial question of law arises. Hence, in the peculiar facts and circumstances of the case, no substantial question of law arises in the present case and no interference is called for. 16. The appeal being devoid of merit, must fail, and the same is dismissed with no order as to costs. (ALOK SINGH) 17th March, 2010 JUDGE ashish