R.S.A. No. 4287 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 4287 of 2008 (O&M) Date of Decision : 20.5.2009 Hardeep Singh .......... Appellant Versus Ram Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Rakesh Gupta, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 12794-C of 2008 This application under Section 151 of the Code of Civil Procedure has been moved on behalf of the applicant / appellant for placing on record the statement of respondent in the connecting suit. In absence of an application under Order 41 Rule 27 of CPC making out a case for leading additional evidence, there is no provision under law by which the documents can be placed on record in regular second appeal. The application is dismissed being not competent. R.S.A. No. 4287 of 2008, C.M. No. 12795-C of 2008 & C.M. No. 12796-C of 2008 This regular second appeal is directed against the judgment and R.S.A. No. 4287 of 2008 2 decree dated 2.8.2007 passed by the learned Courts below vide which suit filed by the plaintiff / appellant for possession by way of specific performance of agreement to sell dated 7.9.1996 on the pleading that the land measuring 11K-9M representing 1/20th share of the total land measuring 228K-18M, was agreed to be sold to the plaintiff for a consideration of Rs. 1,50,000/- per acre stands dismissed. It was pleaded that a sum of Rs. 2,00,000/- (Rupees two lac only) was received as earnest money. The sale deed was agreed to be executed on 6.9.1997. That the plaintiff / appellant claimed that he was always willing and still willing to perform his part of contract. The plaintiff also claimed that as the date fixed for execution of the sale deed was a gazetted holiday, he appeared before the Sub Registrar, Pundri on the opening day after the holidays but the defendant did not turn up, thus, it was claimed that the defendant breached the contract. The defendant contested the suit by denying having executed any agreement to sell dated 7.9.1996. The plaintiff failed to produce any evidence to prove the agreement to sell dated 7.9.1996 and, therefore, issue No.1, which reads as under :- “Whether the defendant executed an agreement to sell dated 7.9.1996 in favour of the plaintiff in respect of the suit land on receipt of earnest money of Rs. 2 lacs ?” was decided against the plaintiff / appellant. The suit was dismissed. On appeal, the findings recorded by the learned trial Court stand affirmed by the learned lower appellate Court . R.S.A. No. 4287 of 2008 3 The learned counsel for the appellant contends that the appeal raises the following substantial questions of law :- 1. Whether the learned Courts below erred in misreading Ex. PX ? 2. Whether in view of admission by the defendant regarding execution of agreement to sell and receipt of earnest money of Rs. 2,00,000/- (Rupees two lac only) the suit deserved to be decreed ? In support of the substantial questions of law the learned counsel for the appellant contends that the learned Courts below have completely ignored the admission made by the defendant / respondent admitting the execution of agreement to sell as well as receipt of earnest money. However, this contention of the learned counsel for the appellant is totally misconceived. Ex.PX is not a document proved in the evidence. It was the statement made in some other suit which was neither proved nor brought on record. No evidence was led to prove the agreement in spite of the fact that defendant / respondent denied execution of the agreement, sought to be enforced by the plaintiff / appellant. The findings recorded by the learned Courts below cannot be said to be outcome of misreading of Ex. PX as contended. The substantial questions of law therefore are to be answered against the appellant, as plaintiff failed to lead any evidence in support of case set up. This appeal is accompanied by an application under Section 5 of the Limitation Act for condoning the delay of 297 days in filing the R.S.A. No. 4287 of 2008 4 appeal. The averments made in the application read as under :- “5. That after the dismissal of the appeal filed by the applicant / appellant, a Panchayat was convened in the village in which the respondent demanded a further sum of Rs. 6.30 lacs in addition to the amount already received by him for transferring the entire area of 3 ½ acres which is the subject matter of the present appeal. Because of the intervention of the Panchayat, the applicant agreed to pay a further sum of Rs. 6.30 lacs. It was decided in the Panchayat to keep the money with the respectable persons of the village and as per the understanding arrived at in the Panchayat, the applicant deposited a sum of Rs. 6.30 lacs with Dashrath Singh s/o Roop Chand r/o Sirsal. 6. That after the additional amount was given by the applicant to the third person, the respondent kept on delaying the registration of the sale deed in favour of the applicant on one pretext or the other. The delay in filing the present appeal has occurred because of the genuine belief of the applicant that all the disputes between the applicant and the respondent stands settled because of the intervention of the Panchayat since the applicant had agreed to pay a further sum of Rs. 6.30 lacs for the entire area of 3 ½ acres sold by the respondent to the applicant which included the area which is the subject matter of the present appeal. 7. That since the respondent in spite of delaying the whole things has still not executed the sale deed in favour of the applicant/ appellant, the applicant is filing the present appeal. The delay of 293 days has occurred R.S.A. No. 4287 of 2008 5 because of the reasons mentioned above and is not willful or because of the negligence of the applicant as such is excusable.” Though the application is supported by an affidavit but nothing has been brought on record by way of resolution of the Gram Panchayat showing the compromise between the parties, nor any affidavit of Dashrath Singh has been produced in order to prove the deposit of amount with him, as alleged. In absence of any material in support of the averments made in the application cannot be accepted. Finding no merit, the C.M. is dismissed. Consequently the appeal is dismissed on merit as well as time barred. 20.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE