R.S.A. No. 146 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- R.S.A. No. 146 of 2010 (O&M) Date of decision:- 10.11.2010 Lakhwinder Singh ... Appellant Versus Gopal Singh ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Vikas Singh, Advocate, for the appellant. Mr. S.S.Rangi, Advocate, for the respondent. Gurdev Singh, J (oral) This second appeal has been preferred by Lakhwinder Singh – appellant/defendant, against whom the suit filed by Gopal Singh – respondent/plaintiff for possession of the property in dispute and permanent injunction was decreed by Additional Civil Judge (Sr.Division) Patiala on 2.5.2007 and the appeal filed by him against that judgment and decree was dismissed by the Additional District Judge Patiala on 30.9.2009. The plaintiff pleaded in his plaint that he entered into an agreement dated 15.5.2002 for the sale of the plot measuring 152 Sq. Yards comprising in Khasra No. 680 min at the rate of ` 550/- per Sq. Yard in favour of the defendant and received ` 5000/- as earnest money. It was agreed between them that the balance amount shall be paid in monthly installments of `1,000/- each and after the payment of the total sale consideration he shall execute the sale deed in favour of the defendant and R.S.A. No. 146 of 2010 (O&M) -2- in case of the failure of the defendant to pay any of the installment the agreement was to stand cancelled. The possession of the plot was delivered to the defendant at the time of execution of the agreement. The defendant paid installment only upto 16.11.2002 and thereafter stopped paying any such installment and thus violated the terms and conditions of the agreement. Therefore, the agreement stood cancelled and earnest money, forfeited. Resultantly, the defendant is liable to deliver back this possession to him, which he failed to do so in spite of repeated requests. The suit of the plaintiff was contested by the defendant, who pleaded in his written statement that no such agreement to sell was executed on 15.5.2002 and such an agreement was executed on 28.5.2002. In fact after few months of the execution of the agreement the market rate of his plot raised and the plaintiff started demanding more money. On 1.1.2004 plaintiff along with 10/15 persons criminally trespassed into his house and also threatened to dispossess him from the plot in dispute. On 4.1.2004, the plaintiff again forcibly entered his house along with some other persons and tried to dispossess him regarding which FIR was got registered in the Police Station Sadar Patiala. He never refused to pay any installment to the plaintiff and it was he, who refused to accept the same. No cause of action has been arisen to the plaintiff to file the suit against him and the same is not maintainable. On the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether plaintiff is owner of the suit property?OPP 2. Whether plaintiff is entitled to possession of the suit R.S.A. No. 146 of 2010 (O&M) -3- property?OPP 3. Whether plaintiff is entitled for injunction as prayed for?OPP 4. Whether suit of the plaintiff is not maintainable in the present form?OPD 5. Whether plaintiff has no cause of action to file present suit?OPD. 6. Relief. To succeed in the suit the plaintiff examined himself as PW1. In rebuttal, defendant himself entered to witness box as DW-1. After going through that evidence and hearing learned counsel on their behalf, the learned trial Court decreed the suit of the plaintiff and the appeal preferred against that judgment and decree was dismissed, as afore-said. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the defendant that no replication was filed by the plaintiff to the written statement of the defendant in which he specifically pleaded that he never refused to pay any of the installement as per the terms and conditions of the agreement and it was the plaintiff who refused to accept the same as the prices had gone up. Thus the plaintiff is deemed to have admitted the plea of the defendant. Therefore, if there is any breach of the terms and conditions of the agreement, it was on the part of the plaintiff himself and as such he could not have maintained the suit for possession. Admittedly no replication was filed to the written statement. It has been specifically pleaded by the plaintiff in his plaint that the defendant did not pay any installment after January 2004 and it was in reply to that R.S.A. No. 146 of 2010 (O&M) -4- plea that the plaintiff submitted in his written statement that it was the plaintiff who refused to accept the installment. In these circumstances, the non-filing of the replication does not amount to the implied admission by the plaintiff. Concurrent findings were recorded against the appellant by both the lower Courts. Even if for arguments sake if it is assumed that it was the plaintiff who refused to accept the installments, even then it cannot be said that the agreement is not deemed to have been cancelled. In case of refusal of the plaintiff to receive the installment, the defendant was to deposit the same in the Court by resorting to Section 31 of Punjab Relief of Indebtedness Act 1934. The same was not resorted by the defendant. In these circumstances the lower Courts correctly concluded that the default in non-payment of the installment was on the part of the defendant. No substantial question of law arises in the present appeal and the same is dismissed accordingly. November 10, 2010 (Gurdev Singh) tripti Judge