RSA No.743 of 2011 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.743 of 2011 (O & M) Date of Decision: 07.03.2011 Joginder Singh ……Appellant Versus Mohinder Singh …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. T.N. Sarup, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.2045-C of 2011 Although no ground for granting exemption from filing certified copies of judgments and decrees of the Courts below is made out, yet since the appeal is being disposed of finally on merits, the instant application is allowed, subject to all just exceptions. CM No.2047-C of 2011 This is application for condonation of delay of 554 days in filing the appeal. It is alleged in the application that cross appeals pertaining to some other land (not the suit land of the instant lis) were pending between sons of the parties, but appeal preferred by appellant herein was dismissed whereas cross appeal preferred in the other litigation by son of the respondent herein was kept pending. Parties were making efforts for amicable settlement and, therefore, the instant second appeal was not filed. However, when appeal filed RSA No.743 of 2011 (O & M) - 2 - by respondent’s son in the other lis was allowed by the first appellate Court, then the respondent backed out of the compromise resulting in delay in filing the instant second appeal. In addition to it, the appellant had misplaced the brief of the present case in his house and traced the same with great efforts. Appellant also spent time in arranging money for filing the instant second appeal. I have heard learned counsel for the applicant-appellant and perused the case file. Learned counsel for the applicant-appellant reiterated the version stated in the application. I have carefully considered the same. I find myself completely unable to accept the prayer of applicant-appellant for condonation of long delay of almost 1½ years. There are only vague, general and specious allegations in the application for seeking condonation of long delay of almost 18 months. The applicant-appellant has not stated as to when the appeal filed by him or his son in the other suit was decided by the lower appellate Court. Similarly applicant-appellant has not alleged as to when the appeal filed in the other suit by respondent’s son was decided by the lower appellate Court. These crucial dates have been intentionally withheld by the appellant to make out a false ground for condonation of long delay in filing the instant second appeal. Moreover, it is alleged in the application that the matter was being compromised by the parties and it is also alleged in the application that the respondent backed out of the compromise. However, there is no allegation in the application that any compromise was arrived at between the parties. Consequently, the question of backing out of the compromise by the respondent did not arise. RSA No.743 of 2011 (O & M) - 3 - The applicant-appellant has also alleged that the brief had been misplaced by him in his own house and was traced with great difficulty. However, again the applicant-appellant has concealed as to when the brief was misplaced and when it was traced out. Similar is the position regarding arranging of money from relatives for filing the instant second appeal. It is thus manifest that the applicant-appellant has made very vague, general and specious averments in the application which make out no ground much less sufficient ground for condonation of long delay of 554 days in filing the appeal. If such long delay is condoned on such vague, general and specious allegations, then the law of limitation would be completely defeated. This cannot be permitted. For the reasons aforesaid, I find no merit in the instant application which is accordingly dismissed. Main appeal. Since application for condonation of delay in filing the appeal has been dismissed, the appeal is liable to dismissal as time barred. However, even on merits, the appellant cannot succeed. Joginder Singh-defendant having failed in both the Copurts below, has filed the instant second appeal. Respondent-plaintiff-Mohinder Singh filed suit against defendant-appellant for specific performance of the agreement to sell dated 12.03.1996 alleging that the defendant agreed to sell the suit land to the plaintiff at the rate of Rs.24000/- per acre and the defendant received Rs.12000/- as earnest money and executed the aforesaid agreement. The suit land had been allotted to the RSA No.743 of 2011 (O & M) - 4 - defendant and its price was to be deposited with the Government. After transfer of ownership rights to defendant and sanction of mutation in his favour, the sale deed was to be executed in favour of plaintiff. Possession of the suit land was delivered to the plaintiff at the time of agreement. On coming to know that sale certificate had been issued in favour of the defendant by the Government, the plaintiff verified the same from Patwari. The plaintiff then requested the defendant to execute the sale deed in terms of the agreement, but the defendant refused to do so necessitating the filing of the suit. The defendant admitted the impugned agreement, but pleaded that he was not even owner of the suit land at the time of the agreement and, therefore, he could not alienate the suit land. Defendant also referred to some other agreement executed by Tara Singh in favour of defendant’s son. The defendant alleged that both the agreements were executed on the same date and no consideration was paid to each other. Since Tara Singh has not executed sale deed pursuant to other agreement, the impugned agreement is also liable to be cancelled. Various other pleas were also raised. Learned Civil Judge (Junior Division), Patti vide judgment and decree dated 07.01.2006 decreed the plaintiff’s suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Taran Tarn vide judgment and decree dated 24.02.2009. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. RSA No.743 of 2011 (O & M) - 5 - As noticed hereinabove, the defendant in the written statement itself has impliedly admitted the impugned agreement. Moreover, even defendant’s witness Nihal Singh, who is also attesting witness of the agreement, admitted the impugned agreement and has also stated that earnest money of Rs.12000/- was paid by the plaintiff to the defendant at the time of agreement. In addition to it, the plaintiff has led evidence to prove due execution of the impugned agreement. The plaintiff besides himself appearing in the witness box has examined Pargat Singh PW-2, who is attesting witness of the agreement. Both of them have stated according to the plaintiff’s version. Thus execution of the impugned agreement stands fully proved. There is recital in the agreement that earnest money of Rs.12000/- was paid to the defendant at the time of the agreement. There is also plaintiff’s evidence to this effect in the form of statements of plaintiff himself and Pargat Singh attesting witness of the agreement. There is also statement of defendant’s witness Nihal Singh, who is also attesting witness of the agreement, regarding payment of the earnest money. Consequently defendant’s version that earnest money was not paid cannot be accepted. The plaintiff has always been ready and willing to perform his part of the contract. The defendant has committed breach of the agreement. Defendant’s sons had already filed suit for specific performance of the other agreement executed in their favour. Consequently, the plaintiff also filed suit for specific performance of the impugned agreement. The suit is also within limitation as sale deed was to be executed after execution of conveyance deed in favour of defendant. Computing the limitation period accordingly, the suit has been rightly found to be within limitation. It may be added that plaintiff and RSA No.743 of 2011 (O & M) - 6 - defendant are real brothers. They had entered into the impugned agreement. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by both the Courts below in favour of plaintiff-respondent is fully justified by the evidence on record and is supported by cogent reasons recorded by both the Courts below. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for adjudication in the instant second appeal. Accordingly, the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 07.03.2011 A.kaundal