RSA No. 4886 of 2009 -1- In the High Court of Punjab & Haryana at Chandigarh RSA No. 4886 of 2009 (O&M) Date of decision : 22.12.2009 Eider Finance Co. (P) Ltd. ... Appellant vs Dhanpat and others .... Respondents Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. K. K. Saini, Advocate, for the appellant. Rajesh Bindal J. Plaintiff is in appeal before this court against the concurrent findings of both the courts below whereby the suit filed by it for possession by way of specific performance of agreement to sell dated 26.2.1997, was dismissed. Briefly the facts as are available on record are that the appellant- plaintiff filed a suit against the respondents for possession by way of specific performance of agreement to sell dated 26.2.1997 for land measuring 55 kanals 10 marlas for a total sum of Rs. 2,77,500/-, out of which Rs. 1,75,000/- was paid as earnest money. It was mentioned in the agreement to sell that sale-deed was to be executed after the decision of Civil Suit No. 202 of 1996 pending in the court of Additional Civil Judge (Senior Division), Balachaur and in case of failure, the respondents-defendants was liable to pay Rs. 3,50,000/- to the appellant-plaintiff. In the alternative, the agreement to sell could be enforced through the court. Civil suit mentioned in the agreement to sell was decided on 23.10.2000. As the respondents-defendants failed to execute the sale-deed, the suit was filed. The respondents-defendants contested the suit, inter-alia, with the pleas that there is no privity of contract with the plaintiff-company and defendants. The alleged agreement to sell dated 26.2.1997 does not bear signatures/ thumb impression of Varinder Mohan Sharma, through whom, the plaintiff-company alleged to have entered into agreement to sell with the defendants. As there are cuttings, over writings and alterations on the alleged agreement to sell, therefore, the same cannot be enforced. Initially, in the absence of any evidence on record, the suit was dismissed vide judgment dated 20.2.2004. Feeling aggrieved against the judgment of the trial court, the appellant filed appeal in which the matter was referred back vide judgment dated 25.1.2006 by granting one opportunity to the appellant to lead entire evidence. However, even on that date, the evidence was led in part and was RSA No. 4886 of 2009 -2- not concluded. In view of the order passed by the learned Lower Appellate Court at that time, the evidence of the appellant-plaintiff was closed and the suit was dismissed. Even in appeal, the appellant-plaintiff failed. It is the aforesaid judgments and decrees which are sought to be impugned by the appellant. It is also required to be noticed that there is a delay of 107 days in filing the appeal for which an application for condonation of delay has been filed. Learned counsel for the appellant-plaintiff submitted that delay in filing of the appeal occurred on account of the fact that the counsel who was engaged in the court below did not supply the certified copy of the judgment and decree of the learned Lower Appellate Court dated 20.5.2009 within the period of limitation. As far as the merits of the appeal are concerned, it was submitted that the appellant had not been afforded opportunity to lead its evidence. The agreement to sell could not possibly be denied by the respondents-defendants and in case proper opportunity had been granted to the appellant, the same could have been proved. As the respondents-defendants had become greedy on account of rise in the prices of land and did not want to part with the land at the price settled between the parties, the dispute arose. After hearing learned counsel for the appellant, I do not find any merit in the submissions made. The conduct of the appellant-plaintiff from the very beginning deserves to be noticed. Agreement to sell dated 26.2.1997 is sought to be enforced by filing the suit for possession on 18.1.2003. One of the terms of the agreement projected is that the sale-deed was to be registered after the decision of the civil suit which admittedly was decided on 23.10.2000. Further even after the filing of the suit and framing of issues on 23.5.2003, the appellant-plaintiff led no evidence and the suit was dismissed for want of evidence vide judgment dated 20.2.2004. In appeal against aforesaid judgment, the learned Lower Appellate court vide judgment dated 25.1.2006, while setting aside the judgment and decree of the trial court, remanded the case back with a direction that the appellant-plaintiff shall be afforded one opportunity to conclude its entire evidence and after giving reasonable opportunity to the respondents-defendants, the suit shall be decided afresh. This was subject to payment of Rs. 1,200/- as costs. After the judgment of the learned Lower Appellate court dated 25.1.2006, the matter was posted for 9.3.2006 for evidence of the appellant-plaintiff, on which date statement of one PW was recorded. No other witness was brought and even the costs were not paid. Considering the limited opportunity granted to the appellant by the learned court below, the evidence of the appellant was again closed and considering the material RSA No. 4886 of 2009 -3- on record where the appellant failed to make out a case and discharge the burden cast upon him, dismissed the suit. The appellant filed appeal before the learned Lower Appellate Court. The observations of the learned court below while dismissing the appeal filed by the appellant certainly deserves reference. Para 15 thereof is extracted below:- “Apart from above, even the appeal filed by the plaintiff company was delayed intentionally. Perusal of record shows that the appeal was filed by plaintiff company on 12-8-2006 and on 29-8-2006 notice of the application was ordered to be issued to respondents on filing PF/RC/AD/Copies for 11-10-2006. Thereafter, notice issued to respondents were not received back served or unserved. From 20-12-2006, the case was adjourned and appellant was directed to furnish correct address/ registered coverers / acknowledgment due for the service of respondents, however, the appellants took 12 opportunities till 21-2-2009 for filing the RC/AD/CA but same was not filed. Thereafter, on 29-4-2009 respondents were served and they appeared through their counsel and case was finally heard.” Considering the aforesaid facts regarding the conduct of the appellant and also the fact that it is practically a case of no evidence as only oral evidence of one PW was recorded in support of the case. There being no evidence on record, in my opinion, no illegality has been committed by the learned court below in dismissing the suit filed by the appellant. The findings recorded are plain and simple findings of fact giving rise to no question of law much less a substantial question of law. The appeal deserves dismissal and accordingly the same is dismissed. As there is no merit in the appeal, I do not deem it appropriate to consider the claim made in the application for condonation of delay, the bonafide of which may be doubtful considering the conduct of the appellant even in the court below as has been referred to above. Accordingly the application for condonation of delay is also dismissed. 22.12.2009 ( Rajesh Bindal) vs. Judge