Regular Second Appeal No. 998 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 998 of 2011 (O&M) Date of decision : March 22, 2011 Gurdev Singh ....Appellant versus Rajwinder Kumar ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. GS Sidhu, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No.2722.C of 2011 Allowed as prayed for. CM No. 2723.C of 2011 This is application for condonation of delay of 308 days in refiling the appeal. It is alleged that after the appeal was filed within limitation period, it was returned by the Registry on 28.1.2010 with some objections. The case was refiled on 27.4.2010 after removing the objections, but the Registry again raised some objections and returned the case. Thereafter the case was misplaced in the office of the counsel and was not traceable. Regular Second Appeal No. 998 of 2011 (O&M) -2- I have heard learned counsel for the applicant-appellant and perused the case file. Learned counsel for the appellant reiterated the averments made in the application. Appeal is required to be refiled within 40 days. For the first time, the appeal was returned with objections on 28.1.2010 but was refiled on 27.4.2010 i.e. after three months but there is no explanation for this delay. For the second time, the appeal was returned immediately thereafter but it was refiled on 13.1.2011. The only explanation is that the case was misplaced in the office of the counsel. It is not even averred as to how and when the case was misplaced and when it was traced. There are only vague and general averments which are too specious to be accepted. Long delay of 10 months cannot be condoned on the basis of such vague, general and specious averments. The application is, therefore, dismissed. RSA No. 998 of 2011 Since application for condonation of delay in refiling the appeal has been dismissed, the appeal is liable to dismissal on this score. However, even on merits, the appellant cannot succeed. Defendant Gurdev Singh having failed in both the courts below has filed the instant second appeal. Respondent Rajwinder Kumar filed suit against defendant- appellant for specific performance of the agreement to sell dated 21.6.2003 with ancillary relief of permanent injunction. The plaintiff alleged that the defendant agreed to sell the suit land measuring 14 kanals to the plaintiff for Rs 3,01,000/- i.e. at the rate of Rs 21,500/- per kanal. The defendant Regular Second Appeal No. 998 of 2011 (O&M) -3- received 2 lacs as earnest money. Sale deed was agreed to be executed upto 31.12.2003. The plaintiff after informing the defendant went to the office of Sub Registrar on 30.12.2003 to get the sale deed executed in terms of the agreement, but the defendant did not turn up and committed breach of the agreement. The plaintiff always remained ready and willing to perform his part of the contract. Defendant broadly denied the plaint averments. The defendant denied execution of the impugned agreement and receipt of earnest money. The defendant, however, also pleaded that impugned agreement is result of fraud and misrepresentation. The defendant further pleaded that he was ever ready to perform his part of the contract and the plaintiff himself did not appear to get the sale deed executed. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Talwandi Sabo vide judgment and decree dated 21.10.2008 decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge (Fast Track Court), Bathinda vide judgment and decree dated 8.10.2009. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The plaintiff in order to prove his case himself appeared in the witness box as PW2 and examined Ajay Kumar attesting witness of the agreement as PW1. Both of them have broadly stated according to Regular Second Appeal No. 998 of 2011 (O&M) -4- plaintiff's version. Plaintiff also examined Registry Clerk as PW3 to prove plaintiff's readiness and willingness to perform his part of the contract. On the other hand, defendant himself appeared as DW2 and examined Gurcharan Singh DW1. They broadly stated according to the defendant's version Plaintiff has led cogent evidence to prove his case. Plaintiff's statement is supported by Ajay Kumar PW1 attesting witness of the agreement. Statements of both these witnesses prove that the agreement was duly executed by the defendant who also received Rs 2 lacs from the plaintiff at that time. On the other hand, defendant has taken self- destructive contradictory stand. On the one hand, the defendant even denied the execution of the agreement and on the other hand, the defendant pleaded that the impugned agreement is result of fraud and misrepresentation which would imply execution of impugned agreement by the defendant although as a result of fraud and misrepresentation. The defendant went a step further by pleading that he was ever ready to perform his part of the contract. This plea would mean that the agreement was duly executed by the defendant and he was also ready to perform his part of the contract. Thus, the stand taken by the defendant is also sufficient to prove the plaintiff's case, in addition to plaintiff's own evidence which is also sufficient to prove his case. It is significant to notice that the defendant has not pleaded any particulars of alleged fraud and misrepresentation nor has led any cogent evidence to substantiate the same. Titar Singh was the other witness of the agreement and he was brought by the defendant to attest the Regular Second Appeal No. 998 of 2011 (O&M) -5- agreement but Titar Singh has not been examined by the defendant to prove any fraud or misrepresentation in the execution of the impugned agreement. The plaintiff appeared before the Sub Registrar on 30.12.2003 to get the sale deed executed in terms of the impugned agreement and got his affidavit attested. The plaintiff was not cross-examined on this aspect. The affidavit was also proved by the Registry Clerk PW3. Thus, plaintiff's readiness and willingness to perform his part of the contract is also established. This conclusion is further corroborated by the filing of the instant suit. There is no evidence on record to show that the defendant was ever ready to perform his part of the contract or that the plaintiff committed breach of the agreement. Learned counsel for the appellant contended that Ajay Kumar PW1 stated that bargain had also been struck at the time of execution of the agreement itself. However, this circumstance has no bearing on the validity of the impugned agreement. The agreement cannot be discarded merely because it was executed immediately after the bargain was settled. Learned counsel for the appellant also contended that the agreement is not sufficiently stamped. However, said objection stood removed by the trial court vide order dated 8.9.2008. There is concurrent finding in favour of the plaintiff-respondent by both the courts below. The said finding is based on appreciation of evidence led by the parties and is supported by reasons recorded by the lower courts. The said finding is not shown to be perverse or illegal nor it is based on misreading or misrepresentation of evidence and consequently Regular Second Appeal No. 998 of 2011 (O&M) -6- the said finding does not warrant interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed in limine. ( L.N. Mittal ) March 22, 2011 Judge 'dalbir'