Dismissed

Dev Raj v. Jaswinder Kaur and Anr.

Punjab & Haryana HC6 Mar 2012RSA/1169/2010

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal filed by a defendant-appellant challenging a decree for refund of earnest money and damages. The applicant also sought to lead additional evidence under Order 41 Rule 21 CPC under CPC and Section 96 of the CPC to prove the plaintiff-respondent was not present at the Sub-Registrar on the relevant date, finding this an impermissible plea.

What did the court decide?

Appeal dismissed and application to lead additional evidence dismissed.

Dev Raj Vs Jaswinder Kaur and Anr. — Specific Performance | Punjab & Haryana HC (2012)

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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C.M. No. 2902-C of 2012 & RSA No. 1169 of 2010 (O&M) Date of Decision: 6.3.2012.

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Smt. Veena Rani & others (L.Rs of Dev Raj)

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--Appellants

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Versus

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Jaswinder Kaur and others (L.Rs of Bahadur Singh) --Respondents CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA. Present:Mr. N.S. Kandhola, Advocate for the applicant-appellant.

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TEJINDER SINGH DHINDSA.J

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The plaintiff filed a suit for possession by way of specific performance regarding the suit property in relation to agreement to sell dated 21.4.2001. It was pleaded that a sum of Rs.1,15,000/- was paid towards earnest money to the defendant on 21.4.2001 itself out of a total sale consideration of Rs.2,25,000/-. The last date for execution of the sale deed was stipulated as 20.9.2001. On 19.9.2001 the defendant approached the plaintiff to extend the date for execution of the sale deed and accordingly by mutual consent the date was extended up to 22.10.2001. On 19.9.2001 a further sum of Rs.18,000/- was paid by the plaintiff and as such the defendant received a total amount of Rs.1,33,000/-. The plaintiff pleaded that he was always ready and willing to perform his part of the contract on 22.10.2001 and he was present in the office of Sub Registrar, Chamkaur Sahib along with the balance sale consideration and had even got an affidavit attested from the Executive Magistrate, Chamkaur Sahib so as to demonstrate his presence on such date. However, the defendant had not performed his part of the contract and accordingly the suit for specific

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RSA No. 1169 of 2010 (O&M) -2-

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performance had been filed and in the alternative relief of recovery of Rs.2,66,000/- i.e. Rs.1,33,000/- as refund of earnest money and Rs.1,33,000/- towards damages along with interest had also been prayed for.

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The defendant contested the suit and admitted execution of the agreement to sell dated 21.4.2001. Even the receipt of Rs.1,15,000/initially towards earnest money was admitted. Defendant further stated that on 19.9.2001 the plaintiff could not arrange the balance sale consideration and had in fact arranged an amount of Rs.18,000/- only which he had received and accordingly the last date for execution of the sale deed had been extended. The stand of the defendant was that it was the plaintiff, who was at fault since he could not arrange the balance sale consideration and get the sale deed executed and as such as per terms and conditions of the agreement the earnest money stood forfeited.

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The Trial Court upon the pleadings of the parties framed the

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following issues:-

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“1. Whether the plaintiff remained ready and willing to perform his part of contract, as alleged?OPP.

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1. Whether the suit is not in proper form and not maintainable?OPD.

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Whether the suit is bad for mis-joinder and non-joinder of necessary parties?OPD.

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Whether the plaintiff himself failed to get the sale deed executed as alleged, if so to what effect?OPD.

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Whether the plaintiff is entitled for specific performance of the agreement to sell?OPP.

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If the above issue is proved, whether in the alternative plaintiff is entitled for any relief?OPP.

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Relief.”

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RSA No. 1169 of 2010 (O&M)

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-3-

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Having heard respective counsel for the parties and scanned the evidence led on record the suit filed by the plaintiff was decreed for recovery of Rs.2,66,000/- along with interest @ 12% from the day of the payment of the earnest money till the realization of the decretal amount. The relief regarding specific performance of the agreement to sell dated 21.4.2001 was declined. The defendant-appellant being aggrieved of the judgement and decree dated 6.6.2008 passed by the Trial Court preferred a civil appeal and vide impugned judgement dated 6.8.2009 passed by the First Appellate Court the appeal has been dismissed and the judgement of the Trial Court has been affirmed. Resultant, the defendant-appellant is in second appeal before this Court.

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I have heard Mr. N.S. Kandhola, learned counsel appearing for the appellant at length.

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The sole contention raised by learned counsel is that the findings of the courts below in holding the plaintiff-respondent to be ready and willing to perform the contract are perverse. Learned counsel has even filed C.M. No. 2902-C of 2012 i.e. the application under Order 41 Rule 27 of the Code of Civil Procedure seeking permission for producing additional evidence at the stage of second appeal so as to demonstrate that the plaintiff-respondent on the crucial date i.e. 22.10.2001 had not been present in the office of Sub Registrar, Chamkaur Sahib and as such would contend that the readiness and willingness of the plaintiff-respondent having not been so proved, the suit even for the alternative relief of refund of earnest money along with damages could not have been decreed.

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I have given my thoughtful consideration to the submissions raised by learned counsel and have perused the case file. I find that the

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RSA No. 1169 of 2010 (O&M)

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-4-

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present second appeal as also the application under Order 41 Rule 27 seeking to lead additional evidence deserves to be dismissed for the reasons recorded hereinafter.

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The execution of the agreement to sell dated 21.4.2001 has been admitted by the appellant. Further there is no dispute as regards the payment of earnest money i.e. Rs.1,15,000/- initially on 21.4.2001 and an additional sum of Rs.18,000/- thereafter. As regards readiness and willingness to perform his part of the contract the plaintiff-respondent duly proved on record an affidavit to show his presence in the office of Sub Registrar, Chamkaur Sahib on the last date for execution of the sale deed i.e. 22.10.2001. The suit for possession by way of specific performance was also instituted without any delay thereafter i.e. On 7.12.2001. The Trial Court while declining the main relief towards specific performance of the contract but at the same time granting the alternative relief of refund of earnest money along with damages has taken notice of the fact that the khasra numbers owned and possessed by the defendant as per jamabandi (Ex.P-3) do not tally with the khasra numbers mentioned in the agreement to sell or as mentioned in the plaint. Accordingly, the Trial Court on account of the fact that the defendant himself had admitted the execution of the agreement to sell in favour of the plaintiff and having also not denied the receipt of the earnest money, has concluded in favour of the grant of alternate relief. Such view has been affirmed by the First Appellate Court.

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I find no perversity in the findings recorded by the courts

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below.

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As regards the application under Order 41 Rule 27 for leading additional evidence filed in the present second appeal, it would require

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RSA No. 1169 of 2010 (O&M) -5-

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notice that the plaintiff had at the very threshold at the time of instituting the suit in the year 2001 clearly averred that he had been ready and willing to perform his part of the contract. The defendant-present appellant opposed such plea. Accordingly, the Trial Court had framed a specific issue as regards the plaintiff having remained ready and willing to perform his part of the contract. It was incumbent upon the defendant-appellant to have led evidence on record before the Trial Court itself to rebut the plea of the plaintiff, who had stated to have remained always ready and willing to perform his part of the contract. It was open for the defendant-appellant to have led such additional evidence even before the First Appellate Court which had sufficient powers to entertain such an application in exercise of jurisdiction under Section 96 of the Code of Civil Procedure. The present application filed at the stage of second appeal under the given facts and circumstances cannot be entertained as the appellant clearly has been remiss and has not been diligent.

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Another material fact that weighs with me in not permitting the application for leading the additional evidence in second appeal is that the applicant by virtue of filing such application wishes to demonstrate that the plaintiff-respondent had not come present before the competent authority on the last date of execution of the sale deed. In this regard it is noticed that the appellant himself had admitted that he had not been present in the office of Sub Registrar, Chamkaur Sahib on 22.10.2001. In the light of such glaring admission at the hands of the appellant, it will not be open for him to raise a flaw in the conduct of the plaintiff-respondent towards his readiness and willingness to perform his part of the contract is concerned.

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RSA No. 1169 of 2010 (O&M)

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-6-

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Even otherwise, the presence of the plaintiff-respondent before the Registering Authority on the last date of execution of the sale deed may certainly be a relevant factor but the same would not be held to be conclusive so as to reflect upon his readiness and willingness is concerned. The conduct of the party seeking specific performance has to be seen and inferred as a whole and from all attendant circumstances. Admittedly, out of a total sale consideration of Rs.2,25,000/-, a sum of Rs.1,33,000/- already stood paid. After the last date for execution of the sale deed i.e. 22.10.2001 the plaintiff-respondent had instituted the present suit for specific performance without delay i.e on 7.12.2002. Such facts were clear pointers towards the plaintiff-respondent having been ready and willing to perform his part of contract.

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No question of law much less a substantial question of law arises for consideration in the present second appeal.

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For the reasons recorded above, the application seeking to lead additional evidence as also the main second appeal are dismissed. Appeal dismissed.

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(TEJINDER SINGH DHINDSA) JUDGE

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6.3.2012. lucky

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Whether to be reported? Yes.

Dev Raj v. Jaswinder Kaur and Anr.

Case brief

What is this about?

What did the court decide?

Dev Raj v. Jaswinder Kaur and Anr.

Case brief

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What did the court decide?

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