Dismissed

Joginder Kumar v. Gurmej Singh and Anrs

Punjab & Haryana HC3 Jul 2013RSA/129/2012

Case brief

AI extract

What is this about?

In an appeal against a dismissal of a suit for recovery and damages arising from a land digging agreement, the High Court held that the appellate court's findings were not perverse. The court noted the appellant failed to prove obstruction, omitted to examine required witnesses, and was barred by prior litigation, thus dismissing the appeal.

What did the court decide?

The appeal was dismissed; no relief was granted to the appellant.

Joginder Kumar Vs Gurmej Singh and Anrs — Specific Performance | Punjab & Haryana HC (2013)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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RSA No.129 of 2012

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Date of decision: 3.7.2013

Joginder Kumar

-----appellant(s)

Vs.

Gurmej Singh & anr.

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-----Respondent(s)

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CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG

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Whether reporters of local newspapers may be allowed to see judgment?

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To be referred to reporters or not?

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Whether the judgment should be reported in the Digest?

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Present:Mr. R.K. Arya, Advocate for the appellant.

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RAKESH KUMAR GARG, J.

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As per the facts on record, plaintiff-appellant filed a suit for recovery of Rs.2,36,000/- i.e. Rs.1,86,000/- as principal amount and Rs.50,000/- as damages along with interest against the defendant-respondents, alleging that the defendant-Gulzar Singh was the owner in possession of land measuring 96 kanals bearing khasra Nos.10//11(8-0), 12(8-0), 13(7-12), 18(7-12), 19(80), 20(8-0), 21/1(4-9), 10//22(7-10), 23(7-4), 11//15(8-0), 16(8-0), 17//3(6-5), 9//8 min (7-8), khata / khatauni nos.32/91, 34/98 situated at village Issapur, Tehsil Ajnala, District Amritsar. The

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defendant entered into an agreement dated 18.9.2001 with the plaintiff for the purpose of making bricks by digging earth from land measuring 48 kanals bearing khasra nos.10//11(8-0), 12(80), 11//15(8-0), 16(8-0), 10//20(8-0), 21/1(4-9), 22 min (3-11), min east, at the rate of Rs.31,000/- per acre and received Rs.1,86,000/- as total sale consideration in cash. The agreement was reduced into writing and the same was executed in the presence of witnesses who put their respective signatures and thumb impressions on the said agreement as token of its attestation. As per the terms and conditions of the agreement, the appellant was to start digging of earth on 19.9.2003 for making bricks from first three acres and was bound to complete the digging within two years and in case any hindrance was created by the co-sharers of the defendant, the defendant was answerable to them. The remaining period for digging the earth was to start after digging earth from first three acres within a period of two years. It is the further case of the appellant that the defendant was bound to pay damages of Rs.50,000/- also in case of obstruction.

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The plaintiff started digging earth from 20 kanals and 10 marlas and the defendants did not allow him to dig further and as such, the plaintiff also filed a civil suit for mandatory injunction. Since the defendant has violated the terms and conditions of the agreement and further refused to return the money, whereas the

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plaintiff was still ready to perform his part of agreement and thus, the necessity arose to file the instant suit.

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Upon notice, the defendant appeared and filed his written statement raising preliminary objections with regard to maintainability of the suit and that the suit was hit by the principles of Order 2 Rule 2 CPC. It was further stated that the appellant himself has breached the terms and conditions of the agreement and the contract has been frustrated due to his own fault. On merits, the ownership of the defendant-respondents over the land in dispute and execution of agreement is admitted but the remaining assertions made in the plaint have been denied and dismissal of the suit was prayed.

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The plaintiff filed replication to the written statement of the defendant, reiterating the stand taken by him in the plaint and controverting the grounds taken by the defendant.

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On the basis of the pleadings of the parties, following issues were framed:-

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“1. Whether the plaintiff is entitled to recovery of Rs.2,36,000/- along with interest as prayed for? OPP.

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2. Whether the suit is not maintainable? OPD.

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3. Whether the suit is barred u/o 2 Rule 2 CPC? OPD.

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4. Whether the plaintiff has himself breached the terms and conditions of the agreement dated 18.9.2001? OPD

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RSA No.129 of 2012

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Whether the suit is hit by Order 8 rule 1 CPC? OPD

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6. Relief.”

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After considering the evidence on record, the trial Court vide its judgment dated 22.1.2011 partly decreed the suit of the plaintiff-appellant for a sum of Rs.93,000/- with proportionate costs.

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Aggrieved from the aforesaid judgment and decree of the trial Court, the defendant-respondents filed an appeal, which was accepted by the first appellate Court vide judgment and decree dated 11.11.2011 and the judgment and decree of the trial Court was set aside. Resultantly, the suit of the plaintiff-appellant was dismissed.

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Aggrieved from the aforesaid judgment and decree of the first Appellate Court, the plaintiff-appellant has approached this Court by filing the instant appeal, challenging the aforesaid judgment and decree of the first Appellate Court.

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Learned counsel for the appellant has vehemently argued that the findings of the appellate Court are perverse and are based upon misreading of evidence on record and therefore, the same are liable to be reversed in favour of the appellant. It has been submitted by the learned counsel that the terms and conditions of the agreement, execution of which are not disputed, clearly show that whenever the plaintiff had started to dig out the

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earth, contract will start from that point of time and in fact the contract nowhere prescribed the time limit. The appellate Court committed error by not appreciating the material evidence on record. It has been clearly shown that the respondents obstructed the appellant from digging the earth by not providing water for preparation of bricks and thus, the findings of the appellate Court, which are based on mis-interpretation of evidence, are liable to be set aside and in these circumstances, following substantial question of law arises:-

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‘Whether the findings recorded by the first appellate Court are perverse and result of misreading of evidence.’

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I have heard learned counsel for the appellant and perused the impugned judgment and decree of the first appellate Court as well as the judgment and decree of the trial Court.

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It is not in dispute that the parties had entered into an agreement dated 18.9.2001, vide which, the defendant had given his land measuring 48 kanals situated at Village Issapur, Tehsil Ajnala, District Amritsar to the plaintiff for the purposes of digging earth upto the depth of 3½ feet at the rate of Rs.31,000/- per acre, as per the terms and conditions as given in the agreement and received a sum of Rs.1,86,000/- as total consideration. In terms of the said agreement, the appellant was to start digging earth w.e.f. 19.9.2001 and complete that process of digging for

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three acres within two years i.e. upto 19.9.2003 and thereafter, he could start digging earth from remaining three acres and in case of obstruction from doing so, as a result of which, he could not dig the earth on remaining three acres, the defendant-respondents would have been liable for violation of the terms and conditions of the agreement, rendering him liable to return the consideration amount of Rs.1,86,000/- and Rs.50,000/-, as damages, as per the agreement.

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However, the argument of the appellant is not proved on record. Admittedly, the appellant completed first part of digging earth from three acres of land and his grievance is only with regard to digging of remaining earth measuring three acres. The plaintiff has, admittedly, filed earlier suit for grant of permanent injunction on behalf of M/s Jasra Bricks Supply Company, which was dismissed as withdrawn as a result of settlement between the parties on 22.7.2006. The instant suit was filed on 25.3.2006. Meaning thereby that the appellant did not agitate the matter with regard to obstruction from digging the earth from the remaining three acres. On doing so, it was not open for him to raise the issue in the instant case. Moreover, the appellant failed to examine any assessor/Revenue Officer for assessment of loss. Moreover, the case of the appellant is solely based upon a complaint (Exhibit P-8), wherein it has been mentioned that the defendant was not providing water to him to

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prepare the bricks and there is no mention of defendantrespondents obstructing the appellant from digging the earth. From the aforesaid complaint, it cannot be proved that the defendant-respondents obstructed the digging of earth. Thus, no fault can be found with the findings of the lower appellate Court

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In view of the aforesaid discussion, this Court finds that there is no misreading of evidence on record, on the basis of which the question of law, as raised by the appellant, could be answered in his favour.

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Thus, no substantial question of law arises in this

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appeal.

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Dismissed.

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July 03, 2013 [RAKESH KUMAR GARG] ak JUDGE

Joginder Kumar v. Gurmej Singh and Anrs

Case brief

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Joginder Kumar v. Gurmej Singh and Anrs

Case brief

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