The High Court of Uttarakhand dismissed the second appeal and rejected the concession application for condonation of a 675-day delay, holding that poverty is not a valid ground and no substantial question of law arises.
Second appeal dismissed on merits and delay; condonation application rejected.
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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No. 55/2017
Farukh
…. Appellant
Versus
Harjeewan Singh
.… Respondent
Mr. P.C. Petshali, Advocate, for the appellant. Ms. Menka Tripathi, Advocate, for the respondent.
July 1 8 th , 2017
Hon’ble Servesh Kumar Gupta, J.
Having heard on the application (CLMA 4061/2017) seeking condonation of 675 days’ delay, this Court also looked into the merits of the appeal for a while. Agreement to sale was executed on 23.6.2005 for the total consideration of Rs. 1,20,000/- towards the sale of the land ad measuring 0.27 hectare which was in the share of second appellant herein, apart from his real brother. Out of such sale consideration, Rs. 75,000/- was paid in advance and Rs. 45,000/- remained due to be paid on or before the time of execution of the sale deed by 20.6.2007.
When the appellant defendant could not execute such sale deed, an Original Suit No. 98/2007 was instituted for specific performance of the contract, which was resisted by way of filing the written statement on 3.12.2007. Amendment in the written statement was sought on 25.2.2010 to the effect that the plaintiff was a minor at the time of agreement to sale. So, he could not have entered into agreement at that time.
Since the plaintiff presented his school certificate displaying his date of birth as 5.11.1985, so this amended
2
pleading, whereon the issue no. 7 was formulated, could not favour the defendant.
The suit was decreed on 11.10.2013, whereagainst the Civil Appeal No. 51/2013 was also dismissed on merits on 16.3.2015. The defendant received the certified copy of the judgment on 31.3.2015. Thereafter he filed the review application no. 17/2015. Since the defendant was the beneficiary of the land and had not delivered the possession, hence he kept it pending and ultimately, it resulted in dismissal on 19.1.2017. Copy of the order on the review application was applied for after 12 days on 31.1.2017. It was prepared by the concerned office on the same day, but the defendant received it on 3.2.2017. Thereafter whole February and March elapsed and even 20 days further passed in the month of April. Then he presented this second appeal on 22.4.2017 with the delay of 675 days.
The reasons disclosed for such delay are that the defendant appellant is quite a poor man and, therefore, he could not arrange the court fees. I think such reasons are not acceptable at all. Further, the substantial questions of law formulated in the memo of appeal do not have any substance. No substantial question of law arises in this second appeal.
Consequently, this second appeal is dismissed both on merits and on the ground of delay. Delay condonation application stands rejected.
Interim order, if any, stands vacated.
(Servesh Kumar Gupta, J.)
Prabodh
3 issues framed by the court
Whether 675 days of delay in filing the second appeal warrants condonation.
Whether substantial questions of law arise in this second appeal.
Whether the agreement to sale was valid considering the plaintiff's age.
1 provisions across 1 enactments
Farukh
Harjeewan Singh
Servesh Kumar Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
