Punjab-Haryana High Court
Darshan Kumar vs Rampal And Others on 2 April, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.4095 of 2011 (O&M) #1#
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
RSA No.4095 of 2011(O&M)
Date of Decision: 2.4.2012
Darshan Kumar
....Appellant
Versus
Rampal and others
....Respondents
CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. R.S. Bhatia, Advocate for the appellant. JASWANT SINGH, J By filing the present appeal, the defendant-appellant has prayed for setting aside the impugned judgment and decree dated 4.2.2006 passed by the learned District Judge, Kapurthala whereby appeal filed by the plaintiffs-respondents against the judgment and decree dated 5.5.2005 passed by learned Civil Judge (Jr. Division), Phagwara dismissing the suit of the plaintiffs, has been accepted.
Brief facts of the case are that the plaintiff Smt Rama Rani (since deceased) filed Civil Suit for recovery of Rs.1,54,000/- along with interest @ 12%. Upon notice, the same was opposed by the defendant-appellant by filing detailed written statement. After hearing both the sides and perusing the record, learned trial Court dismissed the RSA No.4095 of 2011 (O&M) #2# suit. On an appeal having been filed by the plaintiffs, the same has been partly accepted, hence the present appeal.
After hearing learned counsel for the appellant, this court does not find any merit in the present appeal and the same deserves dismissal.
A perusal of paper book reveals that the defendant- appellant along with his mother and brother was/is owner of an house as described in para No.1 of the plaint and agreed to sell the same for the sale consideration of Rs.6,75,000/- and an agreement in this regard was executed on 6.5.1994. An amount of Rs.50,000/- was paid as earnest money and the remaining earnest money of Rs.50,000/- was paid on 6.6.1994 and the sale deed was to be executed on 6.8.1994 but the same could not be materialized due to the failure on the part of the defendant-appellant, which led to filing the present suit.
Although the learned trial Court has recorded a finding that the plaintiff had paid an amount of Rs.1,00,000/- as earnest money to the defendant-appellant by way of two instalments of Rs.50,000/- each on 6.5.1994 and 6.6.1994 but still dismissed the suit by observing that the plaintiff has never been ready and willing to perform her part of contract. It was further observed that the sale deed was to be executed on 6.8.1994 and the present suit was filed on 5.8.1997 i.e exactly after three years, which shows that the plaintiff was not interested in getting the sale deed executed and in these circumstances, the learned trial Court concluded that the defendant-appellant was justified to forfeit the RSA No.4095 of 2011 (O&M) #3# earnest money of Rs.1,00,000/-.
The learned first appellate court after consideration of the entire material on record came to the conclusion that the deceased Rama Rani was present with the balance amount of sale consideration on 6.8.1994 for getting the sale deed executed and registered the same and has always been ready and willing to perform her part of contract as the same is proved by the statement of Darshan Kumar (DW1) also.
On the other hand, the statement of Darshan Kumar clearly proves that he along with his mother Gurbachna Devi and brother Kewal Krishan was not present on 6.8.1994 in Tehsil Complex for the purpose of execution and registration of the sale deed and thus the finding of the learned trial Court that Rama Rani (since deceased) was not ready and willing to perform her part of contract, was set aside. Once, it was proved before the learned trial Court that an earnest money of Rs.1,00,000/- was received by the defendant-appellant and the learned first appellate court recorded a finding that the plaintiff Rama Rani (since deceased) was always ready and willing to perform her part of contract, then in the event of breach of terms and conditions of the agreement to sell dated 6.5.1994, the plaintiff Rama Rani was rightly held entitled for an earnest money of Rs.1,00,000/- along with interest while partly allowing the appeal vide judgment and decree dated 4.2.2006.
The present appeal was filed in the ordinary manner on 15.5.2006 and the Registry of this Court raised the following RSA No.4095 of 2011 (O&M) #4# objections on 6.6.2006:
"Index should be completed and paper book should be page marked.
Fair type copy of T.C judgment & decree be filed. Fair type copy of LAC judgment and decree be filed. RSA be barred by time."
Along with the present appeal, an application bearing C.M.No.11854-C of 2011 has been filed for condonation of 1810 days delay in re-filing the appeal by inter alia giving the reasons that the paper book was returned by the Registry by raising some objections on 12.10.2007, however, the file was not traceable as the Clerk of the counsel had left the office and it is only on 22.8.2011 that the file was located in the another admitted case and the same was filed on 24.8.2011.
The explanation seems to be only a concocted story just to get the delay condoned, which in my opinion, is not at all sufficient to give any credence for such a huge delay in refiling the appeal.
Moreover, no substantial question of law is involved in the present appeal for adjudication under Section 100 CPC.
Dismissed.
April 02,2012 ( JASWANT SINGH ) manoj JUDGE