Punjab-Haryana High Court
Harphool Singh vs Subhash Chander on 1 June, 2012
Equivalent citations: AIR 2012 (NOC) 375 (P. & H.)
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
RSA No.269 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
RSA No.269 of 2011 (O&M)
Date of Decision: June 01, 2012
Harphool Singh .......Appellant
Versus
Subhash Chander .......Respondent
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.KS Banyana, Advocate for the appellant.
Mr.Sumit Mahajan, Senior Advocate with
Mr.Amit Kohar, Advocate for the respondent.
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TEJINDER SINGH DHINDSA, J.
Plaintiff-Subhash Chander instituted a suit for specific performance on the basis of an agreement to sell dated 2.6.2001 that was stated to have been entered into with defendant Harphool Singh in respect of suit property measuring 6 kanals situated at village Alampur, Tehsil Thanesar, District Kurukshetra. It was pleaded that the defendant had agreed to sell the suit land for a total sale consideration of Rs.2,25,000/- and a sum of Rs.1,10,000/- was paid towards earnest money. Agreement to sell was stated to have been scribed by Kishori Lal, petition writer at the instance of the defendant and the defendant had put his signatures and thumb impressions upon the same after having admitted the contents thereof RSA No.269 of 2011 (O&M) 2 to be true. The attesting witnesses to the agreement to sell were Sultan Singh and Sat Narain Sharma. Such agreement to sell was also attested by the Notary Public, Kurukshetra on 2.6.2001 itself. The last date for execution and registration of the sale-deed was stipulated as 30.4.2002. Plaintiff also pleaded that the defendant had entered into an agreement of even date i.e. 2.6.2001 with his brother Mohinder Singh for land measuring 8 kanals for a total sale consideration of Rs.3 lacs and had received earnest money of Rs.1,45,000/- in which the last date for execution of the sale-deed was fixed as 31.12.2001.
2. It was pleaded that on the stipulated date i.e. 30.4.2002, the plaintiff had attended the office of Sub Registrar, Thanesar along with the balance sale-consideration and other expenses to perform his part of the agreement but the defendant did not come present. Accordingly, the plaintiff got his presence marked by moving an application and affidavit which was duly attested by the Executive Magistrate, Thanesar on 30.4.2002 itself. Accordingly, the plaintiff averred that he had always been ready and willing to perform his part of the contract. Plaintiff further pleaded that since there was an apprehension that the defendant was wanting to alienate the suit land to some other person even prior to the target date i.e. 30.4.2002, a suit for permanent injunction had been filed and after the cause of action for filing the suit for specific performance had accrued, he had moved an application for amendment of the plaint claiming the relief of specific performance.
3. The suit was contested by the defendant and in the written statement so filed, it was stated that the plaintiff had brought the defendant RSA No.269 of 2011 (O&M) 3 to become surety in a loan case and upon such pretext, his signatures/thumb impressions have been obtained on certain blank papers. Defendant denied the execution of agreement to sell in favour of the plaintiff and even denied receiving of the earnest money. A further stand was taken that the suit land is ancestral and coparcenary property in the hands of the defendant and thus, he was not even competent to sell the same and as such, there was no question of having entered into the alleged agreement to sell.
4. The trial Court decreed the suit filed by the plaintiff vide judgment dated 23.5.2009 and a civil appeal preferred by the defendant- appellant stands dismissed in terms of the impugned judgment dated 9.9.2010 passed by the Additional District Judge, Kurukshetra. Resultantly, the defendant-appellant is in second appeal before this Court.
5. I have heard Mr.KS Banyana, learned counsel appearing for the appellant and Mr.Sumeet Mahajan, Senior Advocate with Mr.Amit Kohar, learned counsel for the respondent.
6. Learned counsel for the appellant would vehemently contend that the trial Court had erred in granting permission to amend the suit for permanent injunction to that of suit for specific performance after the expiry of the period of limitation i.e. on 29.11.2005. It was further contended that the suit for specific performance itself was not maintainable and was barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure inasmuch as such remedy had been available with the plaintiff-respondent at the time of filing the initial suit claiming the relief of permanent injunction. Learned counsel has further contended that the suit land was ancestral property in the hands of the appellant and as such, a suit for specific RSA No.269 of 2011 (O&M) 4 performance on the basis of alleged agreement entered into by the Karta, could not have been decreed by the Courts. Lastly , learned counsel would contend that the Courts below have proceeded to record perverse findings to hold the agreement to sell dated 2.6.2001 to be duly proved and as such, the findings are based on a mis-reading and mis-appreciation of evidence.
7. Per contra, Mr.Mahajan, learned Senior Advocate would contend that the impugned judgments and decrees passed by the Courts below are well-reasoned and the findings recorded are based on due appreciation of evidence adduced on record. Learned counsel would contend that there arises no substantial question of law for consideration of this Court in second appeal.
8. I have given my thoughtful consideration to the submissions raised by respective counsel. I find that the present second appeal is totally without merit and must fail for the reasons recorded hereinafter.
9. Insofar as the agreement to sell dated 2.6.2001, Exhibit P3, is concerned, the Courts below have returned a concurrent finding of fact that the same stands duly executed and proved in accordance with law. Towards returning such findings, the testimony of the appellant himself while appearing as DW1 has been noticed. In his cross-examination, the present appellant had categorically admitted his signatures on Exhibit P3. He had also admitted that he had written in his own hand on the agreement to sell, Exhibit P3, regarding the payment of earnest money of Rs.1,10,000/-. Undoubtedly, the appellant had set up a plea of fraud and deception but he having admitted his signatures on the agreement to sell, the onus was clearly on him to substantiate the plea of fraud. No documentary or oral evidence RSA No.269 of 2011 (O&M) 5 was adduced on record to substantiate such plea. Accordingly, I do not find any perversity in the concurrent findings recorded by the Courts below to hold the agreement to sell dated 2.6.2001 Exhibit P3, to be duly proved.
10. The factum of the plaintiff-respondent having been ready and willing to perform his part of the contract is also beyond any controversy. Against the total sale-consideration of Rs.2,25,000/-, the defendant- appellant has himself admitted to have received a sum of Rs.1,10,000/- towards earnest money. Plaintiff-respondent has also proved the fact of his being present in the office of Sub Registrar, Thanesar on the stipulated date for execution of the sale-deed i.e. 30.4.2002.
11. There is no dispute with regard to the fact that the plaintiff- respondent had initially filed a suit against the defendant-appellant claiming the relief of injunction. On 10.10.2002, an application had been moved by the plaintiff-respondent seeking amendment of the plaint to set up and claim the relief of specific performance in relation to agreement to sell dated 2.6.2001. Admittedly, such amendment was allowed vide order dated 29.11.2005 by the trial Court. Against such factual backdrop, learned counsel appearing for the appellant has raised the submission that such amendment permitting the claim for specific performance was time barred as it had been made after the expiry of the period of limitation of three years commencing from 30.4.2002 i.e. the target date stipulated for execution of the sale-deed.
12. Article 54 of the schedule to the Limitation Act, 1963 lays down the period of limitation for enforcing a contract and the same reads as under:
RSA No.269 of 2011 (O&M) 6
"For specific performance of a contract, the period of limitation is three years. The limitation begins to run from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has noticed that performance is refused."
13. The application moved by the plaintiff-respondent seeking amendment of the plaint was moved on 10.10.2002. In other words, the application for amendment had been filed well within the period of limitation i.e. three years to commence from the date fixed for the performance of the contract i.e. 30.4.2002. Even though such application may have been allowed by the trial Court on 29.11.2005, but such amendment would necessarily relate back to the date of filing the application. Accordingly, the submission made by the learned counsel for the appellant to contend that the claim for specific performance in relation to the agreement to sell dated 2.6.2001 was time barred, is rejected.
14. The contention raised on behalf of the respondent that the suit was barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure is also without merit. On the date of filing of the initial suit wherein the relief of permanent injunction had been sought, the cause of action for claiming relief of specific performance had not even accrued to the plaintiff-respondent. It was only upon the target date i.e. 30.4.2002 as stipulated in the agreement to sell having elapsed and the present appellant having failed to perform his part of the contract that the relief for specific performance of the contract could have been claimed.
15. Even if it is to be accepted that the suit land was coparcenary and ancestral property in the hands of the appellant, still the relief for RSA No.269 of 2011 (O&M) 7 specific performance could not have been denied in favour of the plaintiff- respondent as any such alienation in pursuance to such a decree having been granted by the competent Court was always open to challenge at the hands of other coparceners. The present appellant would also be estopped by his own act and conduct to even raise such a plea. Exhibit P3, dated 2.6.2001, specifically contained a recital that the defendant was entering into an agreement as he was in need of money to purchase other land. There was no mention in the agreement to sell, Exhibit P3, regarding suit land being Joint Hindu Family ancestral property. The relief of specific performance would not have been refused on such grounds.
16. For the reasons recorded above, I find no basis to interfere with the discretion exercised by the Courts below in granting to the plaintiff- respondent the relief of specific performance in relation to the contract on the basis of an agreement to sell dated 2.6.2001 which has been held to be duly executed and proved in accordance with law and having held the plaintiff-respondent to be ready and willing to perform his part of the contract.
17. No question of law, much less a substantial question of law arises for consideration in this second appeal.
18. The present appeal is, accordingly, dismissed.
19. Appeal dismissed.
( TEJINDER SINGH DHINDSA )
June 01, 2012 JUDGE
SRM
Note: Whether to be referred to Reporter? Yes/No