Punjab-Haryana High Court
Roshan Lal & Others vs Avtar Singh --Respondent on 16 May, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
RSA No.994 of 2011(O&M)
Date of Decision: 16.5.2012.
Roshan Lal & others --Appellants
Versus
Avtar Singh --Respondent
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:- Mr. Arvind Kashyap, Advocate for the appellants.
Mr. R.S. Bajaj, Advocate for the respondent.
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TEJINDER SINGH DHINDSA.J Plaintiff Avtar Singh filed a suit for possession by way of specific performance of agreement to sell dated 15.2.1991 executed by the defendant in his favour in respect of suit land measuring 10 kanals 13 marlas. It was pleaded that the sale consideration was settled @ of Rs.32,000/- per acre and Rs.5,000/- had been paid towards earnest money to the defendant. The sale deed was agreed to be executed on 14.6.1991. Plaintiff further pleaded that he had remained present in the office of Sub Registrar, Gurdaspur on 14.6.1991 along with the balance sale consideration for getting the sale deed executed and registered but the defendant did not come present. The plaintiff had got his presence marked by way of an affidavit and pleaded that he had always been ready and willing to perform his part of the contract and accordingly, the suit had been instituted.
The defendant contested the suit in terms of taking a preliminary objection that the suit was time barred. On merits the execution of the agreement to sell was admitted. It was stated that the defendant had remained present in the office of Sub Registrar on 14.6.1991 but it was the RSA No.994 of 2011(O&M) -2- plaintiff, who had not turned up for getting the sale deed executed. Accordingly, defendant stated that there was no question of the plaintiff being ready and willing to perform his part of the contract and accordingly, the suit could not be decreed for specific performance.
The Trial Court decreed the suit filed by the plaintiff vide judgement and decree dated 8.6.2005. The plaintiff was directed to deposit the balance sale consideration within a period of three months from the date of passing of the judgement and a decree for possession in respect to the suit land by way of specific performance of the agreement to sell dated 15.2.1991 was passed. A civil appeal preferred by the defendants- appellants has been dismissed by the Additional District Judge, Gurdaspur vide judgement dated 9.8.2010. Resultantly, the defendants-appellants are in second appeal before this Court.
I have heard Mr. Arvind Kashyap, Advocate appearing on behalf of the appellants and Mr. R.S. Bajaj, Advocate appearing on behalf of respondents at length.
Learned counsel appearing for the appellants did not assail the findings recorded by the courts below in so far as due execution of the agreement to sell dated 15.2.1991. Learned counsel would contend that the findings of the courts below holding the plaintiff-respondent to be ready and willing to perform his part of the contract were perverse and based on a misreading of the evidence adduced on record. Still further, learned counsel for the appellants would vehemently argue that the agreement to sell was dated 15.2.1991 and the stipulated date for the execution of the sale deed had been agreed to be 14.6.1991, whereas the suit had been instituted on 19.7.1994 and as such the same was clearly time barred. Learned counsel RSA No.994 of 2011(O&M) -3- would strenuously argue that on such basis alone the suit filed by the plaintiff-respondent deserved dismissal.
Per contra, learned counsel appearing for the plaintiff- respondent has argued that the present appellant himself had filed a suit on 26.7.1991 challenging the agreement to sell in question dated 15.2.1991 and such suit was dismissed by the Trial Court on 16.7.1993 and as such the period w.e.f. 26.7.1991 to 16.7.1993 was to be excluded for computing the period of limitation for purposes of filing of the present suit by the present plaintiff-respondent. Learned counsel for the plaintiff-respondent would further argue that the finding returned by the Trial Court and as affirmed by the Lower Appellate Court to hold the plaintiff-respondent to be ready and willing to perform his part of the contract was based on due appreciation of evidence adduced on record and as such would not call for any interference in second appeal by this Court.
The execution of the agreement to sell dated 15.2.1991 is not a matter of dispute between the parties. In terms of such agreement to sell, the date for execution of the sale deed had been stipulated as 14.6.1991. The plaintiff-respondent has been held to have attended the office of Sub Registrar on 14.6.1991 and the application Ex.P-2 submitted by the plaintiff-respondent in the office of Sub Registrar of even date has been taken cognizance of. Still further, a legal notice dated 20.7.1991 (Ex.P-3) was duly served by the plaintiff-respondent on the present appellant towards the execution and registration of the sale deed. Even though, the appellant had taken a stand that they have been ready and willing to perform their part of the contract and had remained present in the office of Sub Registrar on 14.6.1991 but no document had been adduced to substantiate such plea. As RSA No.994 of 2011(O&M) -4- such the concurrent finding of the plaintiff-respondent having been held to be ready and willing to perform his part of the contract calls for no interference.
As regards the submission regarding limitation is concerned, it is not in dispute that the present appellant had instituted a suit assailing the veracity of the agreement to sell dated 15.2.1991 and which was contested by the plaintiff-respondent and such suit was dismissed on 16.7.1993. A bare reading of section 14 of the Limitation Act would make it clear that the Legislature had enacted the said section to exempt a certain period covered by a bonafide litigious activity. It is not in dispute that the earlier proceedings for the period 26.7.1991 to 16.7.1993 as also the subject matter in the present suit were in relation to the same very agreement to sell dated 15.2.1991. Section 14 of the Limitation Act would have to be construed liberally and a defendant or a respondent in a previous proceeding would also be entitled to get the benefit subject to the condition that the previous proceedings were duly contested and were in relation to the same very subject matter. I do not find any infirmity in the view taken by the courts below in excluding the period i.e. w.e.f. 26.7.1991 to 16.7.1993 to be excluded for purposes of computing the period of limitation in so far as filing of the present suit by the plaintiff-respondent was concerned. Even otherwise, on equitable considerations, it would not lie in the mouth of the present appellant to take the objection of limitation and delay when he himself had set up a challenge to the agreement to sell dated 15.2.1991 and such challenge had been rejected by the Trial Court on 16.7.1993. RSA No.994 of 2011(O&M) -5-
For the reasons recorded above, the present second appeal must fail as it does not raise any question of law much less a substantial question of law. The appeal, accordingly, is dismissed.
Appeal dismissed.
(TEJINDER SINGH DHINDSA) JUDGE May 16, 2012.
lucky Whether to be reported? No.