Punjab-Haryana High Court
Kaushalya Devi vs Rajinder Kumar And Another on 7 May, 2009
Civil Revision No. 4830 of 2008(O&M) -1-
****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 4830 of 2008(O&M)
Date of decision: 7.05.2009.
Kaushalya Devi
Petitioner
Versus
Rajinder Kumar and another
...Respondents
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Mr.C.B.Goel, Advocate for the petitioner.
Mr.Hemant Bassi, Advocate for the respondent
*****
S.D.ANAND, J.
A statement about the facts culminating in the impugned controversy would be useful to understand and appreciate the respective contentions of the parties in the correct perspective.
A civil suit for specific performance came to be decreed in favour of the respondents and against the petitioner, vide judgment and decree dated 23.1.1998. In terms thereof, the respondents were directed to pay the balance sale consideration within four months from the date of decree (of the First Appellate Court). The first appeal against that judgment and decree was dismissed on 7.8.2001. Four months time, with effect from the date of decree was afforded to the respondents to pay up the balance sale consideration. On filing a Regular Second Appeal, the operation of the judgment Civil Revision No. 4830 of 2008(O&M) -2- **** and decree dated 7.8.2001 had been stayed by this Court on 29.11.2001. The aforesaid RSA was rejected by this Court on 5.12.2007. However, there is no order by this Court about the extension or otherwise of the time for deposit of the sale amount. It was ultimately on 1.12.2007 that the plaintiffs-respondents filed a plea for extension of time to pay the balance sale consideration.
The learned Trial Court allowed the plea in favour of the respondents, vide impugned order dated 6.8.2008. It is vide common order that the learned Trial Court allowed an application filed by the respondents for the extension of time to deposit the balance sale amount and declined the (other) application filed by the petitioner for decision of the rescission of the agreement to sell dated 27.2.1990 (and consequential forfeiture of amount paid).
It is common ground that the respondents did not deposit the balance sale amount within the period which came to be granted by the learned Trial Court and the Ist Appellate Court from time to time. The claim by the respondents shall survive only if the validity of the impugned order is upheld. The learned counsel for the petitioner argued that the impugned deposit not having been made within the period fixed by the Court, learned Executing/Trial Court had no option but to decline any further extension of time and it (Trial Court) was further duty bound to order the rescission of the impugned agreement on account of default committed by the respondents in the relevant behalf. Reliance, in support of the advocate view, was placed upon Chanda Vs. Rattni 1999 (4) RCR (Civil) 621. Civil Revision No. 4830 of 2008(O&M) -3-
**** Learned counsel for the respondents resisted the plea by arguing that the respondents having been busy in prosecuting the impugned litigation throughout, could not be said to have committed a conscious default in deposit of the balance sale amount. In raising of that plea the learned counsel also drew sustenance from the fact that the petitioner took a number of adjournments for filing of objections in the execution. The fact that the petitioner may have obtained certain adjournments for the filing of objection to the execution application would not affect merits of the point under adjudication. It is a pure and simple case wherein a decree for specific performance had been granted by the Civil Court in favour of the respondents and they had been afforded four months times with effect from the date of decree to pay up the balance amount. Out of that period, two months 11 days were already over by the time the appeal came to be filed. The period, for which there was a stay on the operation of the impugned judgment and decree by the Ist Appellate Court, has to be excluded from consideration. The Ist appeal, however, came to be disposed of on 7.8.2001 and another four months' time with effect from the date of decree by the Ist Appellate Court came to be allowed. In R.S.A., the operation of the impugned judgment and decree was stayed on 29.11.2001. By that time, more than three months period was already over.
Learned counsel for the respondents further resisted the plea by pointing out that the plea for leave of the Court to make deposit came to be filed on 1.12.2007. In view of the fact that the Civil Revision No. 4830 of 2008(O&M) -4- **** respondents had eight days at his disposal to make the deposit and that period was to be counted with effect from 5.12.2007 in view of the fact that operation of the judgment and decree of the Ist Appellate had been stayed vide order dated 29.11.2001 and the RSA came to dismissed on 5.12.2007 and if the matter came to be adjourned either on the request of the petitioner or otherwise, the delay cannot visit the petitioner with evil consequence and he would be deemed to have applied for the leave of the Court within the required period (i.e. four months period) which had been granted by the Ist Appellate Court. That period had been retained in abeyance in the light of the order dated 29.11.2001 of this Court.
In the light of the foregoing discussion, it is apparent that view obtained by the learned Trial Court is appropriate and acceptable, though for reasons quite different from those noticed by that Court.
The petition is held to be denuded of merit and is ordered to be dismissed.
May 07, 2009 (S.D.Anand) Pka Judge