Punjab-Haryana High Court
Gulshan Kanda vs Mohinder Singh (Dead) Through on 20 January, 2012
Author: A.N.Jindal
Bench: A.N.Jindal
RSA No. 1266 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 1266 of 2008 (O&M)
Date of Decision: 20 .01.2012
Gulshan Kanda ...Appellant
Vs.
Mohinder Singh (dead) through
LRs & Ors. ...Respondents
BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL
Present: Mr.Harsh Bunger, Advocate,
for the appellant.
None for the respondents.
(Respondents No.2,3 & 5 proceeded ex parte)
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A.N.Jindal, J.
This is the plaintiff's appeal against the judgment dated 6.12.2007 passed by the first appellate court dismissing the appeal against the judgment dated 25.09.2006 passed by the trial court whereby suit of the plaintiff for specific performance and in the alternative for recovery of Rs.60,000/- was dismissed.
In nutshell, the facts are that the defendant No.3/respondent (herein referred as the defendant No.3) being the RSA No. 1266 of 2008 2 general attorney of defendant No1 Mohinder Singh and Sarwan Singh son of Ragga Singh (since deceased) now represented by defendants Nos. 2-A to 2-C had entered into an agreement for sale of land, as fully detailed in the heading of the plaint on 12.7.1993 and after receiving a full and final payment of Rs.30,000/- he had executed the agreement. The plaintiff has always been ready and willing to perform his part of the contract but the defendants failed to execute the sale deed. Despite repeated requests, they did not perform their part of the contract.
Upon notice, the defendants did not appear in the court, as such, the trial court proceeded against them ex parte.
Trial court while holding that through agreement Ex.P.4, the defendants never intended to sell the property but it was executed for securing some debt, dismissed the suit of the plaintiff. Appeal preferred by the plaintiff also met the same fate.
Arguments heard. Record perused.
Learned counsel for the appellant has primarily argued that the first appellate court has dismissed his appeal on the ground that affidavits of the witnesses namely Gulshan Kanda PW 3 (plaintiff) and Sudesh Mehta (PW 4) a marginal witness, were not correctly verified, therefore, these affidavits cannot be taken into consideration. Consequently, while holding that the execution of the agreement is not proved, dismissed the suit.
Learned counsel for the appellant has urged that the RSA No. 1266 of 2008 3 said observation of the trial court is not sustainable. The defect in the affidavits was curable and could be directed to be cured. Further when the affidavit is tendered by the deponent in the court while appearing as a witness, then the defect becomes immaterial as the facts as contained in the affidavit become part of the statement of the person tendering the affidavit by way of evidence.
Having heard the contentions, it appears that the trial court has not recorded correct observation by relying upon the judgment Milkha Singh & Ors. Vs. Nirmal Singh & Ors. 2007 (4) RCR (Civil) 842.
Having perused the judgment, it transpires that the court actually was not seized of the question with regard to the value of the affidavits when tendered into evidence. In that case advocate had tendered the affidavit and he did not appear as a witness but the present case is on different facts. Plaintiff Gulshan Kanda while appearing as PW 3 and Suresh Mehta as PW 4 attesting witness to the agreement, tendered their affidavits Ex.PW 3/A and Ex.PW4/A and deposed that the same may be read as part of their statements. In that situation the court could not reject the affidavits merely due to some defective verification.
Procedural law is the hand made by administration of justice. The witnesses in this case while tendering the affidavits had made a categorical deposition that contents of the said affidavits may be read as part of their statements, therefore, in such a situation RSA No. 1266 of 2008 4 what is stated in the affidavit forms part of his statement.
Similar observations were made by the Bombay High Court in case M/s Miscellany Marketiers Pvt.Ltd. Vs. M/s Sun-N- Sand Hotel Pvt.Ltd. 2010 (6) RCR (Civil) 1015, wherein it was observed as under:-
"10. Now turning to the other defect in the verification, this court in case of FDC has held that the affidavit in lieu of examination in chief in terms of Rule 4 of Order XVIII of the said Code has to be in conformity with Rule 3 of Order XIX of the said Code. In paragraph 21 of the said decision, this court has held that if affidavit is to be considered it should confine to the facts of the case of the deponent either of his personal knowledge or based on information which the deponent has reason to believe. In later case, the source of information and the reasons for belief have to be disclosed in the affidavit. The aforesaid aspects can be set out in the body of the affidavit itself. The said decision does not go further and state that the affidavit in lieu of examination-in-chief has to be verified in the manner required by Rule 15 of the Order VI of the said Code. In any event if there is any defect in the verification below the affidavit in lieu of examination-in-chief, the court can always exercise its general power to amend under section 153 of the said Code and permit the correction to RSA No. 1266 of 2008 5 be carried out to the verification clause of the affidavit. The defect, if any, in the verification clause of the affidavit will not be fatal and it can always be permitted to be cured. The Civil Court is vested with sufficient power under section 153 of the said Code to allow such inadvertent or accidental defects in the verification clause in the affidavit to be corrected. As far as the failure to affirm the affidavit in lieu of examination-in-chief is concerned, if such affidavit is taken on record, the court has abundant power to permit the witness to get it affirmed at a subsequent stage. The said defect stands cured by recording of examination in chief before the court affirming therein the correctness of the contents of the affidavit."
In any case, the defect in the affidavit is curable. Similar view was taken by this High Court in case Archana Rastogi Vs. Vivek Rastogi 2010 (3) Civil C.C. 443, wherein it was held as under:-
"7. There is no quarrel with the proposition of law as has been laid down in the judgments relied upon by the learned counsel for the petitioner on the point of verification of an affidavit as this matter is no longer res integra, but it has also to be kept in mind that this defect in the affidavit is curative. Even through, the curative RSA No. 1266 of 2008 6 amendment cannot be permitted to be carried out in the affidavit that has been placed on record, but with the permission of the Court, an additional affidavit or a fresh affidavit can be filed after rectifying the mistake as appearing in the original affidavit."
Similarly, in case Suman Jain and Ors. Vs. Jaimala Jain and Ors. AIR 2008 Delhi 91 it was observed that the court could provide opportunity to the party to rectify defects depicted in the affidavit. Their Lordship in the aforesaid judgment observed as under:-
"4. We find force in the aforesaid submission that an opportunity as sought for can be given to the appellants to rectify the defects in the verification and the affidavits. A prayer was made before us in that regard and we find reasonable ground to allow the prayer.
5. Written statement is required to be filed within the statutory period as provided under Order VIII, Rule 1, of the Code. However, power and jurisdiction is vested in Court to condone delay in filing written statement and also to extend the time to file the written statement. The same is now settled law in view of the judgment of the Supreme Court in Smt Rani Kusum Vs. Smt.Kanchan Devi, reported in AIR 2005 SC 3304. Besides, verification RSA No. 1266 of 2008 7 in the pleadings of the parties and affidavits can be amended. It is also settled law in view of the decision of the Supreme Court in F.A. Spa V. Singora, reported in AIR 1991 SC 1557. The Supreme Court in the case of Associated Journals Ltd. Vs. Mysore Paper Mills Ltd. Reported in (2006) 132 Company Cases 470: (AIR 2006 SC 2695) while dealing with Rule 21, of the Companies (Court) Rules, 1959 and defect in verification of affidavit in support of winding up petition after referring to an earlier decision in the case of Malhotra Steel Syndicate V. Punjab Chemi-plants Limited, reported in (1993) Suppl 3 SCC 565 has opined that even if there is some defect or irregularity in filing of an affidavit, opportunity to rectify should be given to the party. Rules of procedure cannot be used as a tool to circumvent justice."
Now coming to the other issue, whether the case is within limitation. The agreement was executed on 12.7.1993. As per terms of the agreement the plaintiff had paid the entire sale price for purchase of the land on 12.7.1993 which was executed by Surinder Singh, a general power of attorney of Mohinder Singh in his favour after receiving the entire sale consideration. As regards the terms of the sale deed, it was recorded that the plaintiff could get the sale deed registered in the name of any person he liked but it is not RSA No. 1266 of 2008 8 mentioned in the agreement if the plaintiff could get the sale deed registered at any time after the passing of certain time even or within certain time. In such a situation this court is of the opinion that the limitation would begin to run from the date of execution of the agreement. But in this case suit was filed after 11 years of the execution of the agreement. Plaintiff in order to bring the suit within limitation has stated that cause of action arose to him three months prior to the filing of the suit when the plaintiff approached the defendants for the purpose but defendants refused to execute the sale deed.
Thus, I am of the view that the plaintiff has failed in his endeavour to bring the suit within limitation. Consequently, the suit can by no stretch of reasoning, be said to be within limitation.
No substantial question of law arises for consideration in the present appeal; hence the same is dismissed.
(A.N.Jindal) 20 .01.2012 Judge rp