Punjab-Haryana High Court
Smt. Kaushalya Devi vs Jaswant Singh on 20 January, 2005
Equivalent citations: (2005)140PLR356
Author: V.M. Jain
Bench: V.M. Jain
JUDGMENT V.M. Jain, J.
1. For the reasons given in the application, delay in refiling the appeal is condoned. Application stands disposed of accordingly.
2. This appeal has been filed by the appellant as an indigent person, alleging in the application that the appellant had already been allowed to file the appeal before the District Judge as an indigent person and that since then the appellant has not ceased to be an indigent person. The application under Order 44 Rule 1 C.P.C. is accompanied by the affidavit of the appellant herself.
3. After hearing the learned counsel and perusing the record, the said application is allowed and the appellant is allowed to file the appeal as an indigent person.
4. This Regular Second Appeal has been filed by the defendant-appellant against the judgments and decrees of the Courts below, whereby the suit filed by the plaintiff was decreed by the trial Court and the appeal filed by the defendant was dismissed by the learned Additional District Judge.
5. After hearing the learned counsel and perusing the record, in my opinion, there is no merit in this appeal and the same is liable to be dismissed. Both the Courts below found it as a fact that the defendant had executed the agreement to sell dated 16.10.1992 in favour of the plaintiff and had received the earnest money and that the defendant had failed to execute the sale deed in favour of the plaintiff even though the plaintiff was ready and willing to perform his part of the contract. Resultantly, the suit of the plaintiff for possession by way of specific performance of the agreement to sell dated 16.10.1992 was decreed by the Trial Court and the appeal filed by the defendant was dismissed by the learned Additional District Judge, upholding the finding of the Trial Court. In my opinion, the finding recorded by the Courts below that the defendant had executed the agreement in question in favour of the plaintiff is a finding of fact based on evidence led by the parties and does not call for any interference from this Court in the present Regular Second Appeal. This is especially so when nothing has been brought on record to show that there was any misreading of evidence or that any material piece of evidence had been ignored while giving this finding.
6. The submission of the learned counsel for the appellant that the alleged agreement to sell was in respect of different property, whereas the suit had been filed in respect of different property, in my opinion, is without any basis since no such plea was taken by the defendant-appellant before the Courts below. In my opinion, in the absence of such a plea having been taken before the Courts below, the defendant-appellant now cannot be allowed to take up this plea in the present Regular Second Appeal for the first time. Furthermore, no question of law, much less substantial question of law, arises for determination in this appeal. Hence, the present appeal is hereby dismissed. Appeal dismissed.