Harnek Singh and Others vs Gurdeep Singh

L.N. Mittal, J.

C.M. No. 2332-C of 2011:

Heard.

This is application for condonation of delay of 184 days in re-filing the appeal. It is alleged in the application that inadvertently, the case, after being returned by the Registry with some objections, was wrongly placed ini decided cases by the counsel and was traced when the Appellants contacted the counsel.

Learned Counsel for the applicant-Appellants reiterated the aforesaid ground for condonation of delay. I have carefully considered the same. No ground for condonation of aforesaid long delay of 184 days in re-filing the appeal is made out. This excuse is being advanced in almost every other case for seeking condonation of long delay in re-filing the appeal. Such standard excuse cannot be accepted for condoning the long delay of more than six months. Accordingly, I find no merit in the instant application, which is accordingly dismissed.

C. M. No. 2333-C of 2011:

Allowed as prayed for.

C. M. No. 2334-C of 2011:

Deficiency in court fee has since been made good. Therefore, the application is allowed. Main Appeal:

This is second appeal by Defendants Harnek Singh etc.

Respondent-Plaintiff Gurdeep Singh filed suit against the Appellants for specific performance of the agreement to sell dated 21.10.2004 alleging that the Defendants, by executing the said agreement, agreed to sell the suit land measuring 16 kanals (320/1108th share of 55 kanals 08 marlas) @ Rs. 2.40 lacs per acre and received Rs. 2.50 lacs as earnest money. The Defendants failed to perform their part of the contract and committed breach thereof, although the Plaintiff always remained ready and willing to perform his part of the contract. Accordingly, the Plaintiff sought specific performance of the agreement and in the alternative, claimed recovery of Rs. 7 lacs i.e. Rs. 3.50 lacs as refund of earnest money and Rs. 3.50 lacs as consolidated damages.

The Defendants inter alia pleaded that they had raised loan of Rs. 2.17 lacs from the Plaintiff on 02.10.2004 and at that time, the Plaintiff obtained signatures/thumb impressions of the Defendants on some blank and stamp papers as security for the loan. Impugned agreement to sell is forged and fabricated. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Bathinda, vide judgment and decree dated 19.03.2009, decreed the Plaintiff''s suit for recovery of Rs. 3.50 lacs (earnest money) along with interest thereon. However, both the parties preferred first appeals against judgment and decree of the trial court. Learned Additional District Judge, Fast Track Court, Bathinda, vide common judgment dated 08.02.2010, dismissed the appeal preferred by the Defendants and allowed the appeal preferred by the Plaintiff and decreed the Plaintiff''s suit for specific performance of the impugned agreement. Feeling aggrieved, Defendants have preferred the instant second appeal.

I have heard learned Counsel for the Appellants and perused the case file.

Defendants in the written statement itself admitted their signatures/thumb impressions on the impugned agreement by pleading that the Plaintiff had obtained the same on blank and stamp papers as security for loan taken by the Defendants. Even otherwise, Plaintiff himself appeared in the witness-box as PW-1 and examined Jaswant Singh (PW-2) and Vijay Kumar (PW-3) - both attesting witnesses of the agreement and Dalbir Singh - deed writer (PW-4), who scribed the impugned agreement. All of them have supported the Plaintiff''s version. On the other hand, there is sole self-serving oral statement of Defendant No. 1 Harnek Singh as DW-1. Plaintiff''s evidence has been found to be cogent and reliable by the courts below and execution of impugned agreement has been held proved by the courts below. The said finding is based on proper appreciation of evidence and is fully justified by the evidence on record and is supported by cogent reasons recorded by the courts below. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not warrant interference in second appeal. On the contrary, Plaintiff''s evidence is very cogent and reliable and far outweighs the evidence of the Defendants i.e. self-serving testimony of Defendant No. 1 himself.

Learned trial court declined the relief of specific performance of the impugned agreement mainly on the ground that ownership of Defendants was not proved by the Plaintiff''s evidence. This approach of the trial court was patently erroneous, perverse, illegal and unsustainable in law and has been rightly set aside and reversed by the lower appellate court because the Defendants, in the written statement, admitted that they are owners of the suit land. In view of said admission, the Plaintiff was not required to lead any evidence regarding ownership of the Defendants over the suit land. Consequently, sole contention raised by learned Counsel for the Appellants in the instant appeal that ownership of the Defendants over the suit property is not proved, also has no merit. The said contention, in fact, does not lie in the mouth of the Defendants-Appellants because they themselves admitted in the written statement that they are owners of the suit property.

For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine.