Kala Singh vs Mahinder Singh

Vinod K. Sharma, J.

CM. No. 5852-C of 2009

This application u/s 5 of the Limitation Act, has been moved for condoning the delay of 344 days in filing the appeal. It has been averred in the application, that the delay has occurred as the appellant and the respondent were negotiating compromise and it was only on failure of the talks that the plaintiff/appellant approached this Court for filing of the appeal. It transpired that on account of period spent in negotiating compromise the delay of 344 days occurred. The delay, therefore, was said to be unintentional and bona fide and for the reasons beyond the control of the appellant, as he bona fide believed that the matter would stand compromised. For the reasons stated in the application, the CM. is allowed, the delay of 344 days in filing the appeal is condoned.

CM. No. 5853-C of 2009

This is an application for exemption from filing certified copy of the judgment and decree of the learned trial Court. For the reasons stated in the application, CM. is allowed, the filing of certified copy of the judgment and decree of the learned trial Court dated 19.7.2006 is ordered to be dispensed with.

CM. No. 5854-C of 2009 This is an application u/s 149 of the CPC to make good the deficiency in court fee. For the reasons stated in the application, the CM. is allowed. The delay in making good the deficiency in court fee is ordered to be condoned.

C.M. No. 5855-C of 2009

This application u/s 151 of the CPC has been moved for condoning the delay of 179 days in refilling the appeal. For the reasons stated in the application, the CM. is allowed, the delay of 179 days in refiling the appeal is condoned.

R.S.A. No. 1984 of 2009 & C.M. No. 5856-C of 2009

This regular second appeal is directed against the judgment and decree dated. 1.8.2007, passed by the learned Courts below, vide which in a suit filed for specific performance of agreement to sell dated 15.11.2002, the learned Courts below have declined the relief of specific performance of the agreement, and granted alternative relief of recovery of Rs. 1,40,000/- along with interest @ 6% per annum from the date of filing of the suit till its realization.

The plaintiff/respondent brought a suit on the pleading, that the appellant/defendant had entered into an agreement to sell the land measuring 8 Kanals @ Rs. 2,00,000/- per Killa, and received a sum of Rs. 1,40,000/- as earnest money. It was also pleaded, that on the date fixed, for the execution of the sale deed the plaintiff/appellant appeared before the Sub Registrar along with the consideration amount and other expenses, however, the appellant/defendant did not come present. Thus, it was claimed, that the plaintiff/respondent was always willing and still willing to perform his part of the contract.

The suit was contested, on the plea, that no agreement to sell was entered into between the parties. The other objections regarding maintainability etc. were also raised.

The learned Courts below, on appreciation of evidence, have recorded a concurrent finding of fact, that the agreement was executed by the defendant/appellant. The learned Courts below held that the defendant/appellant failed to prove the fraud or misrepresentation as pleaded.

The learned trial Court held, that in fact the agreement was executed as security of loan, and that agreement was not executed with an intention to sell the land. Resultantly, suit for alternative relief of recovery with interest @ 6% per annum interest was decreed.

The findings recorded by the learned trial Court stood affirmed by the learned lower appellate Court.

The learned Counsel appearing on behalf of the appellant contends that the appeal raises the following substantial question of law:

Whether the judgment and decree passed by the learned Courts below is outcome of misreading of documentary and oral evidence on record, thus, perverse?

Whether the learned Courts below were justified in making out a new case for the plaintiff/respondent from the one pleaded?

In support of the substantial question of law the learned Counsel for the appellant contends, that the learned Courts having come to the conclusion that Ex.Pl was not an agreement to sell, the grant of decree for an alternative relief amounts to misreading of evidence and pleadings, thus, is not sustainable being perverse.

It is further the contention of the learned Counsel for the appellant, that the learned Courts below have made out a new case of loan transaction. It was not open to the learned Courts blow to make out a new case than the one set up by the plaintiff/respondent. The judgment and decree passed by the learned Courts below is, therefore, not sustainable in law.

On consideration of the matter, I find no force in the contention raised by the learned Counsel for the appellant. The agreement Ex.P9 has been duly proved by leading cogent evidence by the plaintiff/respondent. The defendant/appellant failed to prove the fraud and misrepresentation. Though normally on proof of agreement to sell, and that the plaintiff was willing to perform his part of contract, the learned Courts were to grant relief of specific performance. In given circumstances, in view of Section 20 of the Specific Relief Act, the Civil Courts have power to grant an alternative relief, in case, the Court finds that the alternative relief would be equitable.

The learned Courts below on the basis of evidence held that the transaction was a loan transaction and that the appellant/plaintiff had taken loan of Rs. 1,40,000/- and as security, had in fact executed an agreement to sell, without intention of sale, therefore, have granted a decree of recovery. It cannot be said that findings are outcome of misreading of evidence. It is also misconceived contention of the learned Counsel for the appellant that the learned Courts below could not decree the suit for alternative relief of recovery with interest. It is well settled that in a suit for specific performance the Court in the given facts and circumstances can always grant an alternative relief of recovery of amount with interest, by way of equity. This is what has been done by the learned Courts below.

The substantial questions of law raised are answered against the appellant.

No merit.

Dismissed.