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PUNJAB AND HARYANA HIGH COURT
Rakesh Kumar Garg, J.
Gurmail Singh —Appellant
versus
Darshan Singh —Respondent
RSA No. 2673 of 2012 (O&M)
Decided on 14.1.2014
Counsel for the Parties:
For the Appellant:Mr. K.S. Cheema, Advocate
IMPORTANT POINT
Long delay in filing suit for specific performance will non-suit the plaintiff.
Headnote:Specific Relief Act, 1963—Section 16—Specific performance of agreement to sell—Long delay of 22 years in filing of suit—Courts below rightly non-suited appellant.
Held: The contention raised on behalf of the appellant was that after receipt of sale certificate in his favour, the notice was to be issued by the respondent asking him to get the sale deed registered. However, no such condition has been stipulated in the agreement to sell in question. In the instant case, the agreement to sell in question is dated 30.11.1981, the sale certificate was issued in favour of the respondent on 18.05.1984, whereas the appellant issued notice Ex.P3 to the respondent, calling him to execute the sale deed, fixing 10.03.2003 for execution of the sale deed on his own. No reason is forthcoming as to why the appellant kept mum for a long period of 22 years after execution of the agreement to sell dated 30.11.1981. There is nothing on record to support the plea of the appellant that he kept on asking the respondent for execution of the sale deed in his favour at any point of time. It is appellant’s own case that he had been approaching the defendant-respondent for execution of the agreement to sell asking him for getting the mutation sanctioned and then to execute the sale deed and when the respondent did not agree to it, he got the notice issued through his counsel. However, he has admitted that except notice issued before the filing of the present suit, he did not issue any other notice upon the defendant-respondent, from which, intention of the appellant becomes clear that he remained a mute spectator for along period of 22 years to issue the notice to the respondent calling upon him to execute the sale deed in his favour. No reason is forthcoming as to why he never inquired from the revenue authorities or the Central Government with regard to issuance of sale certificate in favour of the respondent or sanction of mutation despite the fact that the sale certificate was issued in the year 1984 and mutation was also sanctioned thereafter. It is also relevant to notice at this stage that the respondent in his cross-examination has specifically deposed that the plaintiff has taken possession of the suit property from him forcibly.
Additionally, the appellant has also got the revenue entries of the suit property rectified in his name from the revenue Court. The said fact is proved from Ex. P10 passed by the Naib Tehsildar-cum-Assistant Collector IInd Grade, Tanda and the copies of khasra girdawari for the year 2002-03 on record, which reflect the fact that the appellant was in the knowledge of the fact that the mutation of the suit property had been already sanctioned in favour of the respondent on the basis of the sale certificate. All these facts are on record and the long delay in filing the instant suit clearly non-suits the appellant for decree of specific performance of the agreement to sell in question. (Paras 13 & 14)
Result: Appeal dismissed.
Rakesh Kumar Garg, J.— This is plaintiff’s second appeal challenging the judgment and decrees of the Courts below whereby he has been declined the decree of specific performance of the agreement to sell in question and instead his suit for recovery of earnest money has been decreed.
2. According to the appellant, the respondent entered into an agreement to sell dated 30.11.1981 of land for a total sale consideration of Rs.1056-72p and received Rs.826-32p from the plaintiff-appellant. The balance sale price was agreed to be received by the respondent at the time of execution and registration of the agreement. No time was fixed for execution of the sale deed for want of sale certificate. The plaintiff was put in actual physical possession of the suit land. He was always ready and willing to execute and register the sale deed, as per the agreement, on payment of balance sale price and also by incurring the registration expenses. The plaintiff-appellant issued a registered notice to the defendant-respondent requesting him to execute and register the sale deed but the respondent gave evasive reply. Plaintiff also remained present in the office of Sub-Registrar, Tanda on 10.3.2003 for getting the sale deed executed from the defendant, but the defendant did not turn up. Thus, on accrual of cause of action, suit was filed.
3. Upon notice, the defendant-respondent appeared and filed his written statement, raising various preliminary objections, denying the execution of the agreement and submitted that the alleged agreement was forged and fabricated. The delivery of possession was also denied. Thus, dismissal of the suit was prayed.
4. Plaintiff filed replication denying the averments made in the written statement and reiterated the assertions made in the plaint.
5. From the pleadings of the parties, following issues were framed:
“1. Whether defendant executed agreement to sell dated 30.11.1981 in respect of suit land in favour of the plaintiff after receiving Rs.628-32 as earnest money as alleged, if so its effect? OPP.
2. Whether plaintiffs always remained ready and willing to perform his part of the contract? OPP.
3. Whether the plaintiff put in physical possession of the suit property as alleged? OPP
4. Whether suit is not maintainable in the present form? OPD
5. Whether the plaintiff has got no locus standi and cause of action to file the present suit? OPD
6. Whether suit is within limitation? OPP
7. Whether plaintiff is entitled to relief of specific performance of the agreement as prayed? OPP
8. Whether plaintiff is entitled to relief of permanent injunction? OPP
9. Relief.”
6. After hearing learned counsel for the parties and considering the evidence on record, the trial Court decreed the suit for recovery of Rs.628.32p alongwith interest from the date of institution of the suit till actual realization. Aggrieved from the said judgment and decree, the plaintiff filed an appeal before the first Appellate Court which was dismissed. While dismissing the appeal, the lower Appellate Court observed as under:
“The much disputed point in the present case is the question of readiness and willingness to perform the part of contract by the appellant-plaintiff. From Ex. P1 it has come to the surface that no time was fixed for the execution of the sale deed in pursuance of the agreement Ex.P1. From the recital made in Ex.Pl it becomes clear that the balance sale consideration was to be received at the time of the execution of the sale deed after the sale certificate by issuing the notice for the execution of the sale deed. In this regard it is observed that the agreement to sell Ex.Pl is dated 30.11.1981. The sale certificate in favour of the respondent-defendant is dated 18.05.1984, meaning thereby after approximately two years and five months. The appellant-plaintiff seems to have issued notice Ex.P3 upon the respondent-defendant calling him to execute the sale deed on 10.3.2003 in pursuance of the agreement to
