Dalbir Singh vs Nirmal Singh (Deceased) Through ...
2014 Latest Caselaw 38 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Date of decision: 3rd January, 2014.

+                              RFA 94/1991

       DALBIR SINGH                                    ..... Appellant
                         Through:    Mr. Raman Kapur, Sr. Adv. with Mr.
                                     V.B. Arya & Mr. Amit Kochar, Advs.

                               Versus

    NIRMAL SINGH (DECEASED) THROUGH LRS ..Respondent
                  Through: Mr. Abhinav Vashisht, Sr. Adv. with
                           Mr. Rajat Arora & Mr. Ajay Khanna,
                           Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree (dated 15th December,

1990 of the Court of the Additional District Judge, Delhi in Suit

No.326/1981 filed by the deceased respondent/plaintiff against the

appellant/defendant) of specific performance of the Agreement dated 28 th

July, 1962 of sale by the appellant/defendant of land admeasuring 41 bighas

and 16 biswas situated at Village Chattarpur, Delhi to the deceased

respondent/plaintiff.

2. Notice of the appeal was issued and vide ex-parte ad-interim order

dated 21st February, 1991, the execution of the Sale Deed in pursuance to

the decree was stayed. Vide order dated 12th March, 1991, the Trial Court

records were requisitioned. One of the legal heirs of deceased

respondent/plaintiff namely Smt. Hanso Devi died during the pendency of

the appeal and her name was deleted from the array of respondents. On 2 nd

February, 1995, the appeal was admitted for hearing and the earlier interim

order was made absolute till the decision of the appeal. On 19 th November,

2008, when the appeal came up for hearing, the same was dismissed in

default. However, on application made by the appellant/defendant, the same

was vide order dated 25th February, 2009 restored to its original position.

Another legal heir of the deceased respondent/plaintiff namely Smt. Savitri

Devi also died during the pendency of the appeal and her legal heirs were

substituted vide order dated 30th July, 2010. The parties were vide order

dated 24th January, 2011 referred to mediation which though remained

pending till 22nd October, 2013, failed. The counsels for the parties have

been heard.

3. The deceased respondent/plaintiff, on 23rd October, 1963, instituted

the suit from which this appeal arises, pleading:

(i) that the appellant/defendant being a displaced person was

„permanently allotted‟ land bearing Khasra Nos.1657, 1658, 1659,

1666, 1672 to 1675 and 1116 total admeasuring 41 bighas and 16

biswas at Village Chattarpur, Delhi;

(ii) that a Sanad/Certificate in respect of the transfer and allotment

of the said land was to be issued by the Ministry of Rehabilitation on

payment of Rs.2100/-;

(iii) that the appellant/defendant vide Agreement to Sell dated 28th

July, 1962 agreed to sell the entire land to the deceased

respondent/plaintiff at the rate of Rs.2500/- per acre;

(iv) that it was agreed that the appellant/defendant shall execute the

Sale Deed within one month from the date of receipt of obtaining the

Sanad from the Ministry;

(v) that the said Sanad was not issued as the amount of Rs.2100/-

was not deposited by the appellant/defendant, even though the

appellant/defendant at the time of execution of the Agreement to Sell

had received a sum of Rs.2500/- from the deceased

respondent/plaintiff as earnest money;

(vi) that the appellant/defendant had further agreed that in case he

failed to get the Sanad executed or execute the Sale Deed in favour of

the deceased respondent/plaintiff, the deceased respondent/plaintiff

shall be at liberty to get the Sale Deed executed through the Court of

Law at the cost of the appellant/defendant;

(vii) that the appellant/defendant thereafter deposited the amount

due to the department but still did not obtain the Sanad or execute the

Sale Deed in favour of the deceased respondent/plaintiff and on the

contrary started dealing with other persons for sale of the land for a

higher price;

(viii) that the deceased respondent/plaintiff thus filed a suit for

injunction to restrain the appellant/defendant from doing so;

(ix) that the appellant/defendant in the said suit for injunction stated

that he had not been granted the Sanad and he will not commit any

breach of the contract; on his said statement, the suit for injunction

was withdrawn;

(x) that however the appellant/defendant again threatened to

commit breach of contract and though was bound to take delivery of

the Sanad from the department of Rehabilitation and to execute the

Sale Deed in favour of the deceased respondent/plaintiff but was not

doing so inspite of the fact that the necessary orders for issuing the

Sanad had already been passed by the Department and the Sanad was

ready to be delivered to the appellant/defendant;

(xi) that the deceased respondent/plaintiff was ready and willing to

perform his part of the contract and to pay the balance sale

consideration at the time of registration of the Sale Deed and had

already purchased the necessary and requisite stamp papers in this

regard.

In the circumstances, the suit for the relief of specific performance by

directing the appellant/defendant to obtain, procure and receive the Sanad

from the Department of Rehabilitation and to get the Sale Deed executed

and registered in favour of the deceased respondent/plaintiff and in the

alternative for the relief of recovery of damages of Rs.30,000/- for breach of

contract, was filed.

4. The appellant/defendant contested the suit by filing a written

statement raising various preliminary objections and pleading that as per the

case of the deceased respondent/plaintiff himself, the Sale Deed in favour of

the deceased respondent/plaintiff was to be executed within one month of

the grant of the Sanad and since no Sanad of the land had been granted to

the appellant/defendant till then, the suit was premature and liable to be

dismissed. It was further pleaded that though the appellant/defendant had

deposited the required money in the Ministry of Rehabilitation but inspite of

best efforts on his part, the Sanad had not been granted to him.

5. On the aforesaid pleadings of the appellant/defendant, following

preliminary issues were framed in the suit on 31st March, 1964:

"1. Whether the suit is premature? If so what is its effect?

2. Whether the plaintiff has complied with the orders of Shri Tirlochan Singh, Sub Judge, Delhi for depositing cost? OPP"

6. The Court before which the suit was then pending found that the cost

had been paid and thus decided the second of the aforesaid preliminary

issues in favour of the deceased respondent/plaintiff. However, the first

preliminary issue aforesaid was decided in favour of the appellant/defendant

and the suit was held to be premature and was accordingly dismissed vide

judgment and order dated 31st March, 1964.

7. The deceased respondent/plaintiff preferred RFA No.146-D/1964 to

this Court and which was allowed vide judgment dated 21 st May, 1974. It

was held, that the first of the aforesaid two issues should not have been

decided in isolation and that in order to determine this issue, it was necessary

to frame another issue, as to whether the delay in obtaining the Sanad from

the Ministry of Rehabilitation was on the part of the appellant/defendant and

if it was so, the appellant/defendant could be directed to obtain the Sanad

which he had not obtained. It was yet further held that the deceased

respondent/plaintiff had in alternative to the claim for specific performance

also made a claim for recovery of damages of Rs.30,000/- and on proof that

it was the contractual obligation of the appellant/defendant to obtain the

Sanad and that the appellant/defendant had committed a breach thereof, the

claim for damages, if not for specific performance, would still survive. The

suit was accordingly remanded back to the Trial Court for framing proper

issues and to decide the first of the aforesaid issues along with the other

issues.

8. It appears that on remand, the appellant/defendant filed a fresh written

statement and contested the suit on the following grounds:

(a) that the deceased respondent/plaintiff having earlier instituted a

suit for injunction and which was permitted to be withdrawn subject

to payment of Rs.20/- as costs and which costs had not been

deposited/paid, was not entitled to maintain the subsequent suit for

specific performance;

(b) that the appellant/defendant was not the owner of the property;

the title of the property in suit even then vested in the Ministry of

Rehabilitation till the certificate was not granted to the

appellant/defendant; he was thus not vested with the ownership right

of the property and the suit for specific performance against him was

not maintainable;

(c) that it was on the same objection of the appellant/defendant that

the deceased respondent/plaintiff had withdrawn the previous suit for

injunction with liberty to bring fresh one in due course of time when

the appellant/defendant would acquire ownership from the

Government of India; such ownership had not been acquired by the

appellant/defendant till then;

(d) that Notification dated 25th November, 1980 under Section 4

had been issued for acquisition of the said land and as per which

Notification, the land could not be sold and the suit was not

maintainable for the said reason also;

(e) that the deceased respondent/plaintiff in collusion with the

Patwari of the Halka and his two associates has misrepresented and

practiced a fraud on the appellant/defendant and got some agreement

executed in favour of the deceased respondent/plaintiff; the terms and

conditions of the said agreement were not read over to the

appellant/defendant who was an illiterate person and the said

agreement was void for want of consideration;

(f) that the deceased respondent/plaintiff at the time of settlement

of bargain, misrepresented certain facts to the appellant/defendant and

assured him that the deceased respondent/plaintiff himself would

deposit the money which the appellant/defendant had to pay to the

Ministry of Rehabilitation but the deceased respondent/plaintiff had

not done so and was thus himself in violation of the agreement and

not entitled to specific performance thereof;

(g) that though the appellant/defendant had deposited the requisite

money with the Ministry of Rehabilitation but inspite of best efforts

of the appellant/defendant, the Sanad had not been granted to him;

(h) that though the deceased respondent/plaintiff was to pay earnest

money of Rs.2500/- to the appellant/defendant but had paid only a

sum of Rs.500/- stating that the balance Rs.2000/- will be deposited

with the Ministry of Rehabilitation and which had not been done;

(i) that since the appellant/defendant was not the owner of the

property, he could not be directed to convey a title therein to the

deceased respondent/plaintiff.

9. On the pleadings aforesaid of the parties, the following issues were

framed in the suit in November, 1975:

"1. Whether the suit is premature?

2. Whether the defendant entered into with the agreement to sell under misrepresentation and fraud is so, what effect?

3. Whether agreement is void for want of consideration?

4. Whether the plaintiff committed breach in the matter of deposit of money with the Government, if so, its effect?

5. Whether it was obligation of the defendant to obtain Sanad from the Ministry of Rehabilitation?

6. In case Issue No.5 is answered in the affirmative, whether the defendant can be directed to obtain Sanad?

7. Whether the defendant has committed breach of the obligation, if proved Issue No.5?

8. Whether the plaintiff is ready and willing to perform his part of the contract?

9. Whether the plaintiff is entitled to specific performance of the agreement?

10. Whether the plaintiff is entitled to recover Rs.30,000/- as

damages, if not, specific performance is ordered, if not, how much damages if any is the plaintiff entitled?"

The following additional issue was framed on 16th July, 1981:

"Issue No.10A: What is the effect of notification No.F-9 (16/80 L&B dated 25th November, 1980) issued by Union of India on the suit filed by the plaintiff?"

10. The learned ADJ, on the basis of the evidence led before him, has in

the impugned judgment found/observed/held:

(I) that at the time of execution of the Agreement to Sell dated 28 th

July, 1962, there was only an allotment, of the land aforesaid, in the

name of the appellant/defendant by virtue of the appellant/defendant

being one of the members of Bharat Kishan Society and the letter of

allotment was issued only on 23rd October, 1962;

(II) that the appellant/defendant during his deposition had admitted

that he had got the Sanad with respect to the said land in the year

1968;

(III) that the specific plea in the plaint that the allotment of the land

in the year 1962 in favour of the appellant/defendant was permanent,

was not controverted in the written statement;

(IV) that issuance of a Sanad/Certificate was only a mere formality

which was to be undertaken by the Department of the Regional

Settlement Commissioner;

(V) that the basis of the Agreement to Sell dated 28 th July, 1962

was the allotment, though for legal purposes title to the land was to be

vested in the appellant/defendant only by virtue of Sanad;

(VI) that on the date of institution of the suit on 23 rd October, 1963,

the certificate of allotment dated 23rd October, 1962 had already been

issued in the name of the appellant/defendant;

(VII) that the suit thus could not be said to be premature:

(VIII) that as per the Agreement to Sell, it was the obligation of the

appellant/defendant as vendor to obtain the Sanad after depositing the

amount and the appellant/defendant had in the Agreement to Sell

further undertaken that after obtaining the Sanad, he will inform the

deceased respondent/plaintiff in writing and shall execute the Sale

Deed;

(IX) that accordingly, Issues No.1, 5 & 6 were decided in favour of

the deceased respondent/plaintiff and against the appellant/defendant;

(X) that though the appellant/defendant, in the written statement,

had taken a plea of collusion between the deceased

respondent/plaintiff and Halka Patwari and fraud and

misrepresentation had also been pleaded but no particulars of any

fraud or misrepresentation were given and the pleas of fraud and

misrepresentation thus could not be looked into;

(XI) that though the appellant/defendant had pleaded that the

deceased respondent/plaintiff had misrepresented "certain facts to

him" but it was nowhere mentioned in the written statement, as to

what were those facts;

(XII) that though it was the plea of the appellant/defendant in the

written statement that the deceased respondent/plaintiff had assured

the appellant/defendant that the deceased respondent/plaintiff will

himself deposit the requisite money in the Ministry of Rehabilitation

and had not done so and was thus himself in breach of the Agreement

to Sell but the appellant/defendant, while appearing in the witness

box, denied having entered into any transaction with the deceased

respondent/plaintiff or the deceased respondent/plaintiff having paid

any money to the appellant/defendant and deposed of one Shri Kishan

Chand Gupta having got signatures of the appellant/defendant on

some papers, representing that the same were required for accounting

regarding amount paid by the said Shri Kishan Chand Gupta to the

appellant/defendant;

(XIII) that thus the evidence led by the appellant/defendant was

contrary to his pleading;

(XIV) that the evidence beyond pleadings could not be looked at;

(XV) that though the said Shri Kishan Chand Gupta was examined as

a witness but no such question or case was put to him;

(XVI) that vague pleadings of misrepresentation and fraud were of no

avail; reliance in this regard was placed on Varanasaya Sanskrit

Vishwavidyalaya Vs. Rajkishore Tripathi (1977) 1 SCC 279;

(XVII) that none of the witness of the deceased respondent/plaintiff

had been cross-examined by the counsel for the appellant/defendant

with regard to fraud, collusion or misrepresentation;

(XVIII) that the plea taken by the appellant/defendant of the deceased

respondent/plaintiff having assured the appellant/defendant that the

deceased respondent/plaintiff will deposit the money with the

Department of Rehabilitation was not sustainable in view of the

Agreement to Sell and the Receipt vide which earnest money and

advance amount was paid on 28th July, 1962 which shows payment of

Rs.2500/- by the deceased respondent/plaintiff to the

appellant/defendant;

(XIX) that moreover the appellant/defendant in his own testimony

nowhere deposed that the deceased respondent/plaintiff had ever

assured him so;

(XX) that the deceased respondent/plaintiff had examined the writer

of the Agreement to Sell and the Receipt and which two documents

were admitted by the appellant/defendant; the said writer of the

documents had testified that the documents were read over and

explained to the parties; that the appellant/defendant in cross-

examination did not controvert the said witness on the said aspect;

(XXI) that similarly PW-3 being the attesting witness of the

Agreement to Sell and the Receipt was also not cross-examined on the

aspect of fraud and misrepresentation; the only cross-examination was

of payment of Rs.500/- only instead of Rs.2500/- as recorded in the

said document;

(XXII) that accordingly, Issues No.2, 3 & 4 were decided in favour of

the deceased respondent/plaintiff and against the appellant/defendant;

(XXIII) that since the Sanad had already been delivered to the

appellant/defendant in the year 1968, there was no need for giving

any direction therefor as was sought in the suit;

(XXIV) that as per the Agreement to Sell, the obligation to obtain the

Sanad after depositing the requisite amount was of the

appellant/defendant;

(XXV) that there was thus a breach of obligation on behalf of the

appellant/defendant himself;

(XXVI) that there was no denial in the written statement of the

appellant/defendant to the specific plea in the plaint of the deceased

respondent/plaintiff being always ready and willing to perform his

part of the Agreement to Sell;

(XXVII) that the deceased respondent/plaintiff had also not been

cross-examined to the effect that he was not ready and willing to

perform his part of the Agreement to Sell;

(XXVIII) that accordingly Issues No.7 & 8 were decided in favour of

the deceased respondent/plaintiff and against the appellant/defendant;

(XXIX) that Issues No.9 & 10 were decided in favour of the

deceased respondent/plaintiff and against the deceased

appellant/defendant, relying on Prakash Chandra Vs. Angadlal

(1979) 4 SCC 393 holding that ordinary rule is that specific

performance should be granted and that it ought to be denied only

when equitable considerations for its refusal are shown and which had

not been done;

(XXX) that the only contention of the appellant/defendant was that at

the time of the Agreement to Sell, there was no title or right in favour

of the appellant/defendant in the property; however, under Section 5

of the Transfer of Property Act, a future right in property could also

be transferred; further Section 13(1) of the Specific Relief Act, 1963

also permits such a transaction;

(XXXI) that it was also not in dispute that the land had already been

allotted to the appellant/defendant prior to the date of the Agreement

to Sell thereof in favour of the deceased respondent/plaintiff;

(XXXII) that no case had been made out by the appellant/defendant

for denial of the relief of specific performance;

(XXXIII) that there was no legal infirmity found for grant of the

relief of specific performance;

(XXXIV) that accordingly under Issues No.9 & 10, it was held that

the deceased respondent/plaintiff was entitled to the relief of specific

performance;

(XXXV) that the Notification of the acquisition of the land had been

quashed by this Court vide judgment in B.R. Gupta Vs. Union of

India 38 (1989) DLT 243;

(XXXVI) that even otherwise, till taking over of possession of the

land, the right of the owner thereof could not be said to be

extinguished;

(XXXVII) that accordingly the suit was decreed for the relief of

specific performance, giving a direction to the deceased

respondent/plaintiff to deposit the balance sale consideration and

where after the appellant/defendant was directed to execute the Sale

Deed.

11. The senior counsel for the appellant/defendant has argued:

(A) that the Agreement to Sell dated 28th July, 1962 is of 8 acres

(equivalent to 40 bighas and 16 biswas) of land at Chatarpur, Delhi

for a total sale consideration of rs.25,000/- out of which Rs.2500/-

have been paid and the balance was to be paid within one month of

the grant of the Sanad in favour of the appellant/defendant;

(B) that the appellant/defendant in the year 1991 sold the said land

and the suit by the appellant/defendant against the said purchaser has

been dismissed and the possession of the land is with the Station

House Officer;

(C) reliance is placed on Satya Jain Vs. Anis Ahmed Rushdie

(2013) 8 SCC 131, to contend that owing to the long passage of time

since the Agreement to Sell and the drastic change in values of the

property agreed to be sold, specific performance ought not to be

granted.

(D) that since the appellant/defendant on the date of the Agreement

to Sell was not the owner of the land, the Agreement to Sell was void;

12. Per contra, the senior counsel for the deceased respondent/plaintiff

has argued:

(i) that vide interim order dated 21st February, 1991 in this appeal,

the deceased respondent/plaintiff was restrained from selling the

property;

(ii) that any dealing by the appellant/defendant with the property

after the decree will not affect the decree;

(iii) that the judgment in Satya Jain supra has been clarified in

review thereagainst reported in (2013) 8 SCC 147, as being in the

peculiar facts and circumstances of that case and not laying down any

law of general application while issuing the direction for execution of

the Sale Deed at the market price of the land;

(iv) that price escalation, in P.S. Ranakrishna Reddy Vs. M.K.

Bhagyalakshmi (2007) 10 SCC 231 has been held to be not a ground

for refusal of a right of specific performance of an Agreement to Sell;

(v) that the conduct of the appellant/defendant in the present case is

tainted; the appellant/defendant took a false plea of the agreement

being fabricated and which plea has not even been pressed in this

appeal; attention is invited to S.V.R. Mudaliar Vs. Mrs. Rajabu F.

Buhari (1995) 4 SCC 15 laying down that where the seller departed

from truth to bolster his case, the rise in prices cannot be a ground for

denying the relief of specific performance;

(vi) attention is also invited to Narinderjit Singh Vs. North Star

Estate Promoters Limited (2012) 5 SCC 712 also laying down that in

the absence of any pleading of hardship or evidence to show that it

will be inequitable to order specific performance of the agreement, the

relief of specific performance cannot be denied merely on the ground

of escalation in price.

13. The senior counsel for the appellant/defendant in rejoinder has

contended that the Supreme Court in Satya Jain supra had declined specific

performance on the ground of price increase itself and this case has parity

with the facts of the case in Satya Jain and has further contended that it is

for this reason that the parties were referred to mediation which though

remained unsuccessful.

14. As would be apparent from the aforesaid, the senior counsel for the

appellant has raised only two contentions before this Court i.e. firstly of the

decree for specific performance being liable to be set aside for the reason of

the long passage of time for which the appeal remained pending in this

Court and the huge escalation in prices during the said interregnum and

secondly, of the agreement being not specifically enforceable for the reason

of the appellant/defendant on the date of execution thereof being not the

owner of the property agreed to be sold.

15. In view of the senior counsel for the appellant/defendant having

confined the argument to the said two aspects only, there is no need to go

into the other findings of the learned ADJ, though having gone through the

entire Trial Court record, I may mention that I agree therewith and the same

are found to be on correct appreciation of the evidence led before the

learned ADJ.

16. Taking up the second of the aforesaid two contentions of the senior

counsel for the appellant/defendant first, though the same has also been dealt

with properly in the impugned judgment but I may add that the principle

behind Sections 41 & 43 of the Transfer of Property Act, 1882 can also be

beneficially applied to negate such argument of the counsel for the

appellant/defendant. Section 41 provides that where an ostensible owner of

property transfers the same for consideration, the transfer shall not be

voidable on the ground that the transferor was not authorised to make it.

Section 43 provides that where a person fraudulently or erroneously

represents that he is authorised to transfer certain immoveable property and

professes to transfer such property for consideration, such transfer shall, at

the option of the transferee, operate on any interest which the transferor may

acquire in such property at any time during which the contract of transfer

subsists. It is not as if the appellant/defendant on the date of the Agreement

to Sell i.e. on 28th July, 1962 was without any right whatsoever in the

property. The appellant/defendant in his examination-in-chief stated that the

subject land was allotted to him in the year 1954 and the Pakka allotment

was made to him in the year 1968. There is also on the record a document

titled Sanad of Permanent Allotment of Acquired Evacuee property in rural

areas issued by the Ministry of Rehabilitation dated 23rd October, 1962 and

which also records that the subject land stood transferred to the

appellant/defendant for the purposes of the compensation payable to him

under the Displaced Persons Compensation and Rehabilitation Act, 1954.

Section 13(1)(a) of the Specific Relief Act referred by the learned ADJ also

provides that where a person contracts to sell certain immovable property

having no title or only an imperfect title thereto, and if subsequently

acquires any interest in the property, the purchaser may compel such person

to make good the contract out of such interest. The Supreme Court in Silla

Chandra Sekharam Vs. Ramchandra Sahu AIR 1964 SC 1789 held that

the equivalent of Section 13(1)(a) of the Specific Relief Act, 1877 applies to

executory contract; Undoubtedly, the appellant/defendant had agreed to sell

to the deceased respondent/plaintiff the land already allotted to him and

possessed by him, after getting the Sanad with respect thereof in his favour.

Similarly, in Laxman Tatyaba Kankate Vs. Taramati Harishchandra

Dhatrak (2010) 7 SCC 71 it was held that where a property is agreed to be

sold with an imperfect title and is encumbered, the purchaser has a right to

compel the seller to redeem the mortgage and obtain a valid discharge and

then specifically perform the contract.

17. The senior counsel for the appellant/defendant, except for raising the

argument, has not been able to justify the same by any provision of law or

precedent.

18. As far as the only other contention of price rise is concerned, though

undoubtedly the Agreement to Sell is over half a century old but I find the

appellant/defendant himself to blame therefor. When the deceased

respondent/plaintiff immediately after the Agreement to Sell filed a suit for

permanent injunction restraining the appellant/defendant from selling the

property to others, the appellant/defendant at that time did not take any of

the defences as taken to the suit for specific performance subsequently filed

but assured that after getting the Sanad he will transfer the property to the

deceased respondent/plaintiff. He however did not do so. Thereafter, when

the suit for specific performance was filed, the appellant/defendant took the

specious plea of the same being still premature and which plea in fact

succeeded, compelling the deceased respondent/plaintiff to approach this

Court by way of a RFA and which was allowed and which whole process

consumed more than 10 years. A perusal of the order sheet of the suit after

remand also shows the appellant/defendant to have dragged the proceeding

at each and every stage. The last nail in the coffin is the plea now taken of

the disposal of the property even after the decree of the specific performance

had been passed. Even in the appeal, the appellant/defendant did not show

any expediency and has rather been compelled to argue the same. The

appellant/defendant being himself guilty of the long delay, cannot be

allowed to benefit therefrom. The sole reliance placed on Satya Jain, is

misconceived as the same, in review, has been clarified as having no

precedentiary value. Else, the law is clear. A party to a litigation cannot

benefit from its own wrongs/defaults and the delays if any in disposal of lis

owing to the courts being overburdened cannot harm anyone. The

appellant/defendant did not show any anxiety to have the appeal disposed

off. Though this Court is now hearing appeals of the year 2005 and in the

category of cases of senior citizens of the year 2008, the appellant/defendant

not once applied for early hearing and rather allowed the appeal to languish.

The appellant/defendant after so keeping the appeal pending cannot be heard

to contend that owing to such long pendency of appeal, he has become

entitled to have the same allowed. If the same were to be permitted, it will

give impetus to the practise to have the appeals pending for long.

19. No merit is thus found in the only two contentions raised by the senior

counsel for the appellant/defendant. The appeal is resultantly dismissed with

costs. The counsel fee is assessed at Rs.25,000/-.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

JANUARY 03, 2014 „bs‟..