Punjab-Haryana High Court
Gian Kaur vs Harbans Singh And Another on 12 January, 2024
Neutral Citation No:=2024:PHHC:004647
RSA-1220-2020 (O&M) -1- 2024:PHHC:004647
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
113 RSA-1220-2020 (O&M)
Date of decision:12.01.2024
Gian Kaur ... Appellant
Vs.
Harbans Singh & others ... Respondents
CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR.
Present: Mr. M.S. Sachdev, Advocate for the appellant.
...
SUKHVINDER KAUR, J.
1. This is a regular second appeal filed by the plaintiff/appellant
against the concurrent finding recorded by both the Courts below vide which
suit of the plaintiffs was ex-parte dismissed.
2. Brief facts as per plaint are that the defendants approached the
plaintiff and offered to sell the suit property as detailed in the head note of
the plaint. Defendant No.1 through his attorney defendant No.2 - Ujagar
Singh entered into an agreement to sell dated 06.05.1982 in the presence of
Sohan Singh, Nardeep Singh and other respectables. Husband of the plaintiff
- Gurdev Singh signed the said agreement to sell on behalf of plaintiff Gian
Kaur being authorized by the plaintiff. Defendant No.2 also duly signed the
said agreement dated 06.05.1982 being attorney of defendant No.1. Suit
property as detailed in the head note of the plaint measuring 20 marlas was
agreed to be sold to the plaintiffs for a sum of Rs.90,000/- and Rs.15,000/-
were received as earnest money. Possession of the suit property was
delivered to the plaintiff at the time of execution of the agreement dated
06.05.1982. No date was fixed for execution of the registration of the sale
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deed. It was also agreed between the parties that the seller would get the
'urban sealing certificate' from the concerned department and would inform
accordingly within two months for performing the part of the agreement.
Thereafter plaintiff raised construction over the said property by spending
huge amount and also got electricity connection and is using the suit
property. Plaintiff requested the defendants many times to execute the sale
deed in terms of the agreement to sell dated 06.05.1982 but to no effect.
Thereafter a legal notice dated 10.08.2015 was got served to execute the sale
deed on 29.09.2015 but defendants never turned up to perform their part of
the contract.
Vide judgment and decree dated 08.10.2018, suit of the plaintiff
was dismissed by the trial Court and appeal preferred before the First
Appellate Court was also dismissed vide judgment and decree dated
07.11.2019. Hence, the present second appeal.
3. Learned counsel for the appellant while relying upon the
decision of the Apex Court in Mst. Sugani Vs. Rameshwar Dass &
another, 2006(4) RCR (Civil) 319 and Panchanan Dhara & others Vs.
Monmatha Nath Maity through his L.Rs. & another, 2006(3) RCR
(Civil) 212 has contended that the Courts below have totally ignored the fact
that the time was not essence of the contract in question. So finding given by
the trial Court that the suit was barred by limitation, was patently wrong. He
has further contended that the respondents were to obtain the 'urban sealing
certificate' and thereafter the sale deed was to be executed but the
respondents neither obtained the said certificate nor they executed the sale
deed despite repeated requests made by the appellant in this regard. He has
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submitted that there is ample evidence on record regarding readiness and
willingness of the appellant to perform her part of the contract and it was the
respondents who did not honour the agreement.
4. I have heard learned counsel for the appellant and perused the
record thoroughly.
5. This fact is not disputed that the agreement in question was
executed on 06.05.1982. It is again not disputed that no date was fixed for
execution of the sale deed and it was agreed that the seller would obtain the
'urban sealing certificate' and thereafter would execute the sale deed. The
suit was filed before the trial Court in November, 2015 i.e. after a long gap
of 33 years from the date of execution of the agreement to sell dated
06.05.1982. It has been rightly observed by both the Courts below that
during this pretty long period of 33 years, no effort was ever made by the
appellant to get the sale deed executed in her favour. Neither she approached
the respondents for pressing them to obtain the requisite certificate to
execute the sale deed nor asked them to return the earnest money.
6. Though time is not essence for the agreement in question but at
the same time, it is also the settled law that it has to be performed within a
reasonable time period, by taking into view all the surrounding
circumstances and the nature of the property. In the instant case, the suit
property is urban property. Nothing has been produced on record explaining
the delay of 33 years in filing of the suit for specific performance. As per
Section 16 (C) of the Specific Performance Act, in a suit for specific
performance, plaintiff is to prove that he was always willing and ready to
perform his part of the contract at all material times, but in the instant case
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when the plaintiff slept over the matter for 33 years in filing the suit for
specific performance and did not make any effort to get executed the sale
deed in question then the readiness and willingness of the plaintiff is not
proved. In Nanjanppan Vs. Ramasamy & another, 2015 (2) RCR (Civil)
224, when the agreement to sell regarding property was executed 27 years
prior to institution of the suit, then relief of specific performance of the
agreement was declined by the Apex Court by observing that in view of
passage of time and escalation of value of the property, grant of specific
performance would give an unfair advantage to purchaser whereas the
performance of the contract would involve greater hardship to seller.
7. So in the instant case also, when the plaintiff failed to file the
suit for specific performance within the reasonable time from the date of
execution of the agreement and filed the same after a delay of more than 33
years, then readiness and willingness on the part of the plaintiff to perform
her part of the contract is not proved and the suit has been rightly dismissed.
As such, the case law cited by learned counsel for appellant is of no help to
him.
8. No question of law much less substantial question of law arises
for determination in the present second appeal. The appeal being without
merits stands dismissed.
9. All pending applications, if any, also stand disposed of
accordingly.
12.01.2024 ( SUKHVINDER KAUR )
harjeet JUDGE
1. Whether speaking/reasoned? Yes/No
2. Whether reportable? Yes/No
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