Punjab-Haryana High Court
Shabeera vs Smt.Aki Devi on 8 May, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:064261
RSA No.634 of 1994 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.634 of 1994 (O&M)
Date of Order:08.05.2024
Shabeera and another
.Appellants
Versus
Smt. Aki Devi (Deceased) through Lrs
..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. I.P.S.Kohli, Advocate
for the appellant (Through VC)
Mr. Y.S.Turka, Advocate
for the respondent.
ANIL KSHETARPAL, J
1. The learned counsel representing the appellants has informed
the court about the death of the appellants, however, he submits that he is
prepared with the case.
2. As per the amendment in Order XXII Rule 3 CPC, within the
time limited by law, no application is made under sub-rule (1), the suit shall
not abate and as against the plaintiff and the judgment may be pronounced
notwithstanding his or her death which shall have the same effect before the
death took place and the contract between the deceased and the pleader in
that event shall continue to subsist.
3. In this regular second appeal, the plaintiffs assail the correctness
of the concurrent findings of fact arrived at by the courts below while
dismissing their suit for possession by way of specific performance while
ordering refund of Rs.2000/- along with interest.
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4. The execution of the agreement to sell dated 11.02.1987, is
admitted between the parties. As per the agreement to sell, the plaintiffs
paid Rs.9,000/- to the defendant Smt. Aki Devi, whereas the defendant
claims that she received Rs.2,000/- and not Rs.9,000/-. The sale deed was to
be executed and registered on or before 22.05.1987. Smt. Aki Devi sent a
notice to the plaintiffs intimating that she has received Rs.2000/- and she is
prepared to execute the sale deed if the plaintiffs are prepared to pay the
remaining amount. The plaintiffs did not send any reply. On 22.05.1987, the
plaintiffs and the defendants attended the office of the Registrar, however,
the sale deed was neither executed or registered
6. Both the courts have found that the plaintiffs were not ready and
willing to perform their part of the contract.
7. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paper book.
8. The learned counsel representing the appellants has made the
following submissions:-
(1) That the failure of the plaintiffs to examine two marginal
witnesses and the scribe of the agreement to sell would
not make any difference because the execution of the
agreement to sell is admitted. He further submits that at
the stage of rebuttal, efforts were made to examine the
two marginal witnesses, however, the plaintiffs were not
permitted.
(2) The plaintiffs also visited the office of the Registrar on
22.05.1987
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(3) The Sarpanch of the village has stated that there was no
meeting of the panchayat to resolve the controversy
between the parties.
9. This court has considered the submissions of the learned
counsel representing the parties.
10. It is evident that the defendant Smt. Aki Devi on 25.04.1987 i.e.
approximately one month before the date on which the sale deed was to be
executed, sent a notice to the plaintiffs who did not bother to reply. The
plaintiffs in order to prove that Rs.9,000/- was paid particularly when the
defendant has claimed that only Rs.2000/- has been paid to her, should have
examined the two marginal witnesses and the scribe of the agreement to sell.
These witnesses were required to examine in affirmative evidence. Hence, it
is the plaintiffs who are at fault. They could not be examined in rebuttal
evidence particularly when the defendant had already led her evidence. The
period of 37 years have elapsed from the date the agreement to sell was
executed. Both the courts have exercised discretion which is not proved to
be suffering from any substantive error or perversity.
11. Keeping in view the aforesaid facts and discussion, no ground
to interfere is made out.
12. Dismissed.
13. All the pending miscellaneous applications, if any, are also
disposed of.
May 08, 2024 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
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