RSA No. 155 of 2005. Case: Tara Chand and ors. Vs Madan Lal. Himachal Pradesh High Court

Case NumberRSA No. 155 of 2005
CounselFor Appellant: Mr. Ajay Sharma, Advocate and For Respondents: Mr. Neeraj Gupta, Advocate
JudgesMr. Sandeep Sharma, J
IssueCivil Procedure Code - Section 100
Judgement DateApril 17, 2017
CourtHimachal Pradesh High Court


Sandeep Sharma, Judge.

  1. Instant Regular Second Appeal under Section 100 of the Civil Procedure Code has been filed against judgment and decree dated 28.1.2005, passed by the learned Additional District Judge, Fast Track Court, Una in Civil Appeal No. 220/2K RBT No. 194/94/00, affirming judgment and decree dated 9.11.2000 passed in Civil Suit No. 224/1994 by Sub Judge(II), Una, whereby suit filed by respondent-plaintiff (hereafter, ‘plaintiff’) for possession by specific performance of agreement came to be decreed.

  2. Briefly stated facts as emerge from record are that the plaintiff filed a suit for specific performance of agreements dated 31.5.1993 and 31.4.1994, seeking therein direction to the appellants-defendants (hereafter, ‘defendants’), to execute and get the sale deed registered, of land measuring 0-00-73 hectares comprised in Khewat No. 169 min, Khatauni No. 246 min, bearing Khasra Nos. 881/2 (0-00-20), 882/2 (0-00-20) and 885/1 (0-00-33), as per Aks Tatima attached with the plaint, entered in Bandobast for the year 1987-88, situate in Village Jhalera, Tehsil and District Una, Himachal Pradesh on receipt of remaining sale consideration of Rs.14,000/-. Apart from aforesaid prayer, plaintiff, in the alternative, also prayed for recovery of Rs.44,000/-. Plaintiff averred in the plaint that on 31.5.1993, original defendant namely Atra entered into an agreement with him for the sale of land as detailed herein above (hereafter, ‘suit land’) for total consideration of Rs.44,000/-. As per the plaintiff, parties executed agreement to sell on 31.5.1993 and on the same day a sum of Rs.30,000/- was paid to the defendant by the plaintiff as part payment qua sale consideration. Plaintiff further claimed that steps for sale by way of Tatima and permission from Town and Country Planning, Una were to be taken by the defendant. However, defendant expressed his inability to execute and get the sale deed registered on 30.4.1994, since he failed to get necessary permission from the Town and Country Planning Department, accordingly, on 30.4.1994, defendant extended date of performance of agreement till 31.8.1994 and the same was reduced into writing on the back of the agreement, whereby defendant agreed to execute registered sale deed in favour of the plaintiff on or before 31.8.1994. Plaintiff further alleged that he was ready and willing to perform his part of agreement to execute sale deed for consideration of Rs.14,000/- and in this regard, he requested defendant time and again to perform his part of agreement and also got issued a legal notice dated 2.9.1994, requesting him to execute sale deed in his favour. But since defendant failed to do the needful, he was compelled to file the suit seeking direction to the defendant to get sale deed registered in terms of agreements dated 31.5.1993 and 30.4.1994.

  3. Defendant, by way of written statement admitted execution of agreement dated 31.5.1993 as well as receipt of amount of Rs.30,000/- as part payment of sale consideration. However, defendant stated that he had agreed to execute sale deed on 30.4.1994, after receipt of remaining amount of Rs. 14,000/-, however defendant alleged that though he was always ready and willing to execute the sale deed in terms of agreement but denied that he could not complete codal formalities as required under agreement and further denied that date of execution of sale deed was extended till 31.8.1994 at his instance, rather, he alleged that time was extended at the instance of plaintiff as he had no money to pay balance sale price. However, the written statement suggests that defendant admitted the writing as contained on the backside of the agreement. Defendant further alleged that codal formality of obtaining permission from Department was to be completed by the plaintiff and since he failed to complete the codal formalities, sale deed could not be executed within stipulated time. Defendant also admitted factum of receipt of notice allegedly got issued by the plaintiff and claimed that he was ready and willing to get sale deed registered in his favour and as such both the parties approached court of Sub Registrar, Una, wherein plaintiff showed his reluctance for the execution of sale deed. Defendant further claimed that Sub Registrar refused to extend the date further. At the instance of plaintiff, Sub Registrar gave time till 17.9.1994 for making balance payment and to get the sale deed executed but on 17.9.1994, plaintiff never turned up in the office of Sub Registrar for the aforesaid purpose. In the aforesaid background, defendant prayed for dismissal of the suit of the plaintiff. Plaintiff, by way of replication, reasserted his claim as set up in the plaint and denied the contents of written statement, contrary to the plaint.

  4. Learned trial Court, on the basis of pleadings of the parties, framed following issues:

    “1. Whether the plaintiff is entitled for decree of specific performance , on the basis of alleged agreements? OPP

  5. Whether the plaintiff is entitled for recovery of Rs.44,000/-, if issue No.1 is proved against the plaintiff? OPP

  6. Relief.”

  7. Subsequently, learned trial Court, vide judgment and decree dated 9.11.2000, decreed the suit of the plaintiff for specific performance of contract with direction to the plaintiff to deposit balance amount of Rs.14,000/- within two months from the date of judgment, failing which suit of the plaintiff shall stand dismissed. Learned trial Court further held that in case plaintiff deposits aforesaid amount within two months, on or before 8.1.2000, defendant shall execute sale deed within two months i.e. on or before 8.3.2001, in terms of agreement Ext. P1, qua the suit land. Learned trial Court, further ordered that in case, defendant failed to execute sale deed on 8.3.2001, plaintiff shall be at liberty to approach the Court and Reader of the Court shall get sale deed registered and cost of registration and stamp papers, etc. shall be borne by the plaintiff.

  8. Defendant, feeling aggrieved by the aforesaid judgment and decree, preferred an appeal under Section 96 CPC before the Additional District Judge, Fast Track Court, Una, which came to be registered as Civil Appeal No. 220/2K RBT No. 194/04/00. However, the fact remains that the aforesaid appeal was dismissed by the first appellate Court vide judgment and decree dated 28.1.2005. Hence, this Regular Second Appeal.

  9. The Regular Second Appeal was admitted by this Court on 3.8.2004 on the following substantial question of law:

    “Whether without there being permission from the Town & Country Planning Authorities, the decree for specific performance of agreement could not have been passed by the two courts below?

  10. Before adverting to the merits of the case, it may be noticed that during proceedings of the case, wherein learned counsel representing the defendant while inviting attention of this Court to the evidence be it ocular or documentary, adduced on record by the parties, more particularly, Ext. D1, DW-1/A, DW-1/B and DW-1/C, stated that the defendant was ready and willing to perform his part of agreement in terms of Ext. P1 and Ext. P3, whereby parties had agreed to get the sale deed executed in terms of Ext. P1, as such, findings contrary to the same returned by the learned Courts below are wrong, perverse and deserve to be set aside. Further, the perusal of Page-6 of the instant appeal, clearly suggests that defendants had specifically proposed, substantial question of law No.2, “whether courts below misread and misappreciated oral and documentary evidence of defendants more especially documents Ex.DW-1/A, DW-1/B and Ex. DW-1/C thereby vitiating the impugned judgments and decrees?” However, the fact remains that this Court admitted the present appeal on some other substantial question of law, reproduced herein above.

  11. After hearing the submissions having been made by the learned counsel representing the plaintiff, which would be taken note of herein below, as well as evidence available on record, this Court is of the view that additional substantial question of law, which otherwise was proposed by the defendant at the time of filing of the appeal, is required to be framed, for the proper adjudication of the matter at hand. It would be relevant to reproduce herein below provisions of Section 100 CPC:

    “100. Second Appeal.-- (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

    (2) An appeal may lie under this section from an appellate decree passed ex parte.

    (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

    (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

    (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]

    [100A. No further appeal in certain cases? Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order or such single Judge in such appeal or from any decree passed in such appeal.]”

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