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1997 DIGILAW 328 (RAJ)

Raja Pratap Singh v. Vinod Kumar

1997-03-04

R.R.YADAV

body1997
Honble YADAV, J.–The instant First Appeal arises out of judgment and decree dated 30.5.1981 passed by the learned District Judge, Merta in Civil Original Suit No. 11 of 1977 between Raja Pratap Singh and Vinod Kumar. (2). The brief facts which are necessary for decision of the present appeal are, that the plaintiff-appellant filed a suit for recovery of Rs. 14,000/- against the defen- dant-respondent with the allegation that on 2.9.1971, he sold the premises of Prem Talkies, Kuchaman City including machines and other fittings to the defendant-respondent for a sum of Rs.40,000/-. The defendant paid Rs. 17,500/- in cash at the time of execution of the sale- deed and gave a cheque dated 2.9.1971 for Rs.20,000/-. The defendant also gave a post-dated Cheque for Rs. 6,000/- on 2.10.1971. It was agreed upon between the parties that the seller shall get the suit property of Prem Talkies actually vacated from the tenant and hand-over the vacant possession to the purchaser within a period of 3 months and thereafter the balance amount of the sale price shall be paid within a week. It was further agreed upon between the parties that in case the seller fails to get the said property actually vacated within the period of three months then a suit for eviction shall be filed by the purchaser at the cost and risk of the seller. (3). The plaintiff-appellant encashed the cheque of Rs. 20,000/- but the cheque for Rs. 6,000/- was dishonoured by the Bank on 23.10.1971 on the ground that the defendant has instructed his Bank for not making the payment to the plaintiff. (4). It appears from the pleadings of the parties that the premises of M/s. Prem Talkies on the date of execution of sale- deed was in occupation of one Shri Abdul Razak Alark who did not vacate the premises, hence the defendant-purchaser was compelled to file suit for eviction against him which was compromised between the purchaser and Abdul Razak Alark on 12.12.1974. (5). In order to counter-blast the suit of the plaintiff, the defendant has filed a counter claim for Rs. 22,000/- but no Court-fee has been paid. (6). The learned District Judge on the basis of pleadings of the parties framed as many as 4 issues and attention of the parties was focussed to adduce evidence in support of their respective claims. (7). 22,000/- but no Court-fee has been paid. (6). The learned District Judge on the basis of pleadings of the parties framed as many as 4 issues and attention of the parties was focussed to adduce evidence in support of their respective claims. (7). In support of his claims, the plaintiff examined himself as PW 1 and adduced documentary evidence in support of recovery of Rs. 14,000/- against the defendant-purchaser. In rebuttal, the defendant examined himself as DW 1 and adduced documentary evidence in support of his case. (8). After analytical discussion of oral and documentary evidence adduced by the parties, the learned trial Court decreed the suit for recovery of Rs. 6,500/- only and the rest of the amount claimed by the plaintiff was negatived. (9). Aggrieved against the judgment and decree passed by the learned trial Court, the plaintiff-appellant has filed S.B. Civil First Appeal No. 82/81 and against dismissal of his counter- claim, the defendant-respondent has also filed S.B. Civil First Appeal No. 84/81. Since both the First Appeals arise out of common judgment and decree, therefore, they deserve to be decided by a common judgment. S.B. Ci- vil First Appeal No. 82/81 is being treated as leading case. (10). I have heard learned counsel for the parties. (11). Perused the original record of the learned trial Court with the assistance of learned counsel for the parties. (12). Main thrust of argument of learned counsel for the plaintiff-appellant Mr.A.L. Chopra, is that the Court-below has wrongly rejected the claim of the plaintiff on the ground of limitation with regard to claim of Rs. 6,000/-. Suffice it to say in this regard that cause of action according to the plaintiff accrued on 23.10.1971 when the cheque was dishonoured while the suit was filed before the learned trial Court on 12.5.1977. It goes without saying that on the date of institution of the suit, the claim based on post-dated cheque amounting to Rs, 6,000/- become barred by time and was not recoverable. (13). Learned counsel for the plaintiff-appellant Mr. A.L. Chopra streneously argued before me that at least the learned trial Court ought to have decreed the interest on the amount of Rs. 6,500/-. (13). Learned counsel for the plaintiff-appellant Mr. A.L. Chopra streneously argued before me that at least the learned trial Court ought to have decreed the interest on the amount of Rs. 6,500/-. The argument of the learned counsel for the plaintiff- appellant is not acceptable to me for the reason that the learned trial Court has given cogent and convincing reasons not to grant interest on the amount of Rs. 6,500/-. I am in full agreement with the finding recorded by the learned trial Court in not granting interest on the amount of Rs. 6,500/- and an argument contrary to it, is hereby repelled. (14). The learned counsel for the defendant-respondent argued that since he was compelled to file suit for eviction against the tenant Abdul Razak Alark to obtain possession of the disputed premises, therefore, within the terms and conditions stipulated under the sale-deed dated 2.9.1971, he is not required to pay the amount. The learned counsel for the defendant-respondent invited my attention towards the stipulations made in the registered sale-deed dated 2.9.1971. In fact, there is no substance in the aforesaid argument of learned counsel for the defendant- respondent. (15). I am of the view that the learned trial court after analytical discussion of the materials available on record has rightly arrived at the conclusion that the plaintiff-seller is entitled to recover Rs. 6,500/- from the defendant. The finding recorded by the learned lower appellate Court on this question is eminently just and proper and does not require interference. (16). With regard to counter-claim filed by the defendant- purchaser, it is sufficient to say that firstly, court-fee in the counter-claim was not paid and secondly, the cost incurred in prosecuting the civil suit for eviction against the tenant was also not disclosed, therefore, the inference drawn by the learned lower appellate Court on this issue is found to be just and proper and I am at one with the same. (17). As a result of the afore-mentioned discussion, both the appeals are hereby dismissed and the judgment and decree passed by the learned trial Court dated 30.5.1981 is hereby affirmed. Looking into the peculiar facts and circumstances of the case, both the parties are directed to bear their own costs. A copy of this judgment be placed on S.B. Civil First Appeal No. 84 of 1981.