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2018 DIGILAW 2056 (ALL)

Kamal Kumar v. Kunwar Ajay Singh

2018-09-26

VIJAY LAKSHMI

body2018
JUDGMENT : 1. This Second Appeal is directed against the judgment and order dated 28.7.2018 passed by the Additional District Judge, Court no. 1, Moradabad, in Civil Appeal No. 23 of 2015, Kamal Kumar Vs. Kunwar Ajay Singh, whereby Civil Appeal No. 23 of 2015 filed by the plaintiff/appellant against the exparte judgment and order dated 6.12.2014 dismissing the plaintiff's Suit No. 321 of 2003, Kamal Kumar Vs. Ajay Singh, for specific performance of contract, has been dismissed. 2. I have heard learned counsel for the appellant on admission and have gone through the available record. 3. Some relevant facts in brief are that the plaintiff Kamal Kumar had filed Original Suit No. 321 of 2003, seeking relief of specific performance of contract of sale against the defendant on the ground that on 13.12.1988 the plaintiff entered into a contract with the defendant and one Kunwar Vijendra Singh for sale of a shop measuring 12-846 Sq. Meter for Rs. 22,000/-as consideration money. A registered agreement to sell was executed by the defendant and Kunwar Vijendra Singh in favour of the plaintiff and the defendant received Rs.10,000/-as earnest money from the plaintiff. The remaining amount of Rs.12000/-was agreed to be paid at the time of execution of the sale deed. In the meantime Kunwar Vijendra Singh died issueless. According to the plaint averments, since 13.12.1988 the plaintiff was ready and willing for the execution of the sale deed of the disputed shop, which was under the tenancy of the plaintiff since the year 1954, as it was taken on rent by the father of the plaintiff and after his death the disputed shop was under the tenancy of the plaintiff. In the plaint, it was alleged by the plaintiff that the defendant, with malafide intention is not willing to executed the sale deed of the shop in dispute in his favour. It was further averred in the plaint that the plaintiff sent a notice dated 22.7.2003 to the defendant through his counsel requesting him to execute the sale deed of the disputed shop and to come to the office of the Sub-Registrar, Moradabad, on 12.8.2003 to execute the sale deed. However, the defendant did not appear before the office of the Sub-Registrar, Moradabad, on 12.8.2003, therefore, the plaintiff had no other option but to file the suit for specific performance of contract. 4. However, the defendant did not appear before the office of the Sub-Registrar, Moradabad, on 12.8.2003, therefore, the plaintiff had no other option but to file the suit for specific performance of contract. 4. The defendant filed his written statement denying from the plaint allegations. In the written statement, it was stated that the disputed shop was taken on rent by the plaintiff on 1.4.1999 on a monthly rent of Rs. 2000/-. However, the plaintiff since 1.4.2001 did not pay any rent, therefore, the defendant served a registered notice on the plaintiff through is Advocate. The plaintiff thereafter concocted a false story and filed the suit in the court. The alleged agreement to sell dated 13.12.1988 has been fabricated by the plaintiff having forged signatures and thumb impressions of the defendant. On the aforesaid grounds, it was prayed that the suit be dismissed. 5. On the basis of the pleadings of the parties the trial court framed seven issues, out of which Issue no. 1 was relevant, which was to the effect that whether the alleged agreement to sell dated 13.12.1988 is a forged and void document? 6. In support of his case the plaintiff filed documentary evidence including copy of the agreement to sell, copy of the notice and copy of the Attendance Register of the Sub-Registrar's office. In oral evidence the plaintiff examined himself as PW1. 7. However, after filing of the written statement neither the defendant nor his counsel appeared before the trial court, hence the suit proceeded exparte against him and on 6.12.2014 the exparte judgment was passed. 8. The learned trial court after hearing exparte arguments of the plaintiff and on the basis of the evidence available on record, came to the conclusion that the alleged agreement to sell, on the basis of which the plaintiff has filed the suit for specific performance of contract, is of the year 1988, whereas the suit has been filed in the year 2003. As such the suit of the plaintiff is barred by time and is liable to be dismissed. 9. Accordingly, learned trial court vide its judgment dated 6.12.2014 dismissed the suit of the plaintiff exparte on the ground of inordinate delay. 10. In appeal, the learned lower appellate court framed the following point for determination:- “Whether the plaintiff's suit for the relief of specific performance of agreement to sell dated 13.12.1988 is barred by time? 11. 9. Accordingly, learned trial court vide its judgment dated 6.12.2014 dismissed the suit of the plaintiff exparte on the ground of inordinate delay. 10. In appeal, the learned lower appellate court framed the following point for determination:- “Whether the plaintiff's suit for the relief of specific performance of agreement to sell dated 13.12.1988 is barred by time? 11. Before the lower appellate court, it was argued that since no notice as per the terms of agreement was given from the side of the defendant-respondent to the plaintiff-appellant about obtaining of permission for sale from the court of District Judge, Moradabad, or the competent authority, the plaintiff could not ascertain the date from which the period of three months would start for enforcing the agreement to sell. However, the learned lower appellate court refused to accept the aforesaid argument on the ground that the agreement for sale is of 13.12.1988 and the plaintiff did not take any initiative for the execution of the sale deed up to the period of more than 14 years, before the filing of the suit for specific performance of contract. The learned lower appellate court was of the view that the plaintiff should have waited up to a reasonable period for the defendant in obtaining permission of the District Judge or the competent authority and if the defendant had failed to obtain any permission from the competent authority, the plaintiff himself should have initiated action against the executants of the agreement to sell in getting the sale deed executed. But, the plaintiff himself was negligent towards his right and he did not show any readiness and willingness to perform his part of the contract up to the period of 14 years. With the aforesaid observation the lower appellate court dismissed the appeal filed by the plaintiff-appellant. 12. Being aggrieved, now the plaintiff-appellant is before this court in Second Appeal. 13. Learned counsel for the appellant has contended that both the courts below have passed the impugned judgments and orders dated 6.12.2014 and 28.7.2018 in an arbitrary manner and without going through the documents adduced by the plaintiff-appellant in evidence. Learned counsel has further contended that the defendant-respondent has not fulfilled the terms and conditions of the agreement to sell, therefore, the period limitation will not be applicable in this case. Learned counsel has further contended that the defendant-respondent has not fulfilled the terms and conditions of the agreement to sell, therefore, the period limitation will not be applicable in this case. On the aforesaid grounds it has been prayed that the appeal be allowed and both the impugned judgments and orders, passed by the courts below be set aside. 14. Having heard learned counsel for the appellant and after perusing the record it appears that concurrent finding of facts against the plaintiff-appellant have been recorded by both the courts below. There is inordinate delay of more than 14 years in filing the suit for specific performance of contract by the plaintiff, without any plausible explanation for the same. The plaintiff was sleeping over his rights and the law does not help a person, who is not vigilant towards his rights. The long delay of more than 14 years in filing the suit for specific performance of contract itself shows that the plaintiff-appellant was not ready and willing to perform his part of the contract. Both the courts below have rightly dismissed the suit and appeal on the aforesaid ground. There does not appear any reason to interfere in the concurrent findings recorded by the courts below. 15. No debatable substantial questions of law is found invol ved in this second appeal. 16. The Hon'ble Apex Court in catena of judgments has laid down the law that the concurrent findings of fact recorded by two courts below should not be interfered by the High Court in Second Appeal, unless and until the findings are perverse. 17. In a recent case of Shivah Balram Haibatti Vs. Avinash Maruthi Pawar (2018)11 SCC 652 the Apex Court has held as under:- “...... These findings being concurrent findings of fact were binding on the High Court and, therefore, the second appeal should have been dismissed in limine as involving no substantial question of law.” 18. In another recent case of Narendra and others Vs. Ajabrao S/o Narayan Katare (dead) through legal representatives, (2018) 11 SCC 564 the Hon'ble Apex Court held as under:- “...interference in second appeal with finding of fact is permissible where such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or where that finding is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law permitting interference in Second Appeal.” 19. In one more recent case Dalip Singh Vs. Bhupinder Kaur, (2018) 3 SCC 677 the Hon'ble Apex Court has held that if there is no perversity in concurrent findings of fact, interference by the High Court in Second Appeal is not permissible. 20. In view of the above cited legal position and in absence of any arguable substantial question of law, this Second Appeal is liable to be dismissed at the admission stage itself and is accordingly dismissed.