IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA

AT CHANDIGARH.

RSA No.___________________of 2017

Gurinder Singh & others ...Appellants

Versus

Ranjit Kaur & others .Respondents

Court Fees

Chandigarh (Karan Garg) (Teevar Sharma )

P-2568/2010 P-2568/2010

Dated: 20.06.2017 (Abhishek Vig)

P-951/2008
Advocates
Counsel for the Appellants
 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA

AT CHANDIGARH.

RSA No.___________________of 2017

Gurinder Singh & others ...Appellants

Versus

Ranjit Kaur & others .Respondents

INDEX

S.No Particulars Dated Pages Court

fee
A. Urgent form 20.06.2017 00
B. Court fee 20.06.2017 00
01. Application for condonation of delay 20.06.2017 1-2
02. Affidavit in support 20.06.2017 3-4
03. Application for exemption and 20.06.2017 5-6
placing on record
04. Affidavit in support 20.06.2017 7-8
05. Application for staying the operation 20.06.2017 9-10
of impugned Judgment.
06. Affidavit in support 20.06.2017 11-12
07. Ground of appeal 20.06.2017 13-24
08. Affidavit in support 20.06.2017 25-26
09. Memo of parties 20.06.2017 27
10. Copy of Judgment & Decree of Civil 15.12.2014 28-39
Judge (Jr. Divn.) Patiala.
11. Ground of appeal 02.02.2015 40-46
12. Copy of Judgment & Decree of 27.01.2017 47-65
Additional District Judge, Patiala.
13. Annexure A-1 (Copy of Affidavit and 09.01.2014
statement of PW-1 Nirmal Singh)
14. Annexure A-2 (copies of the bank 10.09.2014
account statement)
15. Annexure A-3 (application) 30.10.2006
16. Annexure A-4 (affidavit) 30.10.2006
17. Annexure A-5 (Statement of PW-3) 19.11.2014
18. Annexure A-6 (Statement of DW-1) 05.12.2014
19. Power of attorney 20.06.2017
20. Certified copy of Judgment & Decree 15.12.2014
of Civil Judge (Sr. Divn.) Karnal.
21. Certified copy of Ground of appeal 02.02.2015
22 Certified copy of Judgment & Decree 27.01.2017
of Additional District Judge, Karnal.
23 Vernacular of Annexure A-1 09.01.2014
24 Vernacular of Annexure A-3 30.10.2006
25 Vernacular of Annexure A-4 30.10.2006
Note : No caveat has been received by the appellants.

Chandigarh (Karan Garg) (Teevar Sharma )

P-2568/2010 P-2568/2010

Dated: 20.06.2017 (Abhishek Vig)

P-951/2008
Advocates
Counsel for the Appellants
 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA

AT CHANDIGARH.

Civil Misc. No._______________of 2017

IN RSA No.___________________of 2017

Gurinder Singh & others ...Appellants

Versus

Ranjit Kaur & others .Respondents

Application under Section 5 of the

Limitation Act to condone the delay of

.days in filing this regular Second

Appeal, in the interest of justice.

Respectfully Showeth :-

1. That the applicants/appellants are filing the Second Appeal in this

Honble court, which is likely to succeed on merits on the basis of

grounds taken in the Second Appeal.

2. That the applicants/appellants are illiterate persons and was not

having any knowledge regarding challenging the judgment & decree

dated 27.01.2017 passed by the Additional District judge, Patiala by

filing an appeal before this Honble court. On 05.06.2017 the

applicants/appellants with their relatives approached the counsel

undersigned for seeking consultation in some other matter, however

they also discussed regarding the judgment dated 27.01.2017 passed

by the District judge Patiala, upon which the counsel undersigned told
 them that they can challenge the above Judgment/decree by filing an

appeal before Honble High court. Thereafter the applicants/appellants

approached undersigned counsel on 08.06.17 with the documents for

filing the present appeal. Thereafter the present regular Second appeal

was drafted and is being filed without any further delay. However, due

to the circumstances/reasons mentioned above delay of . days

has occurred in filing the appeal, which is neither intentional nor

deliberate but due to the circumstances mentioned above.

3. That the appellants/applicants have very good case on merits and

balance of convenience also lies in favour of applicants/appellants.

4. That in case the delay of days in filing the present appeal is

not condoned the applicants/appellants will suffer irreparable loss and

injury which cannot be compensated in any manner.

Prayer :-

It is therefore respectfully prayed that the application may kindly be

allowed and the delay of days in filing the present Regular Second

appeal, may kindly be condoned in the interest of justice.

Note: Affidavit in support is attached.

Chandigarh (Karan Garg) (Teevar Sharma )

P-2568/2010 P-2568/2010

Dated: 20.06.2017 (Abhishek Vig)

P-951/2008
Advocates
Counsel for the Appellants
 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA

AT CHANDIGARH.

Civil Misc. No._______________of 2017

IN RSA No.___________________of 2017

Gurinder Singh & others ...Appellants

Versus

Ranjit Kaur & others .Respondents

Affidavit of Gurinder Singh son of Ranjit Singh

age..Resident of Village Ucha Gaon, Tehsil &

district Patiala.

I, the above named deponent do hereby solemnly affirm and declare as

under :-
1. That the applicants/appellants are filing the Second Appeal in this

Honble court, which is likely to succeed on merits on the basis of

grounds taken in the Second Appeal.

2. That the applicants/appellants are illiterate persons and was not

having any knowledge regarding challenging the judgment & decree

dated 27.01.2017 passed by the Additional District judge, Patiala by

filing an appeal before this Honble court. On 05.06.2017 the

applicants/appellants with their relatives approached the counsel

undersigned for seeking consultation in some other matter, however

they also discussed regarding the judgment dated 27.01.2017 passed

by the District judge Patiala, upon which the counsel undersigned told

them that they can challenge the above Judgment/decree by filing an

 appeal before Honble High court. Thereafter the applicants/appellants

approached undersigned counsel on 08.06.17 with the documents for

filing the present appeal. Thereafter the present regular Second appeal

was drafted and is being filed without any further delay. However, due

to the circumstances/reasons mentioned above delay of . days

has occurred in filing the appeal, which is neither intentional nor

deliberate but due to the circumstances mentioned above.

3. That the appellants/applicants have very good case on merits and

balance of convenience also lies in favour of applicants/appellants.

4. That in case the delay of days in filing the present appeal is

not condoned the applicants/appellants will suffer irreparable loss and

injury which cannot be compensated in any manner

Place: Chandigarh

Dated: 20.06.2017 Deponent

VERIFICATION

Verified that the contents of my above affidavit in Para no. 1 to 4

are true and correct to my knowledge. No part of it is false and nothing

material has been concealed there from.

Place: Chandigarh

Dated: 20.06.2017 Dep

 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA

AT CHANDIGARH.

Civil Misc. No._______________of 2017

IN

RSA No.___________________of 2017

Gurinder Singh & others ...Appellants

Versus

Ranjit Kaur & others .Respondents

Application under section 151 of the Code of Civil

Procedure for exemption from filing the certified

copies Annexure A-1 to A-6 and for placing on

record the same, in the interest of justice.

RESPECTFULLY SHOWETH:

1. That the appellants/applicants is filing the accompanying Judgment

and Decree dated 27.01.2017 passed by Additional District Judge,

Patiala and on the strength of the grounds taken therein, the

appellant/applicant is sanguine about its acceptance.

2. That the appellants/applicants has filed true typed copy of Annexure

A-1 to A-6, as the certified copies thereof are not readily available

and any initiative to procure the same at this stage, would

unnecessarily delay the filing of the appeal in this Honble Court.

 3. That the Annexure A-1 to A-6, are very necessary to be placed on

record to resolve the controversy involved in the present case.

PRAYER:

It is, therefore, respectfully prayed that the application may kindly

be allowed and this Honble Court may kindly be pleased to dispense with

the requirement of filing certified copies of Annexure A-1 to A-6 and the

same be allowed to be placed on record, in the interest of justice.

Note: Affidavit is attached

Chandigarh (Karan Garg) (Teevar Sharma )

P-2568/2010 P-2568/2010

Dated: 20.06.2017 (Abhishek Vig)

P-951/2008
Advocates
Counsel for the Appellants
 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA

AT CHANDIGARH.

Civil Misc. No._______________of 2017

IN

RSA No.___________________of 2017

Gurinder Singh & others ...Appellants

Versus

Ranjit Kaur & others .Respondents

Affidavit of Gurinder Singh son of Ranjit

Singh age..Resident of Village Ucha Gaon,

Tehsil & district Patiala.

I, the above named deponent do hereby solemnly affirm and declare

as under :-

1. That the appellants/applicants is filing the accompanying Judgment

and Decree dated 27.01.2017 passed by Additional District Judge,

Patiala and on the strength of the grounds taken therein, the

appellant/applicant is sanguine about its acceptance.

2. That the appellants/applicants has filed true typed copy of Annexure

A-1 to A-6, as the certified copies thereof are not readily available

and any initiative to procure the same at this stage, would

unnecessarily delay the filing of the appeal in this Honble Court.

 3. That the Annexure A-1 to A-6, are very necessary to be placed on

record to resolve the controversy involved in the present case.

Place: Chandigarh

Dated: 20.06.2017 Deponent

VERIFICATION

Verified that the contents of my above affidavit in para no. 1 to 3

are true and correct to the best of my knowledge. No part of it is false and

nothing material has been concealed there from.

Place: Chandigarh

Dated: 20.06.2017 Deponent

 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA

AT CHANDIGARH.

Civil Misc. No._______________of 2017

IN

RSA No.___________________of 2017

Gurinder Singh & others ...Appellants

Versus

Ranjit Kaur & others .Respondents

Application under Order 41 Rule 5 read with

section 151 of the Code of Civil Procedure for

staying the operation of Judgment and Decree

dated 27.01.2017 passed by Additional District

Judge, Patiala, during the pendency of the

regular second appeal, in the interest of justice.

RESPECTFULLY SHOWETH:

1. That the appellants/applicants is filing the accompanying Judgment

and Decree dated 27.01.2017 passed by Additional District Judge,

Patiala and on the strength of the grounds taken therein, the

appellants/applicants is sanguine about its acceptance.

2. That the grounds of appeal may be read as part of this application

for stay.

3. That the appellants/applicants have a prima facie good case and

balance of convenience is also in his favour.

 4. That in case the operations of Judgment and Decree dated

27.01.2017 passed by Additional District Judge, Patiala, are not

stayed, the appellants/applicants would suffer an irreparable loss

and substantial injury.

PRAYER:

It is, therefore, respectfully prayed that the application may kindly

be allowed and operations of impugned Judgment and Decree dated

24.01.2017 passed by Additional District Judge, Patiala, may kindly be

stayed, during the pendency of the appeal, in the interest of justice,

equity and fair play.

Note: Affidavit is attached in support.

Chandigarh (Karan Garg) (Teevar Sharma)

P-2568/2010 P-2568/2010

Dated: 20.06.2017 (Abhishek Vig)

P-951/2008
Advocates
Counsel for the Appellants
 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA

AT CHANDIGARH.

Civil Misc. No._______________of 2017

IN

RSA No.___________________of 2017

Gurinder Singh & others ...Appellants

Versus

Ranjit Kaur & others .Respondents

Affidavit of Gurinder Singh son of Ranjit

Singh age..Resident of Village Ucha Gaon,

Tehsil & district Patiala.

.
I, the above named deponent do hereby solemnly affirm and declare
as under :-

1. That the appellants/applicants is filing the accompanying Judgment

and Decree dated 27.01.2017 passed by Additional District Judge,

Patiala and on the strength of the grounds taken therein, the

appellants/applicants is sanguine about its acceptance.

2. That the grounds of appeal may be read as part of this application

for stay.

3. That the appellants/applicants have a prima facie good case and

balance of convenience is also in his favour.

That in case the operations of Judgment and Decree dated 27.01.2017

passed by Additional District Judge, Patiala, are not stayed, the

 appellants/applicants would suffer an irreparable loss and substantial

injury.

Place: Chandigarh

Dated: 04.07.2017 Deponent

VERIFICATION

Verified that the contents of my above affidavit from Para No.1 to 4

are true and correct to the best of my knowledge. No part of it is false and

nothing material has been concealed there from.

Place: Chandigarh

Dated: 04.07.2017 Deponent

 GROUNDS OF APPEAL

1. That the Judgment and Decree dated 27.01.2017 passed by

Additional District Judge, Patiala vide which the well reasoned

judgment and decree dated 15.12.2014 passed by the Ld. Civil

Judge, Jr. Division, Patiala, has been reversed, is wrong, illegal and

is not sustainable in the eyes of Law. The copies of the Judgment

and Decree dated 27.01.2017 passed by Additional District Judge,

Patiala and Judgment and decree dated 15.12.2014 passed by the

Ld. Civil Judge, Jr. Division, Patiala and grounds of appeal filed

before the Ld. Lower Appellate Court dated 02.02.2015, are

attached herewith.

2. That the judgment and decree passed by Ld. Lower Appellate court,

whereby the suit for specific performance of the agreement and

permanent injunction filed by the plaintiff/respondent has been

partly decreed is wrong, illegal and based upon mis-reading and non

appreciation of evidence led by the parties besides being perverse.

In fact, the suit for suit for specific performance of the agreement

and permanent injunction filed by the plaintiff/respondent ought to

have been dismissed.

3. The brief facts as per the case of the Respondent/plaintiff are that

the appellants/defendants No.1 and 2 entered into an agreement

dated 28.2.2006 for the sale of the suit land and they had agreed to

sell the above said land to the Respondent/plaintiff alongwith all

rights of the ownership and the Respondents/plaintiff agreed to

purchase the above noted land. That Rs.5,50,000/- was paid by the
 Respondent/plaintiff to the appellants/defendants No.1 and 2 as

earnest money at the time of execution of the above said agreement

to sell dated 28.2.2006 in the presence of the marginal witnesses

Nazar Singh, Saudagar Khan and Balkar Singh. That the sale deed

was to be executed on 30.10.2006. It was also agreed between the

parties that if the appellants/defendants No.1 and 2 failed to get the

sale deed executed, then the appellants/defendants No.1 and 2 will

be bound to return the double the amount of earnest money i.e.

Rs.11,00,000/- and in case the plaintiff/Respondents failed to get

sale deed executed then his earnest money will stand forfeited and

the agreement will be cancelled. That on 30.10.2006 the

Respondent/plaintiff alongwith the balance sale consideration was

present in the office of Sub Registrar and kept on waiting for

appellants/defendants No.1 & 2. The Respondents/plaintiff had

marked his presence before the Sub Registrar and is still ready and

willing to perform his part of the agreement. That thereafter, the

suit land was further sold by appellants/defendants No.1 & 2 to

Performa Respondent/defendant No.3 Kuldev Kaur against terms

and conditions of the agreement to sell dated 28.2.2006. That the

appellants/defendants No.1 & 2 had never come to the office of Sub

Registrar for marking their presence. Hence, the present suit

4. Upon notice, the appellants/defendants appeared and the

appellants/defendants filed the written statement while taking

preliminary objections of maintainability; cause of action;

infructuous; false, frivolous and vexatious; clean hands; hopelessly

time barred; and bad for misjoinder of necessary party. On merits,

the execution of the agreement to sell was admitted by the

 appellants/defendants No.1 & 2. But it was averred by the

appellants/defendants that the plaintiff alongwith balance sale

consideration had not come present on 30.10.2006 and kept on

waiting for the appellants/defendants. That the defendants went to

the office of Sub Registrar Patiala on 30.10.2006 and waited for the

Respondents/plaintiff but he did not turn up. Thereafter the

appellants/defendants had marked their presence before the Office

of Sub Registrar, Patiala. It was denied that the Respondent/plaintiff

was ready and willing to perform his part of the agreement. It was

averred that after 30.10.2006, the date fixed for execution of the

sale deed, the appellants/defendants had approached to the plaintiff

to get the sale deed executed in his favour and to pay the balance

sale consideration, but each time the Respondent/plaintiff has

showed his inability and after waiting for one year the

appellants/defendants had alienated the suit land to Kuldev Kaur

vide sale deed dated 25.4.2007 and also handed over the

possession to the Performa Respondent No.3/defendant No.3.

Vehemently denying all other averments made in the plaint, a prayer

for its dismissal is made out. The replication was filed, wherein the

averments of the written statement were denied and that of the

plaint were reiterated.

5. From the pleadings of the parties, following issues were framed: -
i. Whether the plaintiff is entitled for specific performance of the

agreement to sell dated 28.2.2006 executed by the

defendants No.1 and 2 in favour of plaintiff regarding the suit

land as detailed in head-note of plaint? OPP

ii. Whether plaintiff is entitled for permanent injunction as

prayed for? OPP

 iii. Whether suit of plaintiff is not maintainable in the present

form? OPD
iv. Whether suit (plaintiff) has no cause of action to file the

present suit? OPD (words 'plaintiff ' be read instead of words

'suit')
v. Whether plaintiff has not come to the court with clean hands?

OPD
vi. Whether suit of plaintiff is bad for misjoinder of necessary

party? OPD
vii.Relief.
2. That to prove his case the plaintiff/Respondent himself stepped in

the witnesses box as PW1 and also examined PW2, the Balkar Singh

marginal witness of the agreement to sell dated 28.2.2006, PW3

Kesar Singh, Clerk of Sub Registrar, Patiala. The plaintiff also relied

upon the agreement to sell dated 28.2.2006 Ex.P1, application and

affidavit for marking presence Ex.P2 & Ex.P3 respectively, photocopy

of entry of register Ex.P4, photo state copy of sale deed dated

27.9.2005 Mark-A. During cross-examination of plaintiff and his

witnesses, the defendant put to him documents that is copy of

agreement to sell dated 27.9.2005 as Ex.D1, copy of statement of

accounts as Ex.D2, photocopy of entry register No.1332 Ex.D3The

defendants examined Gurinder Singh, defendant No.1 as DW1, Jit

Singh Nambdardar as DW2. The defendants also relied upon Ex.D4

being application and Ex.D5 being the affidavit for marking

presence, Jamabandi for the year 2004-05 as Ex.D6, copy of sale

deed dated 5.7.2007 Mark-DX, copy of sale deed dated 23.5.2007

Mark- DZ and copy of sale deed dated 25.4.2007 Mark-DZ.

3. That the Ld. Trial court vide well reasoned judgment and decree

dated 15.12.2014, dismissed the suit filed by the

 Respondent/plaintiff, however the Ld. Lower Appellate Court

wrongly and illegally decreed the suit filed by the

Respondent/plaintiff on 27.01.2017. It is pertinent to mention here

that the Ld. Lower Appellate Court, judgment and decree dated

27.01.2017, have decided the appeal against the Judgment &

Decree dated 15.12.2014 which was dismissed by the Ld. Trial

court.

4. That finding recorded by the Ld. Lower Appellate court that the

appellants/defendant nos. 1 & 2 have since executed sale deed in

favour of the Performa Respondent/defendant no. 3 and by

necessary implication, the agreement has become frustrated and

thus voidable at the option of the plaintiff, is wrong, illegal and

perverse, because the Ld. Lower Appellant court failed to consider

the fact that on the day of execution of sale deed, the

respondent/plaintiff was not ready with the balance sale

consideration and the appellants/respondents sold the suit land after

1 year from the date of execution, even then the

Respondent/plaintiff failed to approach the appellant/defendants to

do the registry in favour of Respondent/plaintiff only with the

purpose to take his earnest money back from the appellants.

Therefore, the above finding recorded by the Ld. Lower Appellate

court, is illegal and perverse and liable to set aside.

5. That the Ld. Lower Appellate court while deciding the appeal

ignoring the facts that the Respondents/plaintiff was not ready and

willing to perform the contract on the date of execution of sale

deed. It is pertinent to mention here that the Ld. Lower Appellate

court did not record any finding with regard to the financial

incapability of the Respondent/plaintiff regarding to perform the

contract whereas the Ld. Trial court specifically observed that,

After appraisal of the oral as well as documentary evidence

on record, I am of the considered view that the burden is

upon the plaintiff to prove that on the date of execution of

the sale deed dated 30.10.2006 he was in a capacity to pay

the balance sale consideration of the alleged agreement to

sell but the statement of accounts of the Corporation Bank

Leela Bhawan Branch Ex.D2 clearly shows that in the

account of the plaintiff since 1.2.2006 to 1.8.2007 there was

not sufficient amount through which he can execute the

sale deed in his favour by the defendants. So, I am of the

view that the capacity of the plaintiff to pay the balance

sale consideration of Rs.50 Lakhs also comes under scanner

as the document/ evidence is not endorsing his views.

Furthermore, he deposed that he has taken Rs.30 Lakhs

from his cousin Harbhajan Singh but Harbhajan Singh did

not step into witness box to endorse the version of the

plaintiff that he had taken Rs.30 Lakhs from him for

execution of the sale deed. As the plaintiff himself deposed

that he has income of Rs.2 Lakhs from his land, it is beyond

imagination that how he would have accumulated the

balance sale consideration of Rs.50 Lakhs. So, I do not

concur with the views of the plaintiff's counsel that he was

in a sound financial capacity to get execute the sale deed

 from the defendants. Furthermore the Ld. Trial Court also

observed that, So, this version of the plaintiff that he was

ready and willing on the date of registration of the sale

deed, does not find favour and his story seems to be highly

unreliable and untrustworthy as he had not produced on

record any document which could show that he was in a

position to execute the sale deed in his favour. Meaning

thereby that the Ld. Lower Appellate court failed to appreciate the

evidence on record regarding the readiness and willingness to

perform the agreement to sell and the judgment & decree dated

27.01.2017 is liable to be set aside.

6. That it is also relevant to mention here that the Respondent/plaintiff

has not the financial capacity to perform the agreement to sell

because in his cross examination the Respondent/Plaintiff state that,

he has only 5 killa land at longowal and he get Rs. 2/- lac per

annum from the contract of these land and he has no other source

of income. It is also pertinent to mention here that from the date of

agreement to sell till the date of execution of sale deed, there was

no sufficient fund in the bank account of Respondent/plaintiff. It is

also admitted in his cross examination that, it is correct that

from 01.08.2006 to 1.2.2007 the total amount in my

account is Rs. 2795/-. Under Section 16(c) of the Specific Relief

Act the continuous readiness and willingness on the part of the

plaintiff is a condition precedent for the grant of the relief of specific

performance. The Supreme Court in various judgments has held that

the amount of consideration which has to be paid by the plaintiff to

 the defendant must of necessity be proved to be available, right

from the date of the execution till date of the decree and he must

prove that he is ready and has always been willing to perform his

part of the contract. Meaning thereby that in view of the above

evidence given by PW-1 the above finding of the Ld. Lower

Appellate court, is illegal and perverse. The copies of the

Statement of Respondent/Plaintiff Pw-1 and account

statement are attached herewith as Annexure A-1 and A-2.

7. That It is pertinent to mention here that the factum of readiness and

willingness to perform the plaintiff's part of the contract is to be

adjudged with reference to the conduct of the party and the

attending circumstances. The Supreme Court in various judgments

has held that the facts of the case demonstrated that the plaintiff

was not ready nor had the capacity to perform his part of the

contract due to his financial incapacity to pay the consideration as

contracted and intended to bide for the time which would disentitle

him to claim the relief. In the present case also the Ld. Lower

Appellate court failed to consider the conduct of the

Respondent/plaintiff because the respondent .plaintiff stated that he

borrowed Rs. 30 lakhs from his cousin Harbhajan Singh for

execution the sale deed but Harbhajan Singh did not step into

witness box to endorse the version of the plaintiff and it is also

admitted by the plaintiff that his income was 2 lakhs annum, then it

is beyond imagination that how he would have accumulated the

balance sale consideration of Rs. 50 lakhs.

8. That it is the settled Law that a person who does not approach the

Court with clean hands, is not entitled to any relief whatsoever and

he can be non suited summarily at any stage of the case. whereas

the Respondent/Plaintiff claimed in his plaint that it is pertinent to

mention here that it is the specific stand of the Respondent/plaintiff

that Respondent/plaintiff visited the defendants so many times and

also requested the appellants/defendants to get the sale deed

executed and registered in his favour whereas in the cross

examination of plaintiff i.e. PW-1 admitted that neither the

Respondent/Plaintiff met with the appellants/defendants nor he

asked the defendants for registry from the date of execution of sale

deed till date of the filing of present suit. Moreover it is also

admitted by the Respondent/Plaintiff that before filing of the present

suit he came to know that the appellant had sold the suit property

to Respondent no. 3 then even after selling of the land by appellants

to Performa Respondent 3, he had not sent any legal notice to the

appellants. Meaning thereby that the Respondent/plaintiff filed a suit

only to take his earnest money back, the respondent was not willing

and ready to perform the contract.

9. That the Ld. Lower Appellate court while deciding the appeal

ignoring the facts that the Respondents/plaintiff filed a suit for

specific performance after the delay of around 3 years from the date

of accruing of cause of action in his favour. It is settle law that it is

incumbent upon the plaintiff both to aver and prove that he had all

along been ready and willing to perform the essential terms of

contract which were required to be performed by him. In the case,

 the plaintiff filed the suit almost after a period of 3 years from the

date of execution of sale deed and the plaintiff did not bring in any

material to show that he had ever asked the owner of the property

to execute sale deed and he filed the suit only after he came to

know that the suit land had already been sold in favour of a third

party. Here also, the plaintiff has not established that he had always

been ready and willing to perform the terms of the contract.

Meaning thereby that the judgment & decree dated 27.01.2017 is

liable to be set aside.

10. That the Ld. Lower Appellate court failed to consider that the

Respondents/Plaintiff was not present before the sub-Registrar

Patiala on the date of execution of sale deed and it is also pertinent

to mention here that there was no date mentioned in the application

& Affidavit i.e. Ex P-2 & Ex P-3 moved by the Respondent/plaintiff

for marked his presence before sub-Registrar, Patiala. It is admitted

by the PW-3 in his cross examination that, it is correct that on

the EX P-3 there is no date mention under number 1321. It is

also correct that no date, month, year has been mentioned under

the signature of attesting authority Executive Magistrate, Patiala.

The copies of the application, affidavit and statement of

PW-3 are attached as Annexure A-3, A-4 & A-5 respectively.

11. That the Ld. Lower Appellate court failed to consider the

evidence on record that, the counsel for the Respondent/plaintiff

crossed examined the appellants/ respondents on material point and

counsel for the Respondent/plaintiff has not been put any

suggestion from the appellant/defendant in cross examination

 regarding whether plaintiff was ready and willing to perform his part

of agreement on 30.10.2006 and that he had also capacity to pay

the balance sale consideration of agreement to sell dated

28.02.2006. it is settled that when there is no cross-examination on

some vital points by the opposite party then those facts are deemed

to be admitted by the party. Meaning thereby that the Respondent

admitted that he is not ready with the sale consideration on the date

of execution of sale. A copy of the statement of DW-1 is

attached herewith as Annexure A-6.

12. That the judgments and authorities relied upon by the Ld.

Counsel for the appellants have not been properly appreciated by

the Ld. Lower Appellate court and thus has caused serious prejudice

to the appellant.

13. That following are the substantial question of law which arises

in this Regular Second Appeal for the kind consideration of this

Honble Court.

i) Whether in the given facts and circumstances of the case,

findings recorded Ld. Lower Appellate court, in decreeing the

suit of the plaintiff, are wrong and illegal beside being

perverse ?

ii) Whether in the given facts and circumstances of the case, the

judgment and decree passed by the Ld. Lower Appellate court

is the result of misreading and mis-construing the oral and

documentary evidence lead by the parties ?

iii) Whether the plaintiff has willing or ready to perform the

contract?
 iv) Whether Ld Lower Appellate court, has drawn the

unwarranted inferences on the facts and law?

v) Whether the grave & manifest injustice has been caused to

the appellants?

14. That no such and similar appeal has earlier been filed by the

appellants against the Judgment and Decree dated 27.01.2017

passed by Additional District Judge, Patiala, before this Honble court

or before Honble Apex court.

Prayer:

It is, therefore, most respectfully prayed that the present Regular

Second Appeal may kindly be allowed and the Judgment and Decree dated

27.01.2017 passed by Additional District Judge, Patiala, may kindly be set

aside and the suit of the Respondent/plaintiff may please be dismissed

with costs, in the interest of justice.

Chandigarh (Karan Garg) (Teevar Sharma )

P-2568/2010 P-2568/2010
Dated: 20.06.2017 (Abhishek Vig)
P-951/2008
Advocates
Counsel for the Appellants
IN THE HONBLE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA
AT CHANDIGARH
.

In Regular Second Appeal _______2017

MEMO OF PARTIES

1. Gurinder Singh son of Ranjit Singh age

2. Ravinder Singh son of Ranjit Singh age..both are resident of

Village Ucha Gaon Tehsil & district Patiala.

 Defendants/Appellants
Versus

1. Ranjit Kaur
2. Gursharan Kaur
3. Gurpartap Singh all are resident of Village Rajinder Nagar, Tehsil

and district Fatehgarh Sahib.

.Plaintiffs/Respondents
4. Kuldev kaur wife of Kirpal Singh resident of Dhuri, District Sangrur
..Performa Respondent/defendants

Chandigarh (Karan Garg) (Teevar Sharma )

P-2568/2010 P-2568/2010

Dated: 20.06.2017 (Abhishek Vig)

P-951/2008
Advocates
Counsel for the Appellants
 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT

CHANDIGARH.

..

Civil Misc. No._______________of 2017

IN

RSA No.___________________of 2017

Gurinder Singh & others ...Appellants

Versus

Ranjit Kaur & others .Respondents

Affidavit of Gurinder Singh son of Ranjit Singh

age..Resident of Village Ucha Gaon Tehsil &

district Patiala.

I, the above named deponent do hereby solemnly affirm and declare

as under :-

1. That the appellant/applicant is filing the accompanying Judgment

and Decree dated 27.01.2017 passed by Additional District Judge,

Patiala and on the strength of the grounds taken therein, the

appellant/applicant is sanguine about its acceptance.

2. That the grounds of appeal may be read as part of this affidavit and

has not been reproduced for the sake of brevity.

 3. That no such or similar appeal has earlier been filed by the appellant

before this Honble court or before the Honble Supreme court of

India.

Place: Chandigarh

Dated: 04.07.2017 Deponent

VERIFICATION

Verified that the contents of my above affidavit from Para No.1 to 3

are true and correct to the best of my knowledge. No part of it is false and

nothing material has been concealed therefore.

Place: Chandigarh

Dated: 04.07.2017 Deponent