Uttarakhand High Court
SA/171/2013 of Diwan Chand Vs Rajender Singh on 30 December 2013
COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 171 of 2013 Diwan Chand … Appellant Vs Rajendra Singh … Respondent Mr. Dharmendra Barthwal, Advocate, present for the appellant Mr. Neeraj Garg, Advocate, present for the respondent Hon’ble Sudhanshu Dhulia, J. (Oral) 1. The
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 171 of 2013
Diwan Chand
… Appellant
Vs
Rajendra Singh … Respondent
Mr. Dharmendra Barthwal, Advocate, present for the appellant Mr. Neeraj Garg, Advocate, present for the respondent Hon’ble Sudhanshu Dhulia, J. (Oral)
Citations and Judicial Treatment
Cited by
0
Decisions in the index citing it
Cites
0
Decisions referred to
In this index
0
Of the decisions it cites
Overruled / Questioned
0
No negative treatment found
Loading the citing and cited decisions…
This judgment in the centre: on the left the decisions it cites, on the right the decisions citing it. Colour is the treatment; choose a decision to open it.
1. The respondent/plaintiff had filed a suit for specific performance on the basis of the fact that an agreement of sale was executed between the plaintiff and the defendant on 14.12.1992. As per the agreement itself, the sale deed was to be executed within one year i.e. by 13.12.1993. The total amount was `1,05,000/- for the immovable property, out of which `1,00,000/- was given for the agreement of sale and the remaining `5,000/- was to be given at the time of execution of the sale deed. The time, which was for one year, was extended once on 13.12.1993 to 21.12.1993 and thereafter on 21.12.1993 to 05.02.1994 and again on 05.02.1994 to 11.04.1994. The plaintiff/respondent went for the execution of the sale deed, but defendant never turned up. He gave the remaining money to the defendant, however, he refused to get the sale deed executed in his favour. Hence, the suit for specific performance was filed. The trial court while deciding the matter has held that the plaintiff was always ready and willing to fulfill his part of contract, but the delay and the default has been done on the part of the defendant. Moreover, time is not the essence of the contract for the reason that both the parties were extending the time with mutual consent. Therefore, the suit was decreed and the judgment of the lower court has been confirmed by the lower appellate court.
2. Now the appellant has filed the present second appeal wherein he has framed several questions of law, but he has relied primarily on two substantial question of law, which reads as follows:-
1. Whether the trial court and the lower appellate court have erred in law as well as on fact on coming to the conclusion that time was not an essence in the contract?court have erred in law as well as on fact on coming to the conclusion that time was not an essence in the contract?
2. Whether the registered agreement can be altered on a mere endorsement of the two parties or whether it can be done way of registered agreement? on a mere endorsement of the two parties or whether it can be done way of registered agreement?
3. A clear finding has been given by the trial court as well as by the appellate court on these points. As far as the fact that the time is not an essence is absolutely clear not only from the agreement of the contract but also from the conduct of the parties. As far as change of the condition i.e. extension of time is concerned it would not amount to change in condition as already held by the trial court as it is merely an extension of time.
4. Learned counsel for the respondent/plaintiff also submits that no question of law, much less any substantial question of law is made out in the present case. This Court is also of the view that no question of law, for consideration of this Court arises in the present second appeal.
5. Accordingly, the second appeal is dismissed in-limine.
30.12.2013 Aswal
(Sudhanshu Dhulia, J.)