RSA-5853-2019(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-5853-2019(O&M) Date of decision: 25.09.2025 Sumitra … Appellant Versus Har Chand and another … Respondents CORAM: HON’BLE MR. JUSTICE VIKRAM AGGARWAL Present: Mr. Rohit Mittal, Advocate, for the appellant. *** VIKRAM AGGARWAL, J. (ORAL) CM-1641-C of 2025 Prayer in the present application preferred under Section of 151 CPC is for placing on record additional affidavit of the applicant-appellant. Heard. For the reasons mentioned in the application, the same is allowed subject to all just exceptions. Affidavit is taken on record. CM-16789-C of 2019 This is an application under Section 5 of the Limitation Act, 1963, seeking condonation of delay of 119 days in filing the appeal. Heard. The reasons caused for delay of 119 days in filing the appeal have been found satisfactorily explained, as an additional affidavit has been filed on behalf of applicant-appellant in support of the application. RAJAN KUMAR 2025.09.29 17:38 I am approving this document RSA-5853-2019(O&M) 2 Accordingly, the application is allowed and the delay of 119 days in filing the appeal is condoned. RSA-5853-2019(O&M) The present appeal is directed against the judgment and decree dated 16.02.2019 passed by the Court of Additional District Judge, Narnaul, partly allowing the appeal against the judgment and decree dated 13.02.2015 passed by the Court of Civil Judge (Jr. Divn.), Narnaul. Whereas, the trial Court had decreed the suit for possession by way of specific performance, the first appellate Court modified the said decree and ordered refund of earnest money of Rs.65,000/- along with interest @ 7% per annum w.e.f. 01.01.2008 till realization. 2. The plaintiffs (Sumitra and Maya Devi) instituted a suit for specific performance of an agreement to sell dated 25.05.2007 stated to have been executed between the parties qua land measuring 300 sq. yards (fully described in the plaint), situated at Narnaul. The total sale consideration was fixed at Rs.3,90,000/-. Rs.25,000/- was stated to have been paid as earnest money. The sale deed was to be executed on 30.08.2007, when the balance sale consideration was to be paid. On 27.08.2007, the date of execution of the sale deed was extended to 30.12.2007 and an additional sum of Rs.40,000/- was paid as earnest money. 2.1 It was claimed that the plaintiffs were always ready and willing to perform their part of the contract. As 30.12.2007, which was the date fixed for execution of the sale deed, was a Government holiday, the plaintiffs appeared before the Sub Registrar on 31.12.2007 along with the balance sale consideration, but the defendant did not appear. Presence was RAJAN KUMAR 2025.09.29 17:38 I am approving this document RSA-5853-2019(O&M) 3 marked. A legal notice was issued calling upon the defendant to appear before the Sub Registrar on 23.06.2010, but the defendant did not appear. Under the circumstances, the suit was instituted. 3. The defendant contested the suit. In the written statement, certain preliminary objections as regards maintainability, estoppel, cause of action, locus standi etc. were raised. On merits, the execution of the agreement to sell was denied. Receipt of earnest money was also denied. Extension of time by way of supplementary evidence and the receipt of a further amount of Rs.40,000/- was also denied. 4. From the pleading of the parties, the following issues were framed:- “(1) Whether defendant entered into agreement to sell dated 25.05.2007 in favour of the plaintiff with regard to the suit land as described in the head note of the plaint and received Rs.65,000/- as earnest money as alleged in the plaint?OPP (2) Whether the plaintiff is/was ready and willing to perform his part of contract as alleged?opp (3) If issue No.1 and 2 not proved, in alternative relief, whether plaintiff is entitled to recover Rs.65,000/- alongwith compensation alongwith interest @ 2% per month as alleged?OPP (4) Whether the present suit is not maintainable?OPD (5) Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD (6) Whether the plaintiff has no cause of action and locus standi to file the present suit?OPD RAJAN KUMAR 2025.09.29 17:38 I am approving this document RSA-5853-2019(O&M) 4 (7) Whether the plaintiff has concealed the true and material facts from the court if so to what effect?OPD (8) Whether defendant is entitled to special cost u/s 35A CPC?OPD (9) Relief.” 5. Parties led their respective evidence. 6. The trial Court decreed the suit filed by the appellant/plaintiffs vide judgment and decree dated 13.02.2015. However, in appeal, the first appellate Court modified the decree and ordered refund of the earnest money along with interest @ 7% per annum, leading to the filing of the instant appeal. 7. I have heard learned counsel for the appellant. 8. As regards the scope of second appeal, it is now a settled proposition of law that in Punjab and Haryana, second appeals preferred are to be treated as appeals under Section 41 of the Punjab Courts Act, 1918 and not under Section 100 CPC. Reference in this regard can be made to the judgment of the Supreme Court in the case of Pankajakshi (Dead) through LRs and others V/s Chandrika and others, (2016)6 SCC 157, followed by the judgments in the case of Kirodi (since deceased) through his LR V/s Ram Parkash and others, (2019) 11 SCC 317 and Satender and others V/s Saroj and others, 2022(12) Scale 92. Relying upon the law laid down in the aforesaid judgments, no question of law is required to be framed. 9. Learned counsel for the appellant submits that the first appellate Court erred in modifying the well-reasoned judgment passed by the trial Court. He submits that the first appellate Court wrongly held that since the RAJAN KUMAR 2025.09.29 17:38 I am approving this document RSA-5853-2019(O&M) 5 suit had been filed at the fag end of the limitation period, it stood proved that the plaintiffs were not ready and willing to perform their part of the contract. He further submits that the legislature has provided a limitation period, and if a suit is instituted within the said limitation period, it cannot be said that since it had not been filed at the very beginning, the plaintiffs did not deserve to be granted the required relief. 9.1 Learned counsel further submits that the plaintiffs had duly proved that they had always been ready and willing to perform their part of the contract by appearing before the Sub Registrar on 31.12.2007 with the balance sale consideration. Learned counsel submits that in fact it was the defendant, who did not appear, thereby proving that he was not ready and willing to perform his part of the contract. 10. I have considered the submissions made by learned counsel for the appellant. 11. Both Courts concurrently found that agreement to sell dated 25.05.2007 (Ex.PW2/A) had validly been executed. It was also found that the date of registration of the sale deed was extended from 27.08.2007 to 30.12.2007. It was concurrently found that the total amount of Rs.65,000/- had been paid as earnest money [Rs.25,000/- at the time of execution of the agreement to sell and Rs.40,000/- at the time of extension of time]. 12. The only grievance of the appellant/plaintiffs is that the decree of specific performance granted by the trial Court should not have been modified by the first appellate Court to that of refund of earnest money. In the considered opinion of this Court, there is no merit in this contention and no illegality in the findings recorded by the first appellate Court. RAJAN KUMAR 2025.09.29 17:38 I am approving this document RSA-5853-2019(O&M) 6 13. It is well settled that continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing such relief. If the plaintiff fails to either aver or to prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must be proved to be available. Right from the date of execution of the agreement to sell, till the date of the decree, he must prove that he is ready and has always been willing to perform his part of the contract. Reference in this regard can be made to the decisions of the Hon’ble Supreme Court of India rendered in R.Kandasamy (Since Dead) and others v. T.R.K. Sarawathy and another, 2025 (3) SC 513, and N.P. Thirugnanam v. R. Jagan Mohan Rao, 1995 (5) SCC 115. 13.1 Further, it is also well settled that if the suit for specific performance is filed at the fag end of the limitation period, it can be inferred that the plaintiff was not ready and willing to perform his part of the contract. Otherwise, no serious person would wait until the end of the limitation period to institute a suit for specific performance. Reference in this regard can be made to a decision rendered by the coordinate Bench in Ranjit Singh and Others v. Mohan Singh and Others, (RSA-3133-1998, decided on 25.07.2024), wherein, while relying upon the law laid down by the Hon’ble Supreme Court of India in the cases of Rajesh Kumar v. RAJAN KUMAR 2025.09.29 17:38 I am approving this document RSA-5853-2019(O&M) 7 Anand Kumar and Others (Civil Appeal No.7840 of 2023 decided on 17.05.2024) and Azhar Sultana v. B. Rajamani, 2009(17) SCC 27, held that the Courts would frown upon suits, which are not filed immediately after refusal to execute the sale deed. It was held that the fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain specific performance. In that case also, the agreement to sell had been executed on 21.08.1986 with a target date to execute the sale deed of 15.06.1988, but the suit was filed on 14.06.1991. Under the circumstances, the coordinate Bench held that the plaintiffs were not ready and willing to perform their part of the contract. 14. Reverting to the facts of the case, after the target date of 30.12.2007 having been gone, the plaintiffs are stated to have appeared before the Sub Registrar on 31.12.2007. Thereafter, the plaintiffs went into a deep slumber and after almost two and a half years, they issued legal notice dated 11.06.2010 to the defendant and then filed a civil suit on 24.12.2010, i.e. at the fag end of the limitation period. It has to be borne in mind that the earnest money paid was only Rs.65,000/-. It is probably for this reason that the plaintiffs kept on delaying the matter. Had they been ready and willing to perform their part of the contract, they would have filed the suit instantly and at least within a reasonable period. The first appellate Court, therefore, rightly modified the decree of specific performance and ordered refund of the earnest money of Rs.65,000/-. In the considered opinion of this Court, there is absolutely no error in the said decision. RAJAN KUMAR 2025.09.29 17:38 I am approving this document RSA-5853-2019(O&M) 8 15. That being so, I do not find any reason to interfere in the impugned judgment and decree. The present appeal, therefore, is found to be bereft of merit and is accordingly dismissed. 14. Pending application(s), if any, also stands disposed of. ( VIKRAM AGGARWAL) JUDGE September 25, 2025 Rajan Whether speaking / reasoned: Yes/No Whether Reportable: Yes/No RAJAN KUMAR 2025.09.29 17:38 I am approving this document