P.K BHASIN,J: - (1.) THIS appeal has been filed by the appellant-defendant under Section 100 of the Code of Civil Procedure against the order dated 01.12.2007 passed by the learned Additional District Judge in RCA No. 65/04/03 whereby the appeal filed by the appellant-defendant against the judgment and decree dated 25.01.2003 passed by the learned Civil Judge decreeing the suit for specific performance filed by the respondent-plaintiff was affirmed and the appellant-defendant has been directed to execute a sale deed in favour of the respondent- plaintiff in respect of property no. 39, Nirankari Colony, Delhi which he had agreed to sell to the respondent-plaintiff vide agreement to sell dated 28th February, 1985.
(2.) THE trial Court as well as the first appellate Court have held that the respondent-plaintiff had done his part of the agreement by signing necessary documents for getting permission from the appropriate authority for sale of the suit property and that even though permission had been granted in October, 1985, as deposed to by PW-2, the appellant-defendant had failed to execute the sale deed in favour of the respondent-plaintiff who was always willing and ready to perform his remaining part of the contract also viz. payment of the unpaid sale consideration to the appellant-defendant. In view of the aforesaid findings of the two courts below learned counsel for the respondent-plaintiff had submitted that no substantial question of law arises in this matter which required to be decided by this Court. On the other hand, learned counsel for the appellant-defendant had submitted that in this case the courts below should not have passed a decree for specific performance in favour of the plaintiff-purchaser simply for the reason that he had filed the suit within the prescribed period of limitation of three years ignoring the fact that as per the plaintiff's own case the competent authority had granted necessary sale permission in the year 1985 itself while the suit was filed in February, 1988 which delay on his part showed that he was not really willing and ready to purchase the suit property. In this regard learned counsel relied upon a judgment of the Supreme Court in "Mrs. Saradamani Kandappan vs Rajalakshmi & another", JT 1997 (8) 129. My special attention was drawn to the following observations of the Supreme Court made in para no. 28(iii) of the judgment: "28.(iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the agreement. Courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three year period is intended to assist purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser." After giving my thoughtful consideration to the rival submissions made by the learned counsel for the parties and going through the judgments of the Courts below I am of the view that the following substantial question of law does arise for the decision of this Court in this second appeal:- "Whether the Courts below were justified in coming to the conclusion that the respondent-plaintiff was always willing and ready to perform his part of the contract and granting a decree of specific performance to the respondent-plaintiff without considering the fact that he had filed the suit in February, 1988 even though as per his own case the appellant-defendant had got necessary sale permission in October, 1985 and still had not executed the sale deed."
(3.) THIS appeal is, therefore, admitted for hearing on the aforesaid substantial question of law and it shall be listed for hearing in due course in the category of 'Regulars'.;