APPEAL U/S 96 CPC
Purpose of appeal: To challenge the impugned Judgement/ decree /order of the trial court before the appellate court.
IN THE COURT OF DISTRICT JUDGE, (name
of district)
In the
matter of: -
(Full name, parentage and address of appellant)
...Appellant
VERSUS
(Full name, parentage, and address of respondent)
…Respondent
CIVIL APPEAL U/S 96
CPC AGAINST THE IMPUGNED DECREE DATED 07.03.2021 PASSED BY THE LEARNED CIVIL
JUDGE, RAWALPINDI WHEREBY THE LEARNED CIVIL JUDGE NONSUITED THE APPELLANT AND
REJECTED THE PLAINT U/O VII RULE 11 CPC
Respectfully Sheweth: -
1. That the appellant
filed a suit for specific performance of the agreement and permanent injunction
against the respondent with the assertion that the on 01.03.2020, through an
agreement, the appellant purchased land measuring 1 Kanal bearing Khewat No.
141, Khatooni No. 426, Khasra No. 476 situated in the revenue estate of ABC,
Tehsil & District Gujarat from the respondent against the total sale
consideration amount of Rs.450,00,000/- and paid an amount of Rs.10,00,000 as earnest money to the respondent and from
the remaining consideration amount, the appellant paid Rs.97,50,000/- to the
respondent on different times in different installments and in this way, the
appellant paid a total amount of Rs.1,07,50,000/- to the respondent.
Thereafter, it came into the knowledge of the appellant that the respondent is the
only owner of land measuring 10 Marlas, after getting the fact, the appellant
asked the respondent but the respondent deli delayed the matter on one or the
other pretext, hence the suit.
2. That on 08.09.2021,
the above said suit was filed by the appellant and on 28.10.2021, the counsel
of the appellant put his appearance and submitted Wakalatnama. On 26.02.2022,
the respondent submitted a written reply and the matter was fixed for arguments
on the application of temporary injunction after hearing both the parties, the
learned trial court directed the appellant to submit the balance consideration
amount in order to demonstrate his capability, readiness and willingness to
perform his part of the contract and the matter was adjourned.
3. That on 08.03.2022,
the suit of the appellant was dismissed due to non-prosecution, thereafter, the
appellant moved an application for the restoration of the suit on 12.04.2022
and on 28.05.2022, the application of the appellant for restoration of the suit
was accepted and the suit of the appellant was restored on its previous
proceedings.
4. That on 07.06.2022,
the matter was fixed for deposit of court fee as well as remaining balance
consideration amount by the appellant with last and final opportunity but the
same was not deposited by the appellant and on the same score the appellant’s
suit was rejected U/O VII R/o 11 CPC for non-depositing of remaining
consideration amount, which is impugned herein inter alia on the following: -
G R O U N D S
i.
That the impugned decree dated 07.03.2021 is against the
facts of the case and law.
ii.
That at the time of passing the impugned order, the learned
trial court did not bother to see the provision of Specific Relief Act 1877
despite knowing the fact that no such provision is available in the Specific
Relief Act to first deposit the balance sale consideration amount in the court
just to show his capability and willingness of the vendor. Reliance is placed
on 2021 SCMR 1277.
iii.
That the learned trial court also did not consider the
averments of the plaint of the appellant in which the appellate took a categorical
stance the defendant /respondent having incomplete title document at the time
of execution of the agreement and did not pass any order regarding the
production of the documents of the ownership, the only stress of the learned
trial court was to deposit the remaining consideration amount just to show his bonafide
which is against the law and even otherwise against the facts of the case.
iv.
That the points raised by the appellant in the plaint as
well as the written reply submitted by the respondent also need consideration
and all things will be better adjudged by the learned trial court after the recording
of evidence.
v.
That the learned trial court also failed to examine the fact
that the respondent did not comply with the terms and conditions of the sale
agreement and he miserably failed to perform his part of the agreement within
the stipulated period, hence the impugned decree is liable to be set aside.
vi.
That the learned trial court did not consider the valuable
rights of the appellant involved in the matter while passing the impugned
judgment and decree.
vii.
That while passing the impugned decree dated 07.03.2021, did
not appreciate the material evidence available on the file.
viii.
That the appellant may kindly be allowed to raise further
grounds at the time of arguments.
ix.
That the learned trial court did not consider material facts
available on file while passing the impugned decree dated 07.03.2021 which is a
great miscarriage of justice.
x.
That the judgment and decree passed by the learned trial
court are based on surmises and conjectures and caused the grave miscarriage of
justice to the appellant.
xi.
That the valuable rights of the appellant are involved in
the matter and if the impugned decree dated 07.03.2021 is not set aside, the
appellant shall suffer an irreparable loss.
xii.
That the learned court has not exercised the jurisdiction
which is vested to it and exercised the jurisdiction which is not vested to it
while passing the impugned decree dated 07.03.2021.
In view of the above
circumstances, it is, most respectfully prayed that the instant appeal may
kindly be accepted and the impugned decree dated 07.03.2021 passed by the court
of learned Civil Judge, Gujarat may kindly and graciously be set aside and may
graciously be decreed the suit of the appellant as prayed for, in the interest
of justice.
Any other relief
which this Hon’ble court deems just and proper may also be awarded.
Appellant
Through
(Counsel)
Dated: ___________
Certificate:-
Certified as per instructions furnished by the appellant this is the
first appeal ever moved before this Hon’ble Court.
…Counsel
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