Delhi High Court
Narain Kumar And Suri Wazir Singh vs H.C. Mehta on 26 May, 1986
Equivalent citations: AIR1987DELHI275, ILR1986DELHI545B, 1986RLR507
Author: S. Ranganathan
Bench: S. Ranganathan
JUDGMENT S. Ranganathan, J.
(1) These two revision petitions arise in similar circumstances and can be disposed of by a common order, though C.R. 902180 involves an additional issue that does not arise.in C.R. 903/80.
(2) H. C. Mehta (the respondent in these two petitions) was the perpetual lessee from the Government of India of a plot of land measuring 200 sq. yds. and bearing No 218, Vinoba Puri, New Delhi. By two agreements dated 24-1-1972, he agreed to sell one half of the plot each to Narinder Kumar (petition in C.R. 902/ 80) and Wazir Singh (petitioner in C.R. 903/80) for Rs. 13,000.00 . He received the full consideration for the plots agreed to be sold and also delivered possession of a half-portion of the plot on the western side to Narinder Kumar and of the eastern half portion to Wazir Singh. However, before sale deeds could be executed in favor of each vendee in respect of the 100 sq. yds. of the plot agreed to be sold to him, two conditions had to be fulfillled and under the agreements, the respondent undertook to take steps for their fulfilllment. These were as follows: (a) Under the terms of the original lease deed in favor of the respondent. the lessee had agreed "not to sub-divide the land or building erected thereon or any part thereof without the prior permission of the Lesser in writing". So, the respondent agreed to apply for an obtain from the concerned authorities viz. the Land & Development Officer, Nirman Bhawan, New Delhi (L. & D.O.), for the sub-division of the plot under the lease deed, (b) Permission had also to be obtained for the sale of the two sub-divided portions of the plot from the concerned authorities viz. the Delhi Development Authority. This also the respondent agreed to obtain. After obtaining the aforesaid permissions, the respondent was to execute sale deeds in respect of each of the sub-divided portion in favor of the- respective vendee.
(3) The case of the petitioners is that due to tremendous increase in the prices of land in Delhi, the respondent sought to evade execution of the deeds of sale in pursuance of the agreements. It was alleged that the respondent had purported to make an application to the L.&.D.O. on 22-2-1973 for the requisite permission but that, he had subsequently sought the cancellation of that application. Instead, he took steps purporting to transfer the whole plot to his wife. The petitioners. therefore, filed suits for specific performance of the agreements of sale, being suit No. 363176 and 362176 respectively in the Court of the Commercial Sub Judge. Delhi. The respondent, as the defendant in the suits, inter alia save an explanation for his letter to the L. & D.O. requesting that his application for permission for sub-division dated 22-2-73 may be cancelled. According to him. his application for sub-division had been rcjected. He alleged that coming to know of this, the petitioners persuaded him to sign some blank forms and. utilizing a power of attorney which had been given by him at the time of the agreements for but subsequently cancelled, applied to the L. & D.O. for permission for the sale of the whole plot jointly in their favor and he was, therefore, compelled to request the L. & D.O. to ignore his previous application.
(4) The two suits were disposed of by Shri B. N. Chalurvedi. Commercial Sub Judge on 20-11-1978. It is necessary here to refer to the findings of the learned Sub Judge on one of the issues viz. (I)Whether the defendant has applied for the subdivision of the plot in dispute to L. & D.O. and the said office has refused permission to subdivide the plot in suit ? If so, its effect ?"
(5) He found that the respondent had, on 22-2-1973. made applications for permission to sub-divide the plot (Exhibit Dw 1/5) as well as for its sale (Exhibit Dw 1/6) and also sent reminders on 12-3-1973 and 22-3-1973. He also found that there were orders by the L.&D.O. refusing to grant permission for the sub-division (Exhibit Dw 114) and the sale (Exhibit Dw I/P3) sometime in April 1973 and this fact had beep communicated to the petitioners on 14-9-1973 (Exhibit D.5). However, the learned Sub Judge found, the refusal had been the result of the respondent's dubious conduct and failure to pursue his application sincerely. The respondent, though apparently making on the one hand, applications for sub-division and sale permission, he had, on the other hand, also been discarding the same making application without knowledge of the petitioners. On 24-2-1973 itself, he had delivered a letter to the L.&.D.O. (Exhibit DW1/B1) requesting cancellation of the sale permission. On 22-2-1973 he had delivered another letter nullifying the power of attorney given by him and praying that no sale permission should be granted in favor of the petitioner at the request of the attorney (Exhibit Dw UP2). On 10-7-1983 he had sought to prevent grant of permission for sub-division on. payment of extra charges (Exhibit DW2/P6). There were also . other, letters to similar effect (Exhibit DW3tl and Exhibit DW.2/P3). in view of these documents, the learned Sub Judge divided the above issue in favor of the plaintiffs and held "that the said refuel Exhibit Dw 1/4 is no legal bar against making a fresh application to the L. &. D.O. for securing permission for subdivision of the plot as per terms of the agreement vide Exhibit D.I". After discussing the other contentions, urged before him, the learned Sub Judge concluded: "20.In view of my findings and discussion (on) the issues herein above, a decree for specific performance of agreement Exhibit D.I is granted in favor of the plaintiff and against the defendant, with costs, with the directions to the defendant that he shall apply to the L. & So afresh for the sub-division of the plot No. 218, Vinobha Pun, New Delhi, into the two equal shares of 100 sq. yds. each and get them named as A & B and, thereafter, shall obtain the requisite permission to sell from the said office in respect of (western) (eastern) portion in favor of the plaintiff. He shall, thereafter, execute and get the conveyance deed registered in favor of the plaintiff or his nominee at the expense of the plaintiff." A decree in the above terms dated 20-11-1978 was drawn up in each of the two suits.
(6) Tin 22-3-1979, the respondent filed in each of the suits an application purporting to be under Section 47 read with Section 151 of the Code of Civil Procedure. He stated therein that, in pursuance of the direction in the decree, he had moved before the L. & D.O., on 17118-12-1978, an application for the sub-division of the plot into two equal shares but that he had received a letter from the L.&D.O. dated 9-2-1979 refusing his request. The letter reads as follows : "WITH reference to his application dated 18-12-1978. Shri H. C. Mehta is informed that sub-division of the plot into sub-divided plots of less than 125 sq. yds. each is not permissible under the provision of the Zonal/master plan and, as such. the sub-division applied for cannot be granted. However. if you can get the part of the lay-out of the site revised from local Body and Dda the matter will be reconsidered".
(7) In view of the above refusal, he submitted, the further directions contained in the judgment decree dated 20-11-1978 had become incapable of execution and the same should be deemed to be discharged/satisfied. He. therefore, proved "that the judgment/decree dated 20-11-1978 be deemed to be discharged/satisfied and further the execution of the decree has become incapable." The letter dated 9-2-1979 appears to have been submitted Along with the application.
(8) Each of the petitioners filed a reply to the application. They denied, for want of knowledge, that the respondent had moved an application on 17/18-12-1978 and that he had intentionally not given the complete details of the letter. It was submitted that .the application made was. premature, as certain conditions had to be complied with before making such application and the respondent had not done this. It was alleged that the letter dated 9-2-1979 seemed to have been procured in collusion with the department. It was pointed out that an employee of the L. & D.O. had appeared before the Court at the time of the trial of the suit and deposed that permission to sub-divide was granted provided extra money is paid; that the respondent had specifically written to the department on 19-8-1973 that he was not ready to make the extra payment? and had not withdrawn that letter; and that, therefore he should be directed to withdraw the said letter, make a fresh application indicating his willingness to make extra payment and to comply with other provisions of the law. It was prayed that the application be dismissed with costs. This reply seems to have been filed on 25-1-1980. The learned Commercial Sub Judge (Shri Kuldip Singh) disposed of the application by his order dated 26-7-1980. He found (a) that the respondent had applied for permission to sub-divide the plot and this had been refused; (b) that there was no direction in the judgment that the' respondent should pay any extra money for the division of the plot; (c) that the letter of refusal also did not state that sub-division could be permitted on payment of money; and (d) that the counsel for the petitioners had also failed to cite any ruling to show that the sub-division of the plot, contrary to the zonal/master plan could be permitted on payment of money. On the other hand, as the decree passed envisaged a sub-division of the plot contrary to the zonal/master plan it became unexecutable. He, therefore, held that the decree "is unexecutable and the same stands satisfied".
(9) The petitioners appear to have filed, in the first instance, an application for review of the order dated 26-7-1980 before the Sub Judge but, on second thoughts, have also filed these revisions petitions challenging the legality and correctness of the orders of the Learned Sub Judge dated 26-7-1980. In the revision petition, the petitioners filed applications for interim stay of their dispossession being Cm 3328/80 and Cm 3229/80. While filing a reply to this application, the respondent, apart from referring to the refusal of. permission by the L. & D.O. dated 9-2-19/9, stated that he had again approached the L.&D.O. in the matter, who, by his letter dated 8-9-1980 informed him that "considering the provisions of the Master plan/ Zonal plan, it has been decided that the property cannot be allowed to be sub-divided, "and copies of this letter had been endorsed to the petitioners Narinder Kumar and Wazir Singh (to the former with reference to his application dated 29-2-1979). He had also annexed two copies to the above reply. One of these was a letter dated 13-9-1979 by the Additional Town Planner, Delhi Municipal Corporation (DMC) to the respondent by which the Dmc, (his reply to the respondent's application dated 24-8-1979) had stated that accord- ing to the lay-out plan of the colony the plot in question was a single plot of 200 sq. yds. and that under the rules, permission to sub-divide the same could not be given. The other was a letter addressed by the Additional Town Planner, Dmc to the Deputy Land & Development Officer, Land & Development Office, Nirman Bhawan, New Delhi dated 5-9-1980. This is a reply to the latter's letter to Dmc dated 3-9-1980 forwarding a copy of a letter dated 17-5-1979 from the Assistant Settlement Commissioner, Land & Development Department. This letter states (a) that Narinder Kumar (one of the petitioners herein) had given a petition for sub-division of the plot in question; (b) that this had been considered at the meeting of the lay-out committee dated 6-10-79; (c) and that it had been decided that this plot, which was a single plot according to the lay-out plan, could not be allowed under the rules to be sub-divided; and (d) that this had been communicated to Narinder Kumar by a letter dated 24-10-1979. The petitioner filed a rejoinder to this reply in which the letter of the Dmc of 11-9-1980 was alleged to have been "manipulated" and obtained "at the back of the petitioner" and the receipt of a copy thereof by the petitioner was denied. There is nothing in the rejoinder touching the other two letters. But it was generally asserted that the plot could have been validity and legally sub-divided and that the respondent had "obtained" a refusal for his own oblique reasons.
(10) The following contentions have been urged on behalf of the petitioners :- (1)The application filed by the respondent to have the decree declared as unexecutable, even before the petitioners took any steps for the execution of the decree, was not maintainable and should have been dismissed; (2) The learned Sub Judge erred in holding that the decree had become unexecutable merely on the strength of the letter dated 7-2-1979 which did not even contain a final refusal of permission fur subdivision; (3) As during the progress of the suit, so subsequently, the respondent had purported to make one-sided applications without notice to him and without any attempt to seriously pursue these application and had managed to procure a refusal of permission: and (4) The learned Sub Judge should have decided the application after giving both parties an opportunity to lead evidence and after a full-fledged hearing and, if this had been done or the petitioners had been given an opportunity of pursuing the matters with the L.&D.O., they could have obtained permission of subdivision as well as the sale of the property to them.
(11) Taking up the first contention, it seems to me that while the step taken by the respondent to file an application of the nature in question was somewhat unusual and calculated to forestall the petitioners, it is difficult to say that it was not maintainable. True, the respondent could have waited until the petitioners filed their execution petitions and then pleaded therein that the decree had either been satisfied or had become unexecutable But if the respondent is right in its submission that it has not been able to obtain for permission to subdivide the plot or to sell it and, therefore, the decree for specific performance had become unexecutable, there is no reason why the respondent should wait until the petitioners started proceedings in execution. He was entitled to move the Court and pet a declaration so as to clear the uncertainties and also avoid having the Damocles' sword of execution proceedings hanging over his head for an indefinite Public Witness indefinite period of time until the petitioners should choose to move in execution. Leaving the merits of the petition apart for separate consideration, it is difficult to say that a petition such as the one filed by the respondent was not at all maintainable in law.
(12) Turning now to the second contention, learned counsel for the petitioners urges that the letter of the L. & D.O. dated 7-2-179 did not shut the doors altogether on the applicant but promised reconsideration of the application if the lay-out plan could be got revised from the Dc and the DDA. Counsel contends that the respondent should have taken steps in this direction and without such attempts on his part, he could not plead that permission for sub-division had been refused. The truth was, he says, that the respondent was too eager to clothe at this straw of refusal to deny the petitioners the benefit of the decrees they had obtained. Reference is made to the conduct of the respondent before the suits were filed, when he made a similar claim, the hollowness of which was exposed by the learned Sub Judge who decreed the suite. It is contended that sub-division of plots is not impermissible in law and would have been granted on payment of certain stipulated charges. The respondent had also not submitted the application in proper form. He had submitted a vague application without notice to the petitioners and procured by some manipulation, within a very short time, a so allied refusal which the lower Court has too natively accepted as a refusal which rendered the decree inexecutable.
(13) The reply of the counsel for the respondent to these contentions is very simple. He says that the decree asked him to do two things: fast. to obtain a subdivision of the plot: and, second, to obtain sale permission for each of the plots. So far as the first of these is concerned, there is no form of application prescribed. It is only at the second stage, after sub-division is permitted and effected that an application form is prescribed to which an affidavit of the intending purchaser (that he owns no other plot in Delhi) has to be annexed. The application filed on 17-12-1978 was, therefore, in order. It was in these terms: "THE applicant begs to submit as under:- 1. That the applicant purchased the. above open plot measuring 200 sq. yds. from the Government of India in- the public auction as one unit. The lease- deed was executed on 11-1-1973 in favor of the applicant which was registered with the SnbReristrar, New Delhi on 23-1-1973 m No. 542 in Additional Book No. I Volume No. 3060 pages 34 to 37 dated 23-1-1973. 2. That I would request your honour to please subdivide the said plot into two equal shares measuring 100 sq. yds. each out of 200 sq. yds. and name them A & B for the purpose of date in parts. 3. I shall be highly obliged to have your confirmation whether the permission of sub-division can be granted to me of the said plot in to two equal shares for the purpose of sale in parts."
(14) It is pointed out that the application states all the relevant facts and that the petitioners have not been able to say in what respect the application was defective. The only duty imposed by the decree on the respondent was to make this application and decree on the respondent was to make this application and further consequences were to follow only if it was allowed. Once it was refused (it is submitted that allegations of collusion and manipulations were vague and unproved) nothing further remained to be performed under the decree. It is submitted that the decree imposed no duty in the respondent to inform the petitioners before the application. Nor could an obligation be read into the decree, on the part of the respondents, to apply for or obtain revision of the lay-out plan. It is well settled, it is said, that the decree has to be executed as it stands and that additions or improvements in its terms cannot be sought to he effected at the time of execution.
(15) I am inclined to accept the contention urged on behalf of the respondent that he had complied literally and scrupulously with the directions contained in the decree. There can be no doubt that he did apply for sub-division of the property as he was directed to do. There was no direction in the decree, or requirement in the relevant provisions of the law and the rules, that, before making this application, he should have given notice to the petitioners or obtained their consent. It was neither contended before the Sub Judge nor shown, either before him or me, that the application, made was defective or should have been made in any particular form or with consent of. or previous intimation, to the petitioners. Equally, it seems to me, there is not much force in the contention of the petitioners that the letter of 7-2-1979 did not curtain an unequivocal refusal of permission as it promised reconsideration of the application if the lay-out clan was got revised. What the decree directed the respondent to do was to get permission for sub-division in the state of things as on the date of the decree. That was definitely refused. The indication in the letter was only that the application might be reconsidered if the circumstances changed but I think counsel for the respondent is right in saying that there was no obligation on his part to seek a revision of the lay-out plan. The agreement to sell was subject to a permission for sub-division being granted in the state of things as they stood and neither the agreement nor the decree imposed any further obligation to seek a revision of the lay-out plan if that was imposed as a condition for the grant of permission. If, in view of the earlier conduct of the respondent, the petitioners had feared any dishonesty on the part of the respondent or anticipated any difficulties in grant of permission, they should have requested the learned Sub Judge to insert appropriate safeguards for their interests in the decree itself. This not having been done, it is not possible to read into the decree restrictions, conditions or further requirements that are not there and fault the respondent for not having got over those restrictions, complied with those conditions or fulfillled those requirements. It was for the petitioners to have remained vigilant and taken action to protect their interests. There was thus nothing wrong with the application that was made nor has it been shown that there was anything wrong with the order of refusal passed by the Dda on 7-2-79.
(16) The order clearly states that the rules did not permit the sub-division of an existing plot into plots less than 125 sq. yds. in extent. It has not been shown either before the Sub Judge or here how this statement is erroneous or that it was permissible under the rules to do so. I do not think that the evidence of the witness who had appeared at the trial of the suit-on behalf of the Dda (Niranjan Singh-- DWI) or the findings of the learned Judge in the context of a plea raised by the respondent /defendant in the suit that the sub-division of the plot .would be centre to the town-planning scheme and public policy so illegal under section 23 of he Contract Act help the case of the petitioners. As pointed out by the learned Sub Judge, the evidence of Dwi was unsatisfactory- It cannot form the basis for holding that the letter dated 7-2-79 was not in accordance with law. Counsel for the petitioners draw my attention to the Delhi Municipal Corporation (building) Bye-laws, 1964 amending the earlier Bye-laws of 1959. One of the amendments was to bye-law 25 which Was amended to prove that for construction of residential houses (other than group. housing) in residential zone, the minimum area of a plot should be 125 sq. yds. "except, ....in the colonies which were developed by the Minister ter of Rehabilitation or by any other governmental or municipal authority, or were sanctioned by any competent authority before 1-9-1902, or are in the villages failing within 1981 unrealizable limits of die Master Plan." These bye-laws, however, relate to the construction of houses and buildings and have no relevance to the grant of permission, by the principal Lesser, of the originally leased out unit plot of 200 sq. yds. Learned counsel has not been able to point out any scheme; policy rule, guideline or instruction under which the permission sought for could or should have been granted by the Lesser. Prima facie, therefore, it cannot be said that the learned Sub Judge made any such error, in accepting the position as stated in the said letter and granting the respondent's prayer in the application, as to sell for interference in revision petitions under section 115 of the Code of Civil Procedure.
(17) The third and fourth contentions urge don behalf of the petitioners can be taken up for consideration together. These contentions present two aspects: one is the learned Sub Judge should have decided the application not summarily but after a proper trial, with an opportunity to the petitioners to adduce evidence. The second is that if such opportunity had been given, the petitioners would have been able (a) to prove that the letter dated 7-2-197 had been procured by manipulation and (b) to take steps, on their own. to move the' appropriate authorities and obtained the necessary permission. In regard to the first aspect, the reliance is placed on section 141 of the Code of Civil Procedure to the effect that the procedure provided in the code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction and is contended that the application should have been listed for evidence and decided, after framing of issues and trial, in the same manner as a suit. It is true that the code does envisage the disposal of applications after trial and evidence when found necessary. Where there is real contest between parties on facts which cannot be decided without evidence, evidence should be recorded. But, at the same time. to say that the decision on each and every application should be preceded by a trial in which oral evidence is to be recorded would render the whole Code unworkable. The degree and extent of hearing to be given in the case of an application would depend on the facts and circumstances. In this case, the application was based on three letters, as already mentioned which. I find, had been filed in Court Along with the application on 22-3-79. In their reply, the petitioners did not deny the existence or genuineness of these letters. There was no allegation in the pleadings or even contention at the time of the hearing of the application that the application for permission was not proper or that permission had not been refused. No documentary evidence was referred to or sought to be adduced on the part of the petitioners. The allegation that the respondent had manipulated the letter of refusal was a vague and general allegation without any particulars or details of the alleged fraud. In this state of the pleadings, all that the Court had to do was to construe the documents filed with the application and adjudicate on their effect. That apart, the application was filed on March 1979 and was disposed of in July 1980. The records of hearing show that one adjournment was granted to enable the petitioners to get the letters relied upon by the respondent, one adjournment because if the absence of the petitioners, one adjournment to get the original recoras, one adjournment after the records were received and then, on the next hearing, arguments were addressed by both parties and orders reserved. At no stage did the petitioners ask, before the trial Court, for an opportunity to lead evidence to rebut the documents relied on by the respondents. In the circumstances, I am unable to agree that the order of the learned Judge was vitiated because it was disposed of en the arguments and the stages of framing of issues, evictor and trial were not gone through.
(18) Turning to the second aspect, I find, again, that no prejudice whatever has been caused to the petitioners and that there is no warrant or justification to send the case back to the trial Court for evidence or prayed for. At first sight, it does appear, from the haste with which the respondent made the application, the promptness with which he got a reply and the unusual type of application filed in Court, that the respondent was rather in a hurry to get a declaration that the decree had become unexecutable. Some suspicion arises in the mind as to whether there was some stage management behind all this particularly in view of the conduct of the respondent at the stage of the suits commented upon by the learned Sub Judge while decreeing the suits. However, I am satisfied, on a careful consideration for all the circumstances, that the attempt of the respondent to secure permission has been genuinely made and truly unsuccessful. The chronology of the various steps taken prior and subsequent to the letter dated 9-2-1979, which is borne out by the document placed before the trial Court at several stages, may be referred to in this connection:-
Date Contents of document Remarks (1) 17.12.78 Respondent applied to Letter filed on L.&D.O. 22.3.1979 (2) 9.2.79 L.& D.O. refuses permission. -do- (3) 23.2.79 Petitioner Narinder Kumar This is referred to applies to L.&D.O. in item (13) below (4) 17.5.79 (4) 17.5.79 Assistant Settlement Commissioner This is a letter writes to D.M.C. filed by the petitioners He refers to an application by Along with their application the purchasers, draws attention for the review to Bye-law (as amended) and of the order dated seeks their concurrence for 26.7.80- Also referred permission being granted to in item(12)below (5) 15.6.79. Respondent applies to Dda Letter filed on 26.10.1979 (6)9.8.79 Dda advises respondent to -do- apply applies to L.& D.O. (7) 24.8.79:3 Respondent applies to Dmc Filed on 26.10.79 (8)13.9.79 Dmc refuses permission (but -do- it again reconsiders the matter at the instance of the L.&D.O. vide items (11) and (12) below (9)6.10.79 ' Lay-out Committee refuses Referred to" in item consent (12)belcw (10) 24.10.79 Decision of Lay out Committee "' -do- ', is communicated to Narinder Kumar (11)3.9.80 L.& D.O. reminds Dmc Referred to in item (12) below (12) 5.9.80 Dmc address L.&D.O. It Filed Along with reply refers to and application to review application . . .received from Narinder Kumar and states that the Layout Committee has considered the matter and rejected the application . It also .states that the decision has been communicated to Narinde KUmar (13)8.9.80 L.&D.O. refuses permission -do- and endorses copy to both petitioners.
(19) These documents demonstrate beyond doubt that after the refusal dated 9-2-1979, the respondent again moved the Dmc and Dda besides the L. & D.O., that the petitioners also approached the L.&D.O., that the L.&D.O. and the Dmc had mutual consultations, that the lay-out committee to the Dmc had gone into the matter and that both the Dmc and L. & D.O. have unequivocally rejected the petitioners' representations too. It is difficult to believe that all these letters by the different authorities have been got by manipulation. In this state of the record, it is clear beyond doubt that there can be no vestige of suspicion left that the respondent had somehow manipulated to get a negative reply. The petitioners had also tried and they had not been successful. They had asked for a review on the basis of the L. & D.O.'s letter to the Dmc dated 17-5-1979 but did not choose to take the sub-court or this Court into confidence regarding the final outcome of that correspondence. I, therefore, see no reason or justification to remand the matter back to the trial Court or to provide an opportunity to the petitioners to try their luck with the concerned authorities or to direct the respondent to renew again the application for sub-division, associating the petitioners therewith.
(20) Counsel for the petitioners contended that the petitioners had put up valuable structures on the land at great expense and that the respondent should not be allowed to deprive him of the fruits of the decree by going through the motions of securing necessary permissions for execution of the sale deeds. I have already pointed out that the evidence clearly shows that genuine efforts have been made and pursued but have been unsuccessful. The respondent denies the allegation that the petitioners have incurred huge expenses states that there is hardly any pucca. structure, on the land. I do not consider it necessary to go into these allegations for, even assuming that the petitioners did incur expenses. they did so on the strength of a mere agreement to sell and they have to take the consequences in case specific agreement is found not possible.
(21) The petitioners have made two applications (CM. Nos. 1021/86 and 1022/86 in C.R. 902/80 and C.M. Nos. 1020/86 and 1023/86 in C.R. 903/80). By the former it is requested that the respondent should be directed to obtain sale permission in respect of the entire plot as one unit in favor of both the petitioners jointly. This prayer cannot be granted as it amounts to a rewriting of a agreements of sale, runs counter to the requirements of the sale deed and the terms of the ciders sought to be executed and seeks to amalgamate two different agreements with two different parties and the decrees obtained by them. It is also an indirect method of getting over the embargo on sub-division without permission contained in the sale deed and will. create further complications if, after obtaining such a sale deed, the petitioners are not able to get their portions sub-divided. By the second application, it is prayed that the Land & Development Authorities should be imp leaded as parties in these proceedings and directed to produce all the relevant records and to state whether sale permission could be granted or not. This application also deserves to be dismissed. It has been filed at a very belated stage after the revision had been heard in part. It is also superfluous in the face of the documents already placed on record, considered and discussed above. These applications are, therefore, dismissed.
(22) The respondent has one more string to his bow in so far as the claims of Narinder Kumar (C.R. 902/80) are concerned. According to him, prolonged negotiations took part between this petitioner and the respondent, after the admission of C.R. 902/80 on 10-11-1980, and the parties entered into a compromise. The terms of the said compromise were incorporated in an agreement dated 8-8-1982 "for the cancellation of the agreement to sell dated 24-1-1972". This agreement is said to have been signed by both the parties. After referring to the unsuccessful efforts of both the parties to secure permission for the sub-division of the plot. it narrates that the petitioner had agreed, in consideration of the payment of a sum of Rs. 80.000.00 (Rs. 67,000.00 more than the consideration originally agreed upon and received from the petitioner), to have the agreement of sale of 1972 cancelled. A cheque for Rs. 5,000.00 was stated to have been handed over on 8-8-1982 to the petitioner and it was said that, on payment of the balance of Rs. 75.000.00 by 31-12-82. the petitioner would hand over vacant physical possession of the half portion of the site. One further clause of the agreement was stated to be that the petitioner is to withdraw Cr 902/80 and request the Court to allow him to compromise the matter. The respondent filed Cm 48011984 in February. 1984. purporting to be under Order XXI11 rule 3, section 141 and section 151 of the Code of Civil Procedure praying that the Court may be pleased to record the compromise embodied in the said deed/agreement dated 8-8-1982 and dispose to the revision petition in accordance therewith. This application was opposed by the petitioner. He denied that there had been any agreement as alleged and denied his signatures thereon. He denied in his oral statement dated 28-3-1985 before the Court the receipt of a cheque for Rs. 5,000.00 from the respondent dated 8-8-1982. Sultan Singh J. also .permitted the parties to file affidavits by way of evidence and both parties have done this. It may be mentioned that. in his affidavit dated 16-10-1985, the petitioner admitted the receipt of the cheque dated 8-8-1982 but stated it had been given to him for some other purpose and not in pursuance of the cancellation of agreement of 8-8-1982 put up by the respondent counsel for the respondent requests that in view of the terms of this agreement, Cr 902180 should be dismissed.
(23) The petitioner raises certain preliminary objections to the entertainment of this application as one under Order Xxiii rule 3 of the Code of Civil Procedure : (1)The application is not signed by both parties as their counsel; (2) The provisions of rule 4 of Order Xxiii of the Cede of Civil Procedure precludes an application under rule 3 being entertained in execution proceedings ; and (3) The application is barred by time in view of Art. 125 of the Schedule of the Limitation Act, 1963.
(24) It is obvious that it is not necessary for me to express my opinion either, on the preliminary objections or on the merits of the application, in view of the conclusion I have reached on the main C.Rs. Counsel for the respondent, indeed, urged that this application should be heard before Cr 902180 since, if it is accepted, the petitioner will be bound to withdraw the said C.R. I did not. however, accept this request as this application pertained only to C.R. 902180 and Cr 903180 had, in any event, to be considered on the merits, there being no similar plea of compromise raised therein. I, therefore left it till the last and, in view of my decision in C.R. 902180 dismiss this application as infructuous at this stage. The respondent will, however, be at liberty to put forward all his pleas on the basis of the alleged agreement of 8-8-1982 in any appropriate proceedings, should occasion arise therefore by virtue of any subsequent proceedings that may be initiated by the petitioner.
(25) For the reasons discussed above, C.Rs. 902 and 903 of 1980 are dismissed. Cm 404181 is dismissed as infructuous. I shall, however, make no order as to costs.