Delhi District Court
Ms. Usha Gupta vs Sh. Arun Krishan Pahwa on 12 December, 2014
1
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. DISTRICT JUDGE
(WEST)02, TIS HAZARI COURTS:DELHI
RCA No. 23/2012
Unique ID Case No. 02401C0291322012
Sh. Shiv Kumar (since deceased)
through LRs
1. Ms. Usha Gupta
W/o late Sh. Shiv Kumar
R/o H. No. 1961, Outram Lane
Kingsway Camp,
Delhi110009
2. Sh. Vinod Gupta
S/o late Sh. Shiv Kumar
R/o 1265, Rang Mahal
Behind Novelty Cinema
Delhi110006
3. Sh. Jitin Gupta
S/o late Sh. Shiv Kumar
R/o 20/6, Rajpur Road,
Delhi110054
4. Mrs. Anju
D/o late Sh. Shiv Kumar
R/o A43, Jai Shiv Apartments,
West Enclave, Pitampura,
New Delhi.
RCA No. 23/2012 1/24
2
5. Sh. Vaibhav Gupta
S/o late Sh. Ashutosh Gupta
R/o 1265, Rang Mahal
Behind Novelty Cinema
Delhi110006
6. Sh. Raghav Gupta
S/o late Sh. Ashutosh Gupta
R/o 1265, Rang Mahal
Behind Novelty Cinema
Delhi110006
7. Mrs. Poonam Gupta
W/o late Sh. Ashutosh Gupta
R/o 1265, Rang Mahal
Behind Novelty Cinema
Delhi110006 ... Appellants
Versus
Sh. Arun Krishan Pahwa
S/o late Sh. Amrit Lal Pahwa
R/o 20, Rajpur Road,
Delhi. ... Respondent
Date of institution of the appeal 03.07.2012
Date on which, judgment have been reserved29.11.2014
Date of pronouncement of judgment12.12.2014
JUDGMENT:
The present appeal has been filed on behalf of the appellants against the impugned judgment/decree dated 21.05.2012 passed by the Ld. Trial Court in Suit RCA No. 23/2012 2/24 3 No. 225/06/84 titled as, 'Sh. Shiv Kumar (deceased) through LRs Vs. Sh. Arun Krishan Pahwa'.
It is pertinent to mention here that Cross Objections were also filed on behalf of the respondent in this case and the said cross objections filed on behalf of the respondent were dismissed being not pressed vide order dated 15.12.2012.
2. Brief facts necessary for the disposal of the present appeal are that a suit for specific performance of contract, permanent and mandatory injunction was filed on behalf of plaintiffs i.e. LRs of deceased Sh. Shiv Kumar (appellants herein) against the defendant Sh. Arun Krishan Pahwa (respondent herein) & Anr. In the said plaint, it has been stated that defendant Sh. Arun Krishan Pahwa is the owner of the property no. 20/6 (Part), Godawari Building, Rajpur Road, Delhi by virtue of a registered partition deed executed on 27.08.1974 registered as document no. 3766 Addl. Book No. 1, Vol. No. 3144 paged 97103 in the office of Sub Registrar, Delhi. It is further stated that Sh. Ashutosh Gupta (since deceased and previously defendant no.2 ) was a tenant in the above said property @ Rs.300/ per month and the said property was in his possession and was under his tenancy. It is stated that it was agreed and settled between the parties that the defendant will sell the above mentioned property in favour of the plaintiff, for a consideration of Rs.48,000/ and the mode of payment was also agreed and it was settled between the said parties that the plaintiff would have to make the payment of Rs.5,000/ as an earnest money to the defendant and Rs.28,000/ as a part payment in advance and the balance amount Rs.15,000/ was to be paid at the time of registration of the Sale Deed before RCA No. 23/2012 3/24 4 the Sub Registrar, Delhi. It is further stated that the defendant has received a sum of Rs.5,000/ as an earnest money from the plaintiff on 07.07.1980 and again the defendant has received a sum of Rs.28,000/ as a part payment of the sale money from the plaintiff on 23.10.1980 and thus the defendant has received a sum of Rs.33,000/ from the plaintiff and the same amount has been written in the Sale Deed which has been duly executed and signed by the defendant in favour of the plaintiff on the nonjudicial stamp of Rs.3,840/. It is stated that the defendant executed a Sale Deed for Rs.48,000/ on 09.01.1981 on the nonjudicial stamp of Rs.3,840/ in favour of the plaintiff for complete sale and transfer of the above mentioned property and the defendant read over all contents of the Sale Deed, acknowledged the receipt of Rs.33,000/ above referred amount in advance and admitted the balance sum of Rs.15,000/ to be received before the Sub Registrar, Delhi and the defendant admitted all contents, covenants and responsibilities etc to be correct and in token of which the defendant signed on the Sale Deed in the presence of the marginal witnesses. It is stated that after completion of all formalities, the above said sale deed was presented for registration in the office of Sub Registrar, Sub District No.I as required u/s 17 of Registration Act. It is further stated that after presentation of the Sale Deed for registration in the office of Sub Registrar, Delhi, the requisite registration fee was deposited in the said office and thereafter the defendant went to his house to bring the original title deed and other concerned documents required to be shown in the office of Sub Registrar, Delhi but the defendant did not turn up in the said office and thereafter the defendant avoided appearance before the Sub Registrar on one pretext or the other despite repeated RCA No. 23/2012 4/24 5 requests being made by the plaintiff. It is stated that the above said wrongful activity of the defendant caused apprehensions of his malafide intention and accordingly plaintiff sent a registered notice dated 20.04.1981 to the defendant for getting done the registration job of the Sale Deed dated 09.01.1981 in the office of Sub Registrar, Delhi but the defendant did not comply with the said notice. Thereafter, the plaintiff had filed an application u/s 36 of Registration Act in the office of Sub Registrar, Delhi for registration of the above mentioned duly executed and presented documents. It is further stated that the plaintiff had paid a sum of Rs.33,000/ out of the consideration amount of Rs.48,000/ to the defendant and the balance amount of Rs.15,000/ is lying with the plaintiff for making the payment of balance consideration amount to the defendant before the Sub Registrar, Delhi as stipulated in the aforesaid Sale Deed. It is stated that defendant had become dishonest and was trying to sell the aforesaid property to somebody else concealing all the facts of execution of the Sale Deed. It is also stated that defendant malafidely, illegally and unauthorizedly wanted to sell the property in dispute to some other person/persons which resulted in the filing of the present suit, wherein it has been prayed that a decree of permanent injunction may be passed in favour of the plaintiff and defendant may be restrained from selling, transferring and entering into bargain in respect of the above mentioned suit property. It has been further prayed that a decree of mandatory injunction may be passed in favour of the plaintiff and the defendant may be directed to appear before the Sub Registrar, Kashmere Gate, Delhi to admit the execution of Sale Deed dated 09.01.1981 and to get it registered on receipt of Rs.15,000/before the Sub Registrar at the time of registration. It has also been RCA No. 23/2012 5/24 6 prayed that decrees for specific performance, compensation and damages may be passed in favour of the plaintiff and against the defendant.
3. The defendant filed the W.S, wherein it has been stated that the present suit was liable to be dismissed as the plaintiffs were guilty of suppressing material facts. It is stated that initially Sh. Shiv Kumar Gupta filed a suit for permanent injunction against the defendant and therein the defendant took specific preliminary objection that the suit for permanent injunction was not maintainable and thereafter the said plaint was amended vide order dated 14.01.2001 and in the amended plaint, the relief was sought by the plaintiffs by way of mandatory injunction. It is further stated that defendant never visited office of the Sub RegistrarI for registration of the alleged Sale Deed nor ever presented the same for registration of the part of the property no. 20/6, Godawari Building, Rajpur Road, Delhi at any point of time. It is stated that plaintiffs have falsely alleged that sale deed was duly executed between the parties on the nonjudicial stamp papers of Rs. 3,840/ and the sale deed was presented for registration in the office of Sub Registrar, Sub DistrictI, Delhi. It is further stated that in fact Sh. Shiv Kumar Gupta got signatures of the defendant on typed sale deed and promised to pay the balance sale consideration of Rs. 15,000/ before getting the said document registered and since the balance consideration was not paid by Sh. Shiv Kumar Gupta, the sale deed was never presented nor got registered in his favour because said Sh. Shiv Kumar Gupta violated certain terms of the sale transactions and therefore the deal could not be materialized and the plaintiffs have intentionally and deliberately concealed these material information RCA No. 23/2012 6/24 7 from the court. It is stated that there was no document/any agreement in existence for entering into any bargain of the part of the property no. 20/6, Godawari Building, Rajpur Road, Delhi11006 alleged to have been executed between Sh. Shiv Kumar Gupta and defendant. It is stated that since Sh. Shiv Kumar Gupta violated certain terms of the sale transaction and as such the earnest money has been forfeited by the defendant. It is further stated that suit of the plaintiff was barred by limitation and was without any cause of action and that the suit has not been properly valued for the purpose of court fee and jurisdiction. It is stated that the sale deed was never presented for registration in the office of Sub Registrar and the defendant had never gone to that office for registration of alleged sale deed at any point of time. It is further stated that defendant had not received any notice from the plaintiff as alleged in the plaint. All other averments made in the plaint have also been denied on behalf of the defendant and it has been prayed that the suit of the plaintiffs may be dismissed with special cost.
4. Thereafter, the replication to the WS of defendant was filed on behalf of the plaintiffs, wherein averments made in the said W.S were denied as incorrect and those made in the plaint were reiterated as correct.
On the basis of the pleadings of the parties, issues were framed by the Ld. Trial Court and after trial, the aforesaid suit filed on behalf of the plaintiffs has been dismissed on merits as well as barred by limitation vide judgment/decree dated 21.05.2012 passed by the Ld. Trial Court.
Aggrieved by the abovesaid impugned judgment/decree, the appellants/ RCA No. 23/2012 7/24 8 plaintiffs have filed the present appeal, wherein it has been prayed that the said impugned judgment/decree dated 21.05.2012 passed by the Ld. Trial Court may be set aside and suit filed on behalf of the appellants/plaintiffs may be decreed.
5. Upon filing of the present appeal, notice of the appeal was issued to the respondent and accordingly, the respondent entered the appearance and contested the present appeal.
Trial Court Record (TCR) was also summoned and the same has been received.
6. I have heard the arguments at length put forward by Ld. counsels for the appellants & respondent and have carefully gone through the record of the case.
7. It has been submitted on behalf of the appellants that the impugned judgment/decree dated 21.05.2012 are against the law and facts of the case. It is further submitted that Ld. Trial Court has failed to appreciate the fact that respondent/ defendant admitted that there was an agreement to sell the property for a total consideration of Rs. 48,000/ for which respondent/defendant had admittedly received Rs.33,000/ and the balance amount of Rs.15,000/ was to be paid at the time of registration of the sale deed. It is submitted that Ld. Trial Court has failed to appreciate that the respondent/defendant admitted that he had signed on a document which effectively was the sale deed dated 09.01.1981. It is further submitted that Ld. Trial Court has failed to appreciate that in view of the admission by the respondent/ RCA No. 23/2012 8/24 9 defendant regarding the agreement to sell and receipt of payment of Rs.33,000/, the date of agreement to sell became immaterial, whether it was 07.07.1980 as claimed by the respondent/defendant or 23.10.1980 as claimed by the appellants/plaintiffs. It is submitted that Ld. Trial Court erred in ignoring that after having received nearly 69% of the admitted sale consideration, the respondent/ defendant was bound to appear before the Sub Registrar for the registration of the sale deed dated 09.01.1981 which had been presented for registration. It is submitted that Ld. Trial Court has failed to appreciate that respondent/defendant failed to produce/prove the existence of agreement to sell dated 07.07.1980, though his entire evidence was based upon the said document. It is submitted that Ld. Trial Court erred in holding that after paying Rs.33,000/ out of total sale consideration of Rs.48,000/, the appellants/plaintiffs were not ready and willing to pay the balance sale consideration, although the appellants/plaintiffs have all along been ready and willing to pay the balance amount of sale consideration. It is submitted that Ld. Trial Court erred in treating the date 09.01.1981 as the date on which the cause of action arose and ignored the fact that appellants/plaintiffs have been constantly following up with the respondent/ defendant to represent himself before the Sub Registrar and respondent/defendant refrained from doing so on one pretext or the other. It is further submitted that the Ld. Trial Court failed to appreciate that the cause of action arose when respondent/defendant failed to comply with the notice dated 24.4.1981 and as such the present suit filed on behalf of the appellants/plaintiffs on 02.02.1984 was within limitation. It is submitted that the impugned judgment is contrary to law as Ld. Trial Court erred by relying on the date (s) on which various amendments were allowed RCA No. 23/2012 9/24 10 and failed to appreciate that once amendment is allowed, it relates back to the date of institution of the suit and the date when the amendment was sought or allowed was immaterial. It is further submitted that the Ld. Trial Court erred in observing that appellants/plaintiffs did not prove the sale deed dated 19.01.1981 and failed to appreciate the fact that after execution, the said sale deed was presented for registration in the office of Sub RegistrarI, Delhi after depositing the requisite registration fees and as such original sale deed could not have been produced before the Ld. Trial Court. It is submitted that the Ld. Trial Court erred in neglecting the notice dated 03.03.1984 issued by Sub RegistrarI, Delhi on the application of the appellants/plaintiffs for registration of the sale deed u/s 36 of Registration Act, which have been presented before him. It is further submitted that the Ld. Trial Court failed to appreciate that on 19.10.1980, respondent/defendant had applied under the Urban Land (Ceiling & Regulation) Act 1976 for permission to transfer the suit property in favour of appellants/plaintiffs. It is submitted that the Ld. Trial Court failed to appreciate that respondent/defendant had admitted in his evidence that balance payment was to be made by the appellants/plaintiffs at the time of registration of the sale deed before the Sub Registrar, Delhi which was contrary to the objection raised by the respondent/defendant about not paying the balance amount before registration by the appellants/plaintiffs. It is submitted that the Ld.Trial Court erred in holding that appellants/plaintiffs were never ready and willing to perform their part of the agreement, although it has never been alleged by the respondent/defendant that appellants/plaintiffs did not have the means to pay the balance consideration. It is submitted that the Ld. Trial Court erred in holding the RCA No. 23/2012 10/24 11 suit to be not maintainable under section 41 (h) of Specific Relief Act, although the said objection was never taken by the respondent/defendant in his amended WS.
It has been further submitted on behalf of the appellants that impugned judgment/decree passed by the Ld. Trial Court was based upon conjecture & surmises and was in contradiction to the fact, law and evidence on record. It has also been submitted that the impugned judgment/decree passed by the Ld. Trial Court was based upon the presumption & assumptions and was not sustainable in law and it has been prayed that the impugned judgment/decree dated 21.05.2012 passed by the Ld. Trial Court may be set aside.
In support of his contentions, Ld. counsel for the appellants has relied upon the case law cited as 189 (2012) DLT 101, 2013 (54) PTC 489, AIR 2002 SC 3369, judgment dated 21.08.2006 passed by Hon'ble High Court of Delhi in WP (C) No. 1567/1997 and AIR 2004 Karnataka 211.
8. On the other hand, it has been submitted by Ld. counsel for the respondent that there was no illegality or irregularity in the impugned judgment/ decree dated 21.05.2012 passed by the Ld. Trial Court. It is further submitted that Ld. Trial Court has properly appreciated the material on record and have correctly passed the impugned judgment/decree in the fact & circumstances of the case. It is submitted that the appellant has failed to disclose any substantial question of law and as such the appeal filed on behalf of the appellant was not maintainable. It is further submitted that the plaintiffs/appellants did not pay the balance sale consideration and therefore the defendant never appeared before the Sub Registrar. It is submitted RCA No. 23/2012 11/24 12 that the reliefs claimed by the appellants/plaintiffs in the suit were rightly declined by Ld. Trial Court as the said reliefs were barred by time. It is further submitted that the relevant proforma of suit for specific performance as mentioned in item no. 48 in the CPC requires the original document to be annexed therewith the plaint, however in the instant case, the said original document has not been filed on behalf of the appellants/plaintiffs and as such the suit for specific performance filed by them was even otherwise not maintainable. It is submitted that where a document is duly signed and executed by an executant, then the document is to be presented for registration and Sub. Registrar is bound to register the document and where the Sub Registrar does not register the document, then the remedy to the purchaser is to prefer an appeal before the Sub Registrar and admittedly no order of non registration has been obtained from the Sub Registrar by the appellants/plaintiffs nor any appeal have been filed by the appellants/plaintiffs. It is further submitted that in the instant case, the appellants/plaintiffs while seeking mandatory injunction in 1992 by an amendment and then suit for specific performance by seeking amendment of the original plaint, did not exhaust the remedy available to them under the Registration Act and as such their suit was not maintainable u/s 41 (h) of the Specific Relief Act. It is submitted that the suit of the appellants/plaintiffs was even otherwise not maintainable in view of the provisions of Section 71 to 77 of Registration Act. It is further submitted that the Ld. Trial Court while deciding issue no. 5 has rightly held that the plaintiffs have failed to prove the document Ex. PW1/2 as its original has not seen light of the day and photocopy of the same was not proved as per law. Further, no notice for production of original was served upon the defendant nor there RCA No. 23/2012 12/24 13 is anything on record to show that the original was in possession of the defendant and as such the appellants/plaintiffs have failed to prove the said document on record and hence, suit of the plaintiffs have been rightly dismissed by the Ld. Trial Court. It is submitted that perusal of the above said document would show that this document has been manufactured by the use of photocopy technique as is apparent from the high density of ink used in the word '23rd ' in the second line of first page as compared to the other part of the matter of the first page. Further, the boundary of the first page shows that it is a photocopy of some other document and the first page has large space on the left side while third page has little space on the left side and thereafter fourth page has large space while fifth has little space and possibility cannot be ruled out that the signatures of the first page have been lifted from one photocopy and affixed on the document i.e. photocopy of Ex. PW1/2 and further there is no similarity in the fifth page of the document regarding typing of the document. It is further submitted that in the instant case, the relief of specific performance has been sought to be included in the year 2010 and as per Article 54 of Limitation Act, the limitation for the said suit is three years from the time when the plaintiffs noticed that the performance is refused and according to the averments, the plaintiffs noticed the refusal on 09.01.1981 and the agreement dated 07.07.1980 too has not been produced on record, the period for registration was fixed for six months which expired on 07.01.1981 and as such the period of limitation is to be computed, as per Article 50, from 07.01.1981 and the suit was filed on 02.02.1984 and as such it has been rightly held by the Ld. Trial Court that the suit of the appellants/plaintiffs was barred by limitation. It is further submitted that although RCA No. 23/2012 13/24 14 amendments relates back to the date of institution of the suit but as far as the relief claimed is concerned the limitation, visavis the relief claimed, is to be counted according to the Limitation Act from the date, the relief is claimed. The Limitation Act prescribes the limitation of three years from refusal and in the instant case, the relief of specific performance has been claimed in the year 2010 i.e. almost 29 years from the date of cause of action and as such suit of the appellants/plaintiffs was barred by time. It is submitted that the findings of the Ld. Trial Court are in confirmity with the documents on record and the view taken by the Ld. Trial Court should not be reversed in appeal unless the findings of the Ld. Trial Court are erroneous or perverse. It has also been submitted that there was no illegality or irregularity in the impugned judgment/decree dated 21.05.2012 passed by the Ld. Trial Court and it has been prayed that the present appeal filed on behalf of the appellant may be dismissed.
In support of his contentions, Ld. counsel for the respondent has relied upon the case law cited as AIR 1996 SC 2358.
9. In rebuttal, it has been submitted on behalf of the appellants that the respondents cannot make submissions which are contrary to or beyond the record in the trial court. It is further submitted that respondent can only support impugned judgment to the extent, it deals with the issues raised and dealt with therein but not beyond that and for that respondent was required to file an independent appeal which have not been filed by him and the respondent withdrew the cross objections/appeal filed by him. It is submitted that respondent's reference to and reliance on various RCA No. 23/2012 14/24 15 provisions of the Registration Act is baseless and misconceived as no such case was setup by him before the Ld. Trial Court. It is further submitted that the respondent cannot impugn the allowing of the application u/o 6 rule 17 CPC and the said amendments, which were allowed, related back to the filing of the suit and it was never the respondent's case before the Ld. Trial Court nor has the same been dealt with in the impugned judgment that the LRs of the plaintiffs could not seek any amendment. It is submitted that it was never respondent's case before the Ld. Trial Court nor has the same been dealt with in the impugned judgment that the plaint was contrary to the CPC or the forms therein. It is further submitted that the allegations regarding non production of the original sale deed were baseless and misconceived as the original sale deed was with the Sub Registrar. It is submitted that the appellants took steps for the summoning of the record from office of the Sub Registrar but the same was not produced before the Ld. Trial Court. It is further submitted that the contents of the sale deed as to the essential relating to the identity of the property and consideration were known and admitted and as such it was not necessary for the original agreement/document to be produced before the Ld. Trial Court. It is also submitted that impugned judgment/decree passed by the Ld. Trial Court was against the law and facts on record and it has been prayed that the impugned judgment/decree dated 21.05.2012 passed by the Ld. Trial Court may be set aside and the suit filed on behalf of appellants/plaintiffs may be decreed.
10. I have carefully considered the submissions made on behalf of the appellants & respondent and have carefully gone through the record of the case. I RCA No. 23/2012 15/24 16 have also carefully perused the TCR, written submissions filed on behalf of both the parties as well as the case law relied upon by Ld. counsels for the appellants and respondent.
11. The present appeal has been filed on behalf of the appellant against the impugned judgment/decree dated 21.05.2012 passed by the Ld. Trial Court in Suit No. 225/06 titled as, 'Sh. Shiv Kumar (deceased) through LRs Vs. Sh. Arun Krishan Pahwa', whereby suit filed on behalf of the appellants/ plaintiffs have been dismissed.
12. It has been submitted on behalf of the appellants that Ld. Trial Court has failed to appreciate that the respondent/defendant admitted that he had signed on a document which effectively was the sale deed dated 09.01.1981. It is further submitted that Ld. Trial Court has failed to appreciate that in view of the admission by the respondent/defendant regarding the agreement to sell and receipt of payment of Rs.33,000/, the date of agreement to sell became immaterial, whether it was 07.07.1980 as claimed by the respondent/defendant or 23.10.1980 as claimed by the appellants/plaintiffs. It is submitted that Ld. Trial Court erred in ignoring that after having received nearly 69% of the admitted sale consideration, the respondent/ defendant was bound to appear before the Sub Registrar for the registration of the sale deed dated 09.01.1981 which had been presented for registration. It is submitted that Ld. Trial Court has failed to appreciate that respondent/defendant failed to produce/prove the existence of agreement to sell dated 07.07.1980, though his entire RCA No. 23/2012 16/24 17 evidence was based upon the said document. It is submitted that Ld. Trial Court erred in treating the date 09.01.1981 as the date on which the cause of action arose and ignored the fact that appellants/plaintiffs have been constantly following up with the respondent/defendant to represent himself before the Sub Registrar and respondent/defendant refrained from doing so on one pretext or the other. It is further submitted that the Ld. Trial Court failed to appreciate that the cause of action arose when respondent/defendant failed to comply with the notice dated 24.4.1981 and as such the present suit filed on behalf of the appellants/plaintiffs on 02.02.1984 was within limitation. It is submitted that the impugned judgment is contrary to law as Ld. Trial Court erred by relying on the date (s) on which various amendments were allowed and failed to appreciate that once amendment is allowed, it relates back to the date of institution of the suit and the date when the amendment was sought or allowed was immaterial, however the said submissions made on behalf of the appellants are devoid of any merits and are contrary to the record as the perusal of the record reveals that Ld. Trial Court has properly dealt with all the averments and contentions raised on behalf of the appellants and have come to the just and reasonable conclusions on the basis of the material available on record.
In the instant case, the perusal of the record reveals that initially the plaintiff has filed a suit for permanent injunction, wherein it has been prayed that the respondent may be restrained from selling, transferring and alienating the suit property. Thereafter in the year 1992 the above said suit/plaint was amended by the plaintiff by adding the relief of mandatory injunction, vide which the plaintiff has prayed for the decree of mandatory injunction thereby compelling the defendant to RCA No. 23/2012 17/24 18 appear before SubRegistrar, Kashmere Gate, Delhi and to admit the execution of Sale Deed dated 09.01.1981. The perusal of the record further reveals that thereafter another application for amendment was moved on behalf of the plaintiff and the said application was allowed in the year 2011, whereby the plaintiff incorporated the prayer for the decree of specific performance of the contract for the first time and the said relief was allowed, subject to law of limitation and the issues in this regard were also framed in the suit. Further, as per the appellants/plaintiffs, the saledeed was presented before the SubRegistrar on 09.1.1981 and that time, the defendant/ respondent left for his house on the pretext of bringing original documents and thereafter he never turned up. In these circumstances, it has been correctly, observed by the Ld. Trial Court that as per the case of the plaintiff, the defendant walked out from the SubRegistrar office on 09.1.1981 and therefore, the cause of action arose on 09.1.1981 and not subsequent thereto. It has been further rightly observed by the Ld. Trial Court that initial suit for permanent injunction was filed on 02.2.1984 and on that date, the suit for specific performance was already barred from 09.1.1981. It has also been observed by the Ld. Trial court that the application to incorporate the prayer of mandatory injunction was filed on 03.8.1992, which was also hopelessly barred by limitation and further of specific performance was filed on 23.11.2010 which by no stretch of imagination was in time and as such the original suit was not maintainable and otherwise also barred by limitation. It has been submitted on behalf of the appellants that Ld. Trial Court erred by relying on the date (s) on which various amendments were allowed and failed to appreciate that once amendment is allowed, it relates back to the date of institution of the suit and RCA No. 23/2012 18/24 19 the date when the amendment was sought or allowed was immaterial, however , the said submissions are not of much use to the appellant as in the instant case, the perusal of the record reveals that as per the case of the plaintiffs/appellants, the defendant left the office of SubRegistrar on 09.1.1981 for bringing the relevant original documents and thereafter he never appeared and continued to avoid appearance on one pretext or other. In these circumstances, even as per the case of the plaintiff, the first refusal on the part of the defendant was on 09.1.1981 and as such, the period of limitation of three years for the purpose of filing of suit for specific performance is required to be calculated from the said date. The perusal of the record reveals that the present suit has been instituted on behalf of the plaintiff on 02.2.1984 i.e beyond the period of limitation of three years prescribed for a suit for specific performance. In these circumstances and in view of the material on record, it is evident that the present suit filed on behalf of the plaintiff/appellants was barred by limitation and it has also been rightly so held by the Ld. Trial Court.
13. It has been further submitted on behalf of the appellants that the Ld. Trial Court erred in observing that appellants/plaintiffs did not prove the sale deed dated 19.01.1981 and failed to appreciate the fact that after execution, the said sale deed was presented for registration in the office of Sub Registrar, Delhi after depositing the requisite registration fees and as such original sale deed could not have been produced before the Ld. Trial Court. It is submitted that the Ld. Trial Court erred in neglecting the notice dated 03.03.1984 issued by Sub RegistrarI, Delhi on the application of the appellants/plaintiffs for registration of the sale deed RCA No. 23/2012 19/24 20 u/s 36 of Registration Act, which have been presented before him. It is submitted that the Ld. Trial Court failed to appreciate that respondent/defendant had admitted in his evidence that balance payment was to be made by the appellants/plaintiffs at the time of registration of the sale deed before the Sub Registrar, Delhi which was contrary to the objection raised by the respondent/ defendant about not paying the balance amount before registration by the appellants/ plaintiffs. It is submitted that the Ld. Trial Court erred in holding that appellants/ plaintiffs were never ready and willing to perform their part of the agreement, although it has never been alleged by the respondent/defendant that appellants/ plaintiffs did not have the means to pay the balance consideration. It is further submitted that Ld. Trial Court failed to appreciate that appellants/plaintiffs have all along been ready and willing to pay the balance amount of sale consideration. It is submitted that the Ld. Trial Court erred in holding the suit to be not maintainable under section 41 (h) of Specific Relief Act, although the said objection was never taken by the respondent/defendant in his amended WS, however the said contentions put forward on behalf of the appellants are devoid of any merits and are contrary to record as perusal of the record reveals that Ld.Trial Court has properly dealt with the above said contentions raised on behalf of the appellants and have come to just and reasonable conclusions on the basis of the material on record. In the instant case, the perusal of the record reveals that a sum of Rs. 5000/ was paid by the plaintiffs to the defendant on 07.7.1980 as an earnest money and thereafter a sum of Rs.28,000/ was paid by him to the defendant on 23.10.1980 towards part payment of the sale consideration and the remaining amount of Rs.15,000/ was to be paid at the time of registration of the RCA No. 23/2012 20/24 21 Sale Deed. Further, according to the plaintiff/appellants, the said sale deed was presented before the SubRegistrar for registration on 09.1.1981 but the defendant left the said office on the pretext of bringing original documents and on the other hand according to the defendant, the plaintiff got the signatures on sale deed but did not pay the balance sale consideration. It is also stated that the defendant never appeared before the SubRegistrar for the registration of sale deed as the balance sale consideration was never paid to him by the plaintiffs. In the present case, in view of the material on record, it has been rightly held by the Ld. Trial Court that there is nothing on record to suggest that plaintiff was always willing and ready to perform his part of the contract. Further, it has been rightly observed by the Ld.Trial Court that execution of the alleged agreement to sell Ex. PW1/2 has not been proved on record by the plaintiff. It has been further correctly observed that original of the said document has not seen light of the day and photocopy of the same was not proved as per law. Further, no notice for production of the original was served upon the defendant nor there was anything on record to show that the original was in the possession of the defendant and as such the plaintiff has failed to prove the said document in accordance with law. In addition to this, it has also been rightly observed by the Ld. Trial Court that Sale Deed MarkP1 does not bear the essential entries of the office of the SubRegistrar to show that it was actually presented for registration on 09.1.1981. The stamp paper shows that it was purchased on 08.1.1981 and was typed and signed on the same date but it does not show that it was presented for registration before the SubRegistrar concerned. In this regard, it is pertinent to note that in her cross examination, one of the plaintiffs i.e PW1 has RCA No. 23/2012 21/24 22 stated that the agreement to sell executed in August ,1980 was not registered in the office of SubRegistrar and that she can not produce on record the agreement to sell executed in the month of August, 1980 nor the copy of the same. PW1 further stated that similarly, agreement to sell dated 07.7.1980 was also not registered in the office of SubRegistrar and she can not produce on record, the said agreement to sell or copy thereof. PW1 stated that she can not produce on record either original of Ex. PW1/2 or certified copy thereof and she admitted that except Ex. PW1/2 there was no other copy of that document on record. PW1 further stated that sale deed was typed either on 8th or 9th January, 1981 but she did not know the name of typist who typed it and she admitted that particulars pertaining to the registration were not mentioned on the photocopy of the sale deed, Mark P1.
In addition to above, the perusal of the record reveals that original of the document, Ex. PW1/2 have not been placed on record on behalf of the plaintiff/appellants and the document of which specific performance is being has also not been annexed with the plaint. In these circumstances and in view of the material on record, it has been rightly observed by the Ld.Trial Court that agreement to sell Ex. PW1/2 have not been proved on record in accordance with law. Further, it has been rightly observed by the Ld. Trial Court that none of the documents filed on behalf of the plaintiffs were of January or February, 1981 and that first notice issued by the plaintiff was in April, 1981 which shows that he failed to perform the part of his contract. It has been further correctly observed by the Ld. Trial Court that had there been any force in the contention of the plaintiff that he was ready and willing to pay the remaining consideration amount then atleast there should have RCA No. 23/2012 22/24 23 been something on record to substantiate the said plea. Apart from this, in view of the material on record, it has also been rightly observed by the Ld. Trial Court that there is nothing on record to suggest that plaintiff was always willing and ready to perform his part of the contract and contrary to it there was sufficient evidence against the plaintiff that it was he, who failed to comply with the conditions of the agreement to sell arrived between the parties. In these circumstances and having regard to the fact & circumstances of the present case and in view of the material on record, it is evident that the present suit filed on behalf of the plaintiffs has been rightly dismissed by the Ld. Trial Court .
Ld. counsel for the appellants has relied upon the case law cited as 189 (2012) DLT 101, 2013 (54) PTC 489, AIR 2002 SC 3369, judgment dated 21.08.2006 passed by Hon'ble High Court of Delhi in WP (C) No. 1567/1997 and AIR 2004 Karnataka 211, however the said case law is not applicable in the instant case as the fact and circumstances of the present case are different from the fact and circumstances of the cases discussed therein and in my considered opinion, the aforesaid case law is not of any help to the appellants in this case.
14. It has been submitted on behalf of the appellants that the impugned judgment/decree dated 21.05.2012 are against the law and facts of the case. It has been further submitted on behalf of the appellants that impugned judgment/decree passed by the Ld. Trial Court was based upon conjecture & surmises and was in contradiction to the fact, law and evidence on record. It has also been submitted that the impugned judgment/decree passed by the Ld. Trial Court was based upon the RCA No. 23/2012 23/24 24 presumption & assumptions and was not sustainable in law, however the said contentions put forward on behalf of the appellants do not hold water and are contrary to the record as perusal of the impugned judgmentorder/decree reveals that it is based upon the sound, cogent and just reasoning and the same has been passed on the basis of the proper appreciation of the material on record.
15. Thus, in view of the above discussion & observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that there is no illegality or infirmity in the impugned judgment/decree dated 21.5.2012 passed by the Ld. Trial Court.
Accordingly, the present appeal filed on behalf of the appellant against the aforesaid impugned judgment/decree dated 21.5.2012 passed by the Ld. Trial Court in Suit No. 225/06/84 titled as, 'Sh. Shiv Kumar (deceased) through LRs Vs. Sh.Arun Krishan Pahwa'' is hereby dismissed.
Decree sheet be prepared accordingly.
TCR alongwith copy of this judgment be sent back to the Ld.Trial Court.
Appeal file be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
( court on 12.12.2014) ADJ02 (West)
Tis Hazari Courts Delhi
12.12.2014
RCA No. 23/2012 24/24
25
RCA No. 23/2012
12.12.2014
Present : None.
Vide separate judgment, announced in the open court, the present appeal filed on behalf of the appellant against the impugned judgment/ decree dated 21.5.2012 passed by the Ld. Trial Court in Suit No. 225/06/84 titled as, 'Sh. Shiv Kumar (deceased) through LRs Vs. Sh.Arun Krishan Pahwa' has been dismissed.
Decree sheet be prepared accordingly.
TCR alongwith copy of the judgment be sent back to the
Ld. Trial Court.
Appeal file be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
( court on 12.12.2014) ADJ02 (West)
Tis Hazari Courts Delhi
12.12.2014
RCA No. 23/2012 25/24
26
RCA No. 23/2012 26/24