Himachal Pradesh High Court
Ranjana Nagpal Alias Ranjana Malik vs Devi Ram And Ors. on 3 December, 2001
Equivalent citations: AIR2002HP166
Author: R.L. Khurana
Bench: R.L. Khurana
JUDGMENT R.L. Khurana, J.
1. The appellant before this Court was defendant No. 3, while respondent No. 1 was the plaintiff and respondents No. 2 to 4 were the defendants No. 1, 2 and 4, respectively, before the learned trial Court in Civil Suit No. 156/1 of 1991. For the purpose of convenience, the parties are being referred to accordingly hereinafter.
2. Defendant No. 3 is aggrieved by the judgment and decree dated 30-6-1997 of the learned District Judge, Shimla, affirming the judgment and decree dated 17-6-1992 of the learned Sub-Judge 1st Class (3), Shimla.
3. The defendants No. 1 to 4 and one Smt. Sumitri Devi (mother of defendant No. 3) representing themselves to be the owners and in possession of the house property known as "Anwar Cottage" Lower Kaithu, Shimla along with servant quarter and the land underneath comprising of khasra No. 100, khata/khatoni No. 227/390 measuring 11 biswas (as detailed in the jarnabandi for the year 1965-66), on 1-10-1982 entered into an agreement with the plaintiff agreeing to sell the said property, hereinafter referred to as the property in dispute, to the plaintiff for a total consideration of Rs. 72,000/-. A sum of Rs. 15.000/- as advance was paid by the plaintiff to the defendants and Smt. Savitri Devi by way of three cheques as under :--
(a) cheque No. 4/27-619755 dated 13-4-1982 for Rs. 5,000/- in favour of defendant No. 4 ;
(b) cheque No. 4/27-619756 dated 13-4-1982 for Rs. 5,000/- in favour of Smt. Savitri Devi; and
(c) cheque No. 4/27-619757 dated 13-4-1982 for Rs. 5,000/- in favour of defendant No. 1.
4. The balance sale consideration of Rs. 57,000/- was agreed to be paid by the plaintiff at the time of registration of the sale deed before the Sub Registrar, Shimla. Besides, other stipulations, the agreement to sell dated 1-10-1982 (Ex. PW3/A) stipulated :
(i) The defendants were to execute the necessary sale deed in favour of the plaintiff within six months from the date of the sanction of mutation in their favour in respect of the property in dispute;
(ii) The plaintiff was bound to get the sale deed registered within a period of two months from the date of service of notice on him by the defendants calling upon him to get the sale deed registered;
(iii) In the event of the plaintiffs failure to get the sale deed executed and registered within the period stipulated under (ii) above, the advance of Rs. 15,000/- paid would stand forfeited;
(iv) In the event of defendants failure to execute the sale deed within the period prescribed under (i) above they would be liable to pay to the plaintiff double the amount of advance of Rs. 15,000/-. Besides, the plaintiff would be entitled to get the agreement enforced through Court of law.
5. The mutation in respect of the property in dispute was sanctioned in favour of the defendants on 30-11-1984. No intimation regarding the sanctioning of mutation was given by the defendants to the plaintiff in terms of the agreement. The plaintiff on coming to know about the sanctioning of mutation, repeatedly called upon the defendants to execute the sale deed in his favour in terms of the agreement (Ex. PW3/A). However, the defendants failed and refused to perform their part of the agreement. Hence the plaintiff filed a suit for the specific performance of the agreement (Ex. PW3/A) and for possession of the property in dispute.
6. The suit was resisted and contested by defendant No. 3 alone. Defendant No. 4 did not put in appearance in spite of service. Hence he was proceeded against ex parte. Defendant No. 2 on 26-12-1986 put in appearance for self and as attorney for defendant No. 1 and made a statement that he had no objection to the suit for specific performance being decreed in favour of the plaintiff.
7. Be it stated that Smt. Sumitri Devi abovenamed and the mother of defendant No. 3 had died before the suit and was succeeded by defendant No. 3 alone. Therefore, she was not impleaded as party to the suit. Her interest and estate was being represented by defendant No. 3.
8. Defendant No. 3 while resisting the suit averred that the agreement was without consideration. She had no right to enter into such agreement at the time it was executed. The agreement was got executed by fraud played upon her by the plaintiff in collusion with the other defendants. The agreement was not specifically enforceable as there was a clause in the agreement itself providing for payment of compensation in the event of non-performance thereof on the part of the defendants. The agreement was unconscientious as the sale consideration fixed was much below the prevailing market value of the property in dispute. Time was the essence of the agreement and on the failure of the plaintiff to get the sale deed executed within the stipulated time, the advance amount stood forfeited and the plaintiff was not entitled to specific performance. The plaintiff being non-agriculturalist was not entitled to purchase the property.
9. On the pleadings of the parties, following issues were framed by the learned trial Court :--
1. Whether plaintiff is entitled to the decree of specific performance as claimed? OPP
2. Whether the defendant had no right to execute the agreement as alleged? (dated 1-10-82) OPD-3.
3. Whether the agreement was without consideration and if so its effect? OPD-3 (onus objected to).
4. Whether the agreement is a result of fraud and collusion between plaintiff and defendants No. 1, 2 and 4? OPD-3 4-A. Whether the agreement sought to be enforced is unconditional and not enforceable as alleged? OPD-3.
4-B. Whether the time was the essence of the agreement sought to be specifically enforced. If so its effect? OPD-3 4-C. Whether the plaintiff has failed to plead the necessary ingredients in question under the law as alleged? OPD-3.
5. Relief.
10. The learned trial Court found issue No. 1 in favour of the plaintiff and issues No. 2 to 4 against the defendant No. 3. Issues No. 4-A, 4-B and 4-C were held to have become redundant in view of the findings recorded under issues No. 1 to 4. Consequently, the suit of the plaintiff for specific performance and possession was decreed with costs.
11. The appeal preferred by defendant No. 3 before the learned District Judge, Shimla, was dismissed on 30-6-1997. The learned District Judge upheld the findings of the learned trial Court on all the issues.
12. During the pendency of the appeal before the learned District Judge, an application was made by defendant No. 3 for amendment of her written statement. By such proposed amendment, the defendant No. 3 intended to raise the plea as to limitation and lack of jurisdiction of the civil Courts at Shimla, in the following terms by way of preliminary objections No. 7 and 8 :--
'That the suit of the plaintiff is hopelessly barred by limitation. The alleged agreement was executed in the year 1982 and the limitation to file the suit expired in 1985. The present suit having been filed in the year 1986 is barred by limitation and deserves dismissal straightway.
That this Hon'ble Court has no jurisdiction to try and decide the suit as the parties agreed that the agreement could be specifically enforced by the plaintiff through a Court of law at Delhi. Since there has been a contract between the parties stipulating the jurisdiction to vest in Courts at Delhi, the Courts at Shimla have no jurisdiction to pass a decree for specific performance of the agreement which was admittedly executed at Delhi. The principle of law has been laid down by the Hon'ble Supreme Court of India in 1995 Supreme Court Cases, Vol. 4 para 153."
13. The learned District Judge did not permit the defendant No. 3 to amend her written statement. However even while rejecting the application for amendment, the learned District Judge did go into the question of limitation and jurisdiction and held that the suit was within limitation and also within the jurisdiction of Shimla Courts.
14. Aggrieved, the defendant No. 3 is before this Court by way of the present regular second appeal, which was admitted for hearing on 3-9-1998. No substantial questions of law, involved in the present case, were formulated at the time of admission of the appeal. Therefore, at the very outset, the learned counsel for the defendant No. 3 was called upon to point out the substantial question (s) of law arising in the present case.
15. As pointed out above, though the application made by the defendant No. 3 under Order 6, Rule 17, Code of Civil Procedure, for amendment of her written statement was dismissed by the learned District Judge, the questions of jurisdiction and limitation sought to be raised were considered and determined by the learned District Judge and specific findings have been recorded that the Civil Courts at Shimla have jurisdiction and that suit is within time. Therefore, the question whether the learned first Appellate Court has rightly rejected the application made for amendment of written statement does not arise. The learned counsel for defendant No. 3, even in this appeal has been permitted to raise the question of jurisdiction and limitation, since the two questions on the basis of pleadings of the parties can be conveniently disposed of on the basis of evidence available on the record and no further evidence is required.
16. The following substantial questions of law arise in the present case :--
1. Whether Civil Courts at Shimla have no jurisdiction?
2. Whether time was the essence of the agreement?
3. Whether the suit of the plaintiff was not within time?
4. Whether the relief of specific performance could not have been granted?
17. I have heard the learned counsel for the parties and have also gone through the record of the case. My answers to the above questions are as under :--
Question No. 1.
18. Agreement, copy of which is Ex. PW3/A, admittedly was executed at Delhi. The property agreed to be sold thereby admittedly, is situated in District Shimla. There is also no dispute that a part of cause of action has arisen both at Delhi and Shimla. The case of defendant No. 3 is that even though the civil Courts at Delhi and Shimla had the jurisdiction, the parties had agreed the jurisdiction would with the Courts at Delhi only. The learned counsel for the defendant No. 3 in support of his contention that where an agreement provides that the suit would be instituted in the Court at a particular place, even though the Court at other place (s) may also be having the jurisdiction, such an agreement is binding and valid and that the suit can be filed in the Court at the place mentioned in the agreement and at no other place, placed reliance on the ratio laid down by the Hon'ble Supreme Court in Angile Insulations v. Davy Ashmore India Ltd. (1995) 4 SCC 153 : (AIR 1995 SC 1766).
19. In the case before the Hon'ble Supreme Court, the appellants therein had initiated an action in the Court of Subordinate Judge, Dhanbad in the State of Bihar for recovery of certain amounts said to be due from the first respondent. Such suit was filed on a work contract executed by the first respondent. On filing of the suit for recovery of the amounts, the respondents therein raised an objection as regards jurisdiction of the Court and placed reliance on clause 21 of the Contract, which read :
"This work order is issued subject to the jurisdiction of the High Court situated in Bangalore in the State of Karnataka. Any legal proceeding will, therefore, fall within the jurisdiction of the above Court only."
The trial Court returned the plaint for presentation to the proper Court. The appellant carried the matter in revision to the High Court of Patna. The High Court upheld the view of the trial Court and dismissed the revision. On the matter being carried further in appeal before the Hon'ble Supreme Court. Following the ratio laid down in A.B.C. Laminart (P) Ltd. v. A. P. Agencies, Salem (1989) 2 SCC 163 : (AIR 1989 SC 1239), it was held (at page 1245 of AIR) :--
That the citizen has the right to have his legal position determined by the Ordinary Tribunal except, of course, subject to contract (a) when there is an arbitration clause which is valid and binding under the law, and (b) when the parties to a contract agree as to the jurisdiction to which dispute in respect of the contract shall be subject. This is clear from Section 28 of the Contract Act. But an agreement to and oust absolutely the jurisdiction of the Court will be unlawful and void being against the public policy under Section 23 of the Contract Act. We do not find any such invalidity of Clause (21) of the Contract pleaded in this case. On the other hand, this court laid that where there may be two or more competent Courts, which, can entertain a suit consequent upon a part of cause of action having arisen therewith, if the parties to the contract agreed to vest jurisdiction in one such court to try the dispute which might arise as between themselves, the agreement would be valid. If such contract is clear, unambiguous and explicit and not vague, it is not hit by Sections 23 and 28 of the Contract Act. This cannot be understood as parties contracting against the statute. Mercantile law and practice permit such agreement.
20. Be it stated that in coming to the above conclusion, the Hon'ble Supreme Court was dealing with the provisions contained in Section 20. Code of Civil Procedure. In view of the above ratio, before the parties can agree to vest the Jurisdiction in a particular Court, two or more Courts including the one in whom the jurisdiction is agreed to be vested, must have the jurisdiction under Section 20, Code of Civil Procedure. The parties cannot agree to vest jurisdiction in a Court which does not have the jurisdiction. Such an agreement would be against the statute and, thus, would be hit by Sections 23 and 28 of the Contract Act.
21. The Hon'ble Supreme Court in Hakam Singh v. Gammon (India) Ltd., AIR 1971 SC 740 has held that it is not open to the parties by agreement to confer by their agreement jurisdiction on a Court which it does not possess under the Code. But where two or more Courts have jurisdiction under the Code of Civil Procedure, to try a suit or proceeding on agreement between the parties that the dispute between them shall be tried in one of such Courts is not contrary to public policy. Such an agreement does not contravene Section 28 of the Contract Act.
22. Clause (5) of the agreement Ex. PW3/A in the present case reads :--
That neither of the parties shall resile from this agreement of sale and in case the 1st and 2nd party fails to execute sale deed intentionally and deliberately then they will be liable to pay the double the amount of advance, i.e. Rs. 30,000/- (rupees thirty thousand) and in case the third party fails to perform his part of the consideration within two months then the first and Second Party shall forfeit the advance amount of Rs. 15,000/-. The 3rd party shall have the rtght to get this agreement specifically enforced through Court of law at Shimla. The 1st and 2nd party shall be bound to have the mutation entered and sanctioned !n their favour at the earliest. The first and second party shall surely try to have the mutation paper extended and sanctioned in their favour at the earliest but first and second parties shall not be responsible to execute the sale deed if the mutation is not extended and sanctioned in their favour because of any reason whatsoever."
23. The above clause belies the case of defendant No. 3 that the parties had agreed to vest the jurisdiction in the Courts at Delhi.
24. A perusal of Ex. PW 3/A shows that the word "Delhi" appearing in Clause (5) has been scored off and substituted by the word "Shimla". It was contended by the learned counsel for defendant No. 3 that scoring off the word "Delhi" and substitution of the word "Shimla" in Clause (5) of the agreement was unauthorized and as a result of fraud committed by the plaintiff in connivance with other defendants.
25. It is significant to note that the defendant No. 3 has nowhere pleaded in her written statement that the scoring off the word "Delhi" and substitution of the "Shimla" in Clause (5) of agreement Ex. PW 3/A was unauthorised or fraudulent. Nor such a plea was sought to be raised by way of amendment of the written statement in the application made by her under Order 6, Rule 17. Code of Civil Procedure, before the learned first appellate Court. In the absence of necessary pleadings it is not open to defendant No. 3 to urge and contend that the scoring off the word "Delhi" and substitution of the word "Shimla" in Clause (5) of the agreement was unauthorised and/or fraudulent. The cuttings in Clause (5) are duly initialled, though it is not known as to under whose initials these cuttings have been done. Since the defendant No. 3 has not pleaded that the cuttings in Clause (5) are unauthorised and/or fraudulent, Clause (5) will have to be read as it is. The parties had agreed to the Jurisdiction of Shimla Courts.
26. There is yet another aspect of the case. The present suit being for specific performance and possession of immovable property would fall under Clause (d) of Section 16. Code of Civil Procedure, Section 16 which requires that suits are to be instituted where subject matter situate, provides :--
"16. Suits to be instituted where subject-matter situate :-- Subject to the pecuniary or other limitations prescribed by any law, suits --
(a) for the recovery of immovable property with or without rent or profits.
(b) for the partition of immovable property.
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon Immovable property.
(d) for the determination of any other right to or interest in immovable property.
(e) for compensation for wrong to immovable property.
(f) for the recovery of movable property actually under distraint or attachment.
sh'all be instituted in the Court within the local limits of whose jurisdiction the property is situate :
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.
Explanation -- In this section "property" means property situate in India."
27. In New Mofussil Co. Ltd. v. Shankerlal Narayandas Mundade, AIR 1941 Bombay 247, a joint stock company, which had its registered office in Bombay, owned a factory at Dhulia. The company was in liquidation and its liquidator, who resided in Bombay, wanted to sell the factory at Dhulia. Negotiations opened between the parties at Bombay. The vendee, who was resident of Dhulia, engaged an agent to complete the transaction. Before the transaction was completed, the liquidator put an end to the ne-.gotiations. He then subsequently sold the same factory to other persons. The vendee sued the company and subsequent purchasers of the factory for specific performance of the agreement and for possession. Such suit was filed at Dhulia. The defendants therein challenged the jurisdiction of Dhulia Court to try the suit as against the company. It was held by the Division Bench of Bombay High Court that Dhulia Court alone had jurisdiction to try the suit against the company as well as the subsequent purchasers under Section 16(d) of the Code of Civil Procedure and that the proviso to Section 16 did not apply as the suit in the form in which it was brought was not a suit in personam.
28. The High Court of Calcutta in Trustees for Improvement of Calcutta v. Bahadur Khan, AIR 1984 Calcutta 412 held that where the plaintiff wanted a determination as to his right and status in regard to the immovable property, the forum should be determined under Section 16 of the Code of Civil Procedure. Clause (d) whereof completely covers a situation like this and the suit has to be instituted in the Court within the local limits of whose jurisdiction the property is situate and the suit having come within the meaning of Section 16, the plaintiff could not file the suit elsewhere with the aid of Section 20, Code of Civil Procedure.
29. In Ananda Bazar Patrika Ltd. v. Biswanath Prasad Maitin, AIR 1986 Patna 57 it was held that a suit for specific performance of contract to sell land with prayer for possession would be governed by Section 16(d) of the Code of Civil Procedure and not by Section 20 of the Code of Civil Procedure and as such, the suit has to be instituted in the Court within the local limits of whose jurisdiction the property agreed to be sold is situate.
30. The present case as well has been filed by the plaintiff for specific performance of the agreement Ex. PW 3/A and for possession of the property agreed to be sold which is situate within the local limits of jurisdiction of Shimla Courts. Therefore, the case would fall under Clause (d) of Section 16. Code of Civil Procedure. Section 20, Code of Civil Procedure, would not be applicable to a case falling under Section 16, Code of Civil Procedure. Section 20, Code of Civil Procedure, enacts the rule as to the forums in all cases not falling within the limitation of Sections 15 to 19, Code of Civil Procedure, as is made clear by the opening words "Subject to the limitations aforesaid" appearing in Section 20. Code of Civil Procedure.
31. The Hon'ble Supreme Court in R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid since deceased, AIR 1963 SC 1 has held that the rules in Section 20, Code of Civil Procedure, deal with the territorial jurisdiction of Courts in respect of all suits other than those relating to immovable property or for movable under distrain or attachment.
32. Since the present suit under Section 16(d) of the Civil Procedure Code is maintainable only at Shimla and Section 20, Code of Civil Procedure, has no application, the parties could not by agreement have vested the jurisdiction in any other Court other than the Courts at Shimla. Therefore, even if it be assumed that the parties agreed to the jurisdiction of Delhi Courts, such agreement being against the law would be bad under Sections 23 and 28 of the Contract Act.
33. The learned District Judge, therefore, has rightly held that the Civil Courts at Shimla has the jurisdiction.
Question No. 2 :
34. It is by now well settled that in the case of agreement of sale relating to immovable property, time is not the essence of the contract unless specifically provided to that effect. (See K.S. Vidyanadam v. Vairavan, (1997) 3 SCC 1 : AIR 1997 SC 1751.
35. Clause (2) of the agreement Ex. PW 3/A, which is material for the purpose of determination of the question whether time was the essence of the agreement, reads :--
"That the 1st & 2nd party shall first have the mutation of ownership and possession entered and sanctioned in revenue papers in their favour and only thereafter the sale deed of the said property shall be executed and registered by all the parties thereto. The said sale deed shall be executed by the 1st and "2nd party in favour of 3rd party within six months from the date of mutation in their favour and 3rd party shall pay the balance of sale consideration. The 3rd party is bound to get the sale deed registered within a period of two months from the date of service of notice on the 3rd party calling him to get the sale deed registered by the First & Second party. In case, the third party fails to get the sale deed registered and fails to pay the balance amount of Rs. 57,000/- within two months from the date of service of notice, the advance payment of Rs. 15,000/-will stand forfeited by first and second party."
36. Admittedly, the necessary mutation qua the property in dispute was sanctioned in favour of the defendants on 30-11-1984. In terms of Clause (2) of the agreement, quoted above, the defendants were required to execute the necessary sale deed in favour of the plaintiff within six months from 30-11-1984. The plaintiff was bound to get the sale deed executed in his favour within two months from the date of service of notice upon him by the defendants calling upon him to get the sale deed executed.
37. There is nothing on record to show that the defendants, after the sanction of mutation in their favour, took any steps to execute and get the sale deed registered in favour of the plaintiff. The evidence coming on record rather shows that at no time they appear to have informed the plaintiff about the sanction of mutation in their favour. Admittedly, no notice as contemplated by Clause (2) of the agreement was ever served by the defendants on the plaintiff calling upon him to get the sale deed executed and registered. The conduct of the defendants themselves shows that even according to them, time was not the essence of the agreement.
Question No. 3 :
38. Article 54, Limitation Act, 1963 prescribes a period of limitation of three years for a suit for specific performance of a contract. Such period is to be reckoned from the date fixed for performance of the contract, and in case no date for such performance is fixed, then from the date the plaintiff has noticed that performance is refused.
39. In the present case, no specific date for the execution of the sale deed was fixed. The sale was contingent upon the sanctioning of mutation qua the property agreed to be sold in favour of the defendants. It is specifically stipulated in the agreement that the defendants would execute the sale deed in favour of the plaintiff within six months from the date of sanction of mutation in their favour. Admittedly, the mutation was sanctioned in favour of the defendants on 30-11-1984. Therefore, the sale deed was required to be executed by 30-5-1985. Therefore, a suit for specific performance could be filed by 30-5-1988, that is, within three years from 30-5-1985. The present suit was filed on 24-6-1986. The same is within time. Even if the period of limitation is reckoned from the date of sanction of mutation in favour of defendants, that is, 30-11-1984, the suit is within time.
Question No. 4 :
40. It is contended on behalf of defendant No. 3, that the discretionary relief of specific performance ought not to have been granted in favour of the plaintiff by the two Courts below In view of the specific stipulation contained in Clause (5) of the agreement providing for contingencies of (i) vendors refusing to sell, and (ii) vendee refusing to buy by stipulating the return of double the amount of advance on the failure/refusal of the vendors (defendants) to execute the sale deed. In support of his contention the learned counsel for defendant placed reliance on the ratio laid down by the Hon'ble Supreme Court In Dadaraov. Ramrao (1999) 8 SCC 416 : 1999 AIR SCW 4818 :
41. In the case reliance has been placed by the learned counsel for the defendant, the agreement stipulated :--
"......A sale deed shall be made by me at my cost by 15-4-1972. In case the sale deed is not made to you or if you refuse to accept, in addition to earnest money an amount of Rs. 500/- shall be given or taken and no sale deed will be executed........"
42. Interpreting the above clause, the Hon'ble Supreme Court held (at page 4819 of AIR SCW):--
"The relationship between the parties has to be regulated by the terms of the agreement between them. Whereas the defendants in the suit had taken up the stand that the agreement dated 24-4-1969 was really in the nature or a loan transaction. It is the plaintiff who contended that it was an agreement to sell. As we read the agreement, it contemplates that on or before 15-4-1972 the sale deed would be executed. But what is important is that the agreement itself provides as to what is to happen if either the seller refuses to sell or the purchaser refuses to buy. In that event the agreement provides that in addition to the earnest money of Rs. 1000 a sum of Rs. 500 was to be given back to Tukaram Devsarkar and that 'no sale deed will be executed'. The agreement is very categorical in envisaging that a sale deed is to be executed only if both the parties agree to do so and in the event of any one of them resiling from the same there was to be no question of the other party being compelled to go ahead with the execution of the sale deed. In the event of the sale deed not being executed, Rs. 500 in addition to the return of Rs. 1000, was the only sum payable. This sum of Rs. 500 perhaps represented the amount of quantified damages or, as the defendants would have it, interest payable on Rs. 1000.
If the agreement had not stipulated as to what is to happen in the event of the sale not going through, then perhaps the plaintiff could have asked the Court for a decree of specific performance but here the parties to the agreement had agreed that even if the seller did not want to execute the sale deed he would only be required to refund the amount of Rs. 1000 plus pay Rs. 500 in addition thereto. There was thus no obligation on Balwantrao to complete the sale transaction."
43. The above ratio does not help the case of the defendant No. 3, rather it goes against her. In the present case, Clause (5) of the agreement contains a specific stipulation that the plaintiff shall have a right to get the agreement specifically enforced through a Court of law. This right was reserved with the plaintiff in addition to the right to recover an amount double the amount of advance of Rs. 15000/- paid by the plaintiff at the time of the agreement.
44. It has next been contended on behalf of the defendant No. 3 that the agreement Ex. PW 3/A was executed in the year 1982. More than nineteen years have since passed. In the mean while prices of real estates especially urban properties have increased many fold and as such it would neither be just nor equitable to grant specific performance of the agreement at this stage and that ends of justice would be met if the defendants are directed to pay back the amount in terms of Clause (5) of the agreement. In support, the learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in K.S. Vidyanadam v. Vairavan, (1997) 3 SCC 1 : AIR 1997 SC 1751.
45. In the case before the Hon'ble Supreme Court, the specific performance of the agreement was refused since the plaintiff therein was found to be guilt of inaction for a period of 2 1/2 years after initial payment of a small amount as earnest money by him. This inaction on the part of the plaintiff weighed against the exercise of a discretion for grant of specific performance of the agreement in favour of the plaintiff.
46. In the present case, the plaintiff is not to be blamed for the delay. Though the agreement Ex. PW 3/A was executed on 1-10-1982, the necessary mutation in favour of the defendants was sanctioned only on 30-11-1984. The sale deed was to be executed by the defendants only after the sanction of such mutation in their favour. While discussing question No. 2 above, it has been observed that the defendants after the sanction of mutation had never informed the plaintiff in this regard. The defendant even failed to serve the notice on the plaintiff as stipulated in Clause (2) of the agreement calling upon him to get the sale deed executed and registered in his favour. Rather the plaintiff on coming to know about the sanctioning of mutation in favour of the defendants on 17-9-1985 had served a notice Ex, PW 4/A upon them calling upon them to execute the sale deed in his favour on or before 5-10-1985. The defendants did not respond to such notice. No reply was even given by them. As a result the present suit was on 24-6-1986. Since the defendant themselves were guilty of inaction, they cannot be permitted to take advantage of their own inaction. The discretionary relief of specific performance of the agreement was, therefore, rightly granted by the two Courts below in favour of the plaintiff inasmuch as the defendants themselves are to be blamed for the delay.
47. The two Courts below have concurrently found that the plaintiff has been and is willing and ready to perform his part of the agreement. Such findings being purely on a question of fact cannot be interfered with in the present second appeal. The delay in the performance of the contract is not attributable to the plaintiff. Therefore, specific performance of the agreement Ex, PW 3/A cannot be denied to the plaintiff merely on the ground that there has been considerable rise in prices of the real estates during the period the litigation remained pending between the parties. (See S. V.R. Mudaliar (dead) by LRs. v. Mrs. Rajabu F. Buhari (Dead) by LRs. AIR 1995 SC 1607.
48. There is yet another significant aspect of the case. Defendant No. 3 has not stepped into the witness box to depose in support of her case and to subject herself to cross-examination. It has been held by the Hon'ble Supreme Court in Ishwar Bhai C. Patel v. Harihar Behara 1999 (2) Current Civil Cases 171 (SC) : (AIR 1999 SC 1341) that if a defendant does not enter the witness box to make a statement on oath in support of the pleadings set out in the written statement, an adverse inference would arise that what he had stated in the written statement was not correct. In the present case as well on the failure of defendant No. 3 to step into the witness box, an adverse inference will have to be drawn against her that the case set up by her is not true,
49. Though husband of defendant No. 3 has appeared as DW 1 as her attorney, he cannot be treated as having appeared in the capacity of a defendant, his appearance is only as a witness in his personal capacity. To the similar effect it has been held by this Court in Gurdev Singh v. Gulaboo 2000 (3) Shim LC 285.
50. For the foregoing reasons, the present appeal fails and the same is dismissed leaving the parties to bear their own costs.