Punjab-Haryana High Court
Suraj Mal vs Ram Kishan on 28 January, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
RSA No.293 of 2014
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.293 of 2014 (O&M)
Date of decision: 28.01.2014
Suraj Mal
....Appellant
Versus
Ram Kishan
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?
2) To be referred to the Reporters or not ?
3) Whether the judgment should be reported in the Digest ?
Present: - Mr. Ashok K. Sharma, Advocate, for the appellant.
*****
PARAMJEET SINGH, J.
CM No.692-C of 2014 For the reasons stated in the application, CM is allowed. Delay of 227 days in refiling the appeal is condoned. CM No.694-C of 2014 For the reasons stated in the application, CM is allowed. Delay of 67 days in filing the appeal is condoned.
RSA No.293 of 2014
This regular second appeal is directed against the judgment and decree dated 24.09.2012 passed by learned Additional District Judge, Jind, whereby the appeal preferred by the appellant/defendant has been dismissed and the cross-objections filed by respondent/plaintiff Singh Ravinder 2014.02.17 15:41 I attest to the accuracy and integrity of this document Chandigarh -2- RSA No.293 of 2014 have been allowed and decree of specific performance has been passed by setting aside the judgment and decree dated 22.09.2010 passed by learned Additional Civil Judge (Senior Division), Jind, whereby only alternative relief of recovery of money with interest was granted.
The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced in detail. However, the facts relevant for disposal of this regular second appeal are to the effect that respondent/plaintiff instituted a suit for specific performance on the basis of agreement to sell dated 04.10.2004 executed by appellant/defendant for sale of plot/house measuring 50 sq. yards described in the headnote of the plaint, for a total sale consideration of `70,000/-. After having received the full sale consideration, defendant agreed to get the sale deed executed and registered in favour of the plaintiff as and when desired by the plaintiff. Sale deed was not executed by the defendant rather he filed a suit for permanent injuntion against the plaintiff and his son Sandeep titled 'Suraj Mal vs. Krishan etc.' and also got registered FIR against the plaintiff. Plaintiff was assaulted by defendant, his son and wife Pinki on 29.08.2006. Plaintiff also filed complaint against the defendant, his son and wife. Instead of executing the sale deed, defendant threatened the plaintiff to further implicate him in other cases. Thereafter the present suit was filed.
Upon notice, defendant appeared and filed written statement taking preliminary objections inter alia contending that suit is not Singh Ravinder 2014.02.17 15:41 I attest to the accuracy and integrity of this document Chandigarh -3- RSA No.293 of 2014 maintainable, plaintiff has no cause of action to file the suit, plaintiff is estopped by his own act and conduct from filing the suit and the suit is counter-blast to the earlier suit filed by the defendant against the plaintiff. On merits, defendant denied the agreement to sell in favour of the plaintiff. It was averred that alleged agreement is false, fake, forged, fraudulent and fabricated document and does not bear the signatures/thumb impression of the defendant, his wife and son. Defendant is owner in actual physical possession of the suit land and when the plaintiff tried to trespass on the suit land, suit for permanent injunction was filed. It was alleged that defendant is running a small dairy and selling milk of his buffalo and earning his livelihood. Plaintiff deposited `30,000/- with the defendant and asked to supply milk. In this way, plaintiff purchased milk from the defendant daily @ `60/- upto 18 months and thus defendant supplied milk to the plaintiff for `32,400/-. It is also alleged that defendant did labour work for the plaintiff but he was not paid but during this period plaintiff obtained his signatures on blank papers. Defendant had already paid to plaintiff a sum of `84,000/- (including price of milk and labour done) but since plaintiff failed to settle the account with defendant, he filed the suit for specific performance.
Replication was filed by the plaintiff denying the averments in the written statement and reiterating the averments in the plaint.
Court of first instance, on the basis of pleadings of the parties, framed following issues: -
Singh Ravinder 2014.02.17 15:41 I attest to the accuracy and integrity of this document Chandigarh -4- RSA No.293 of 2014
"1. Whether the defendant on 4.10.2004 executed an agreement to sell the suit property for a total consideration of Rs.70,000/- and received the total sale price? OPP
2. If issue No.1 is proved, whether the plaintiff is and was ready and willing to perform his part of contract if so to what effect? OPP
3. If the issue No.1 and 2 are proved, whether the defendant is liable to execute the sale deed of the suit property and plaintiff is liable to supply the stamp and registration charges? OPP
4. Whether the suit of the plaintiff is not maintainable?
OPD
5. Whether the plaintiff has no cause of action and no locus standi to file the present suit? OPD
6. Whether the suit is counter blast of the civil and criminal litigation pending between the parties and as such suit is false and frivolous and is liable to be dismissed? OPD
7. Whether the plaintiff is estopped to file the present suit by his own act and conduct? OPD
8. Relief."
Parties led their respective evidence. The Court of first instance, after appreciating evidence on record decreed the suit of the plaintiff for alternative relief of recovery of `70,000/- with interest at the rate of 18% per annum from the date of execution of agreement to sell till the date of realization of the amount along with `20,000/- towards damages and also directed the plaintiff to hand over the vacant possession of the suit property to the defendant within 15 days of the Singh Ravinder 2014.02.17 15:41 I attest to the accuracy and integrity of this document Chandigarh -5- RSA No.293 of 2014 receipt of aforesaid amount. Against the judgment and decree of the Court of first instance, appellant/defendant preferred an appeal in which cross-objections were filed by the respondent/plaintiff claiming that he is entitled to specific performance. Lower appellate Court dismissed the appeal filed by appellant/defendant and the cross-objections filed by respondent/plaintiff have been alowed. Hence this regular second appeal.
I have heard learned counsel for the appellant and perused the record.
Learned counsel for the appellant contended that substantial questions of law have been framed in para No.17 of the grounds of appeal, which read as under: -
"1. Whether the agreement to sell Ex.P2 is unregistered and the plaintiff is not entitled for specific performance of the contract on the basis of Ex.P2?
2. Whether the appellant is in possession of the property in question and the respondent did not take the possession of the land at the time of alleged full and final payment as per agreement to sell Ex.P2?
3. Whether suit for specific performance filed by the respondent is/was barred by limitation as the same was not filed within three years?
4. Whether the agreement to sell Ex.P2 is bogus, fake and fabricated one?
5. Whether the impugned judgments and decrees passed by the learned Courts below are per se illegal and the findings recorded therein are perverse and un-sustainable in the eyes of law?"Singh Ravinder 2014.02.17 15:41 I attest to the accuracy and integrity of this document Chandigarh -6- RSA No.293 of 2014
Admittedly, execution of agreement to sell dated 04.10.2004 has been duly proved on record. Findings in this regard are concurrent. Only issue is with regard to grant of specific performance. The case of the defendant was that the agreement is the result of fraud. The Court of first instance has refused specific performance only on the ground that Ex.P3 is not a registered document, therefore, it cannot be used for specific performance. This Court in Mool Chand Mundhra v. Smt. Indu Bala, 2011(3) CCC 660 and Didar Singh v. Nasib Kaur and others, 2012(2) CCC 428 has held that non-registration of an agreement does not make it completely null and void. It can be used for any purpose except for the purpose under Section 53-A of the Transfer of Property Act. The finding of the Court of first instance that agreement is not registered so specific performance cannot be granted, has been rightly set aside by the lower appellate Court. Once the agreement has been duly proved, decree for specific performance could not have been refused on only ground that agreement to sell was unregistered. Discretion by the Court cannot be exercised in arbitrary manner. Alternative relief can only be granted where there is specific justification for the same.
Learned counsel for the appellant has failed to show that the findings recorded by lower appellate Court are perverse or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record.
In view of above, no question of law, muchless substantial Singh Ravinder 2014.02.17 15:41 I attest to the accuracy and integrity of this document Chandigarh -7- RSA No.293 of 2014 question of law, as alleged, arises in the present appeal.
Dismissed in limine.
(Paramjeet Singh) Judge January 28, 2014 R.S. Singh Ravinder 2014.02.17 15:41 I attest to the accuracy and integrity of this document Chandigarh