Delhi District Court
Balbir Singh vs Rajesh Anand on 29 July, 2016
Balbir Singh & Ors. v. Rajesh Anand & Ors.
IN THE COURT OF SH. V.K. JHA: CIVIL JUDGE12 (CENTRAL), ROOM NO.366,
TIS HAZARI COURTS, DELHI
SUIT NO : 94411/16 (OLD NO.211/16)
In the matter of :
Unique ID Number : 02401C0153511999
1.Balbir Singh S/o Late Sh. S.S. Duggal
2. Amarjit Singh, S/o Sh. S.S. Duggal Both residents of: B1/277, Janakpuri, New Delhi.
3. Niranjan Kaur W/o Late Sh. S.S. Duggal B1/277, Janakpuri, New Delhi.
4. Gurmeet Kaur W/o Sarup Singh R/o B1/204, Janakpuri, New Delhi.
5. Harpreet Kaur W/o Late Laskar Singh R/o SFS Flats, Punjabi Bagh, Rohtak Road, New Delhi.
6. Jasbir Kaur W/o Harbans Singh R/o BA39B, DDA Flats, Janakpuri, New Delhi.
7. Paramjit Kaur W/o Sh. Hardev Singh R/o F34, Janakpuri, New Delhi. ...PLAINTIFFS VERSUS
1. Rajesh Anand
2. Ved Prakash Anand
3. Rakesh Anand
4. Subhash Anand
5. Ramesh Anand All sons of Late Sh. Faquir Chand SUIT NO : 94411/16 (OLD NO.211/16) pg 1 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
R/o Nadi Mohalla, Lalitpur, Distt. Lalitpur, UP. ...DEFENDANTS
Date of institution : 14.12.1999
Date of judgment : 29.07.2016
SUIT FOR SPECIFIC PERFORMANCE WITH CONSEQUENTIAL RELIEF OF PERMANENT INJUNCTION J U D G M E N T
1. By this judgment I shall dispose of the suit for specific performance with consequential relief of permanent injunction filed by the Plaintiff.
2. The plaintiffs shall be referred as only plaintiff and the defendants as defendant only. In brief the case of the Plaintiff is that Sh. Faquir Chand; the father of the defendant and Sh. K.L. Bhasin and Sh. Jaggan Nath Chadha were the joint owners of the land comprising two thousand sq.yds. (two bighas) in Khasra no. 465/1 and 465/2, situated in village, Mehrauli, Delhi (herein after referred to as the suit property). Sh. Faquir Chand, Sh. Jaggan Nath Chadha and Sh. K.L. Bhasin had agreed to sell the suit property to Sh. S.S. Duggal; the father of the plaintiffs No.1, 2 and 3 and each of them had received a sum of Rs.5,000/ as earnest money from Sh. S.S. Duggal. However, at the time of sale, Sh. Faquir Chand backed out from the agreement so Sh. S.S. Duggal got executed two sale deeds dated 07.09.1981 from Sh. Jaggan Nath Chadha and Sh K.L. Bhasin for their shares. In the suit SUIT NO : 94411/16 (OLD NO.211/16) pg 2 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
property one Sh. Sat Bhushan was the tenant whom Sh. S.S. Duggal paid a sum of Rs.75,000/ and got executed the surrender deed and so, Sh. S.S. Duggal came into the possession of the suit property. Thereafter, it is averred in the plaint that Sh. S.S. Duggal took the possession of 1/3 share of Sh. Faquir Chand in the suit property and since then Sh. S.S. Duggal remained in possession of the suit property towards part performance of agreement entered into with Sh. Faquir chand. It is stated that there was no written agreement between Sh. Faquir Chand and Sh. S.S. Duggal and as such the said agreement does not subsist. Thereafter, Sh. Faquir Chand filed a suit for partition bearing no.1548/337/81, titled as Sh. Faquir chand v. Sh. K.L. Bhasin and Others. During the pendency of the said suit Sh. Faquir Chand compromised the matter with Sh. S.S. Duggal and agreed to sell his 1/3 share in the suit property for total sale consideration of Rs. 60,000/ and Sh. Faquir Chand executed an agreement to sell dated 02.06.1984 in favour of Sh. S.S. Duggal out of the total sale consideration a sum of Rs.10,000/ as advance money was received by Sh. Faquir Chand in presence of two witnesses and a separate receipt duly stamped and singed was executed in favour of Sh. S.S. Duggal. It is further the case of the plaintiff that assurance was given by Sh. Faquir Chand that Sh. Faquir Chand would withdraw the SUIT NO : 94411/16 (OLD NO.211/16) pg 3 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
suit bearing no.1548/337/81. The plaintiff avers regarding certain terms and conditions which were in the agreement dated 02.06.1984 which were to be complied and it is further the case of the plaintiff that in the agreement dated 02.06.1984 no time was fixed for the execution of the sale deed and the time was not the essence of the contract. It is further the case of the plaintiff that Sh. S.S. Duggal was under the impression that Sh. Faquir Chand would have withdrawn the suit and under the said impression Sh. S.S. Duggal did not appear in the court where the suit bearing no. 1548/337/81 was pending. The grievance of the plaintiff is that Sh. Faquir Chand with malafide intention by way of taking undue advantage of the 'simplicity' of Sh. S.S. Duggal got the suit decreed exparte on 30.04.1988 and filed and execution petition for the execution of the said decree. As per the averments in the plaint Sh. S.S. Duggal expired on 20.09.1996 and Sh. Faquir Chand expired on 16.12.1997 and after their deaths the legal heirs of both have stepped into their shoes with respect to rights and obligation in the agreement dated 02.06.1984. It is further the case of the plaintiff that on 15.12.1997 the Halka Patwari informed the plaintiff that a suit for partition was decreed against Sh. S.S. Duggal and Halka Patwari was directed by the executing court to carry out the measurement/demarcation with respect to 1/3 share of Sh. Faquir Chand.
SUIT NO : 94411/16 (OLD NO.211/16) pg 4 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
The plaintiff contacted his counsel and on 22.12.1997 moved an application for stay in the execution proceedings in the suit bearing no.1548/337/81. The plaintiff filed a suit for declaration for declaring the decree in suit bearing no.1548/337/81 as null and void which was dismissed on 11.03.1999 with the alleged observation that the plaintiff should have filed a suit for specific performance of the agreement to sell dated 02.06.1984. it is further the case of the plaintiff that on 10.12.1997 the plaintiff visited Sh. Faquir Chand and informed him regarding the death of Sh. S.S. Duggal and requested Sh. Faquir Chand to execute the sale deed which was refused. It is further the case of the plaintiff that Sh. S.S. Duggal was ready and willing to perform his part of the contract and after his death even the plaintiff is ready and willing to perform his part of the contract. In these facts and circumstances the present suit was filed on 14.12.1999 for the following reliefs:
1. That the suit be decreed in favour of the plaintiff and the performa defendants against the defendants on the basis of agreement to sell dated 02.06.1984 in respect of 1/3rd share in land comprising of Two Thousand sq. Yards (Two Bighas) in Khasra No.465/1 and 465/2 situated in Villge Khanpur Mehrauli, Delhi and the defendants be directed to execute the sale deed in respect of the aforesaid property n favour of the plaintiff and the performa defendants. In case the defendants fail to execute the said sale deed, this Hon'ble Court may kindly be pleased to appoint a local commissioner to execute the said sale deed in favour of the plaintiff and the performa defendants.
2. The defendants may kindly be restrained from transferring, mortgaging SUIT NO : 94411/16 (OLD NO.211/16) pg 5 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
and alienating the aforesaid property in any manner whatsoever by way of permanent injunction.
3. The defendants, their agents or servants may kindly be restrained from interfering in the peaceful; physical possession of plaintiff in the said property.
4. Cost of the suit may also be awarded in favour of the plaintiff and performa defendants against the defendants.
8. In the written statement filed on behalf of the defendant various preliminary objections have been taken as to the nonmaintainability of the suit of the plaintiff on the grounds of sections 10 and 11 of Code of Civil Procedure; the suit being barred by limitation, suit not been properly valued for the purpose of court fee and jurisdiction. It is also the defense of the defendant that neither any agreement to sell was ever executed nor any amount was received by Sh. Faquir Chand and that the case of the plaintiff is without any cause of action. It is also averred that the present suit of the plaintiff is not maintainable as Sh. S.S. Duggal was got served summons by way of publication in suit no. 1548/1981 filed by Sh. Faquir chand and as no appearance by Sh. S.S. Duggal was put up before the court, Sh. S.S. Duggal was proceeded exparte on 25.05.1982. An exparte preliminary decree for partition was passed in favour of the Sh. Faquir Chand. Thereafter, a local commissioner was appointed and Sh. S.S. Duggal put up his appearance through his advocate SUIT NO : 94411/16 (OLD NO.211/16) pg 6 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
Sh. D.K. Goel. On the representation of Sh. S.S. Duggal exparte decree was set aside vide order dated 28.03.1983 and Sh. S.S. Duggal filed his written statement and contested the suit. On 29.04.1985, as none on behalf of Sh. S.S. Duggal appeared before the court, the defense of Sh. S.S. Duggal was struck off and the decree was passed on 30.04.1985 (SIC). It is the specific case of the defendants that no agreement for sale was ever executed by Sh. Faquir chand in favour of Sh. S.S. Duggal no amount was received by Sh. Faquir Chand. The alleged agreement dated 02.06.1984 and receipt according to the defendants are false and fabricated. On merits the defendants have essential denied the material averments of the plaint and the case of the plaintiff.
9. The plaintiffs have not filed any replication to the written statement of the defendants.
10. After the completion of the pleadings vide order dated 12.12.2001 following issues were framed:
1. Whether the suit of the plaintiff is not maintainable as is devoid of cause of action?
OPD.
2. Whether the suit of the plaintiff is barred by Section 10 of CPC as another matter between the same parties onthe same cause of action is SUIT NO : 94411/16 (OLD NO.211/16) pg 7 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
previously filed by defendant before Ld. ADJ?
OPD.
3. Whether the suit of plaintiff is barred by Section 11 of CPC as claimed? OPD.
4. Whether the suit is barred by limitation? OPD.
5. Whether the suit of the plaintiff is barred by acquiescene and estoppel? OPD.
6. Whether the suit is not maintainable as not properly valued for the purpose of court fees and jurisdiction as claimed? OPD.
7. Whether the parties did not enter in any agreement for sale as alleged and hence the suit is not maintainable? OPD.
8. Whether the plaintiff is entitled to the relief of specific performance as claimed? OPD.
9. Whether the plaintiff is entitled to the relief of permanent injunction as prayed? OPP.
10.Any other relief.
11. To prove the case plaintiff examined himself and was duly cross examined by the counsel for the defendants. He relied on following documents:
1. Ex.PW1/1 certified copy of agreement to sell.
2. Ex.PW1/2 certified copy of receipt.
3. Ex.PW1/3 certified copy of exparte judgment dated 11.03.1998 SUIT NO : 94411/16 (OLD NO.211/16) pg 8 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
passed by Sh. Lal Singh, the then Ld. Addl. District Judge in suit No.147/97 titled "Balbir Singh Duggal v. Faquir Chand".
4. Ex.PW1/4 certified copy of ordersheet dated 26.07.1984.
5. Ex.PW1/5 certified copy of judgment dated 30.04.1985 passed by Sh. R.K. Sain, the then Ld. Addl. District Judge in suit No.337/81 titled "Fakir Chand v. K.L. Bhasin & Ors."
12. Plaintiff to prove his documents examined Sh. Sanjay Kumar, LDC, Record Room Sessions, Tis Hazari Courts, Delhi as PW2, who had brought the summoned record.
13. Sh. Balwan Singh is PW3 who examined himself by way of affidavit Ex.PW3/A who is the Document Examiner. He relied on following documents:
1. Ex.PW3/1 five negatives of photographs.
2. Ex.PW3/2 five enlarged photographs.
3. Ex.PW3/3 opinion report.
14. On the other hand, to prove their case defendant examined only one witness Sh. Subhash Anand, defendant No.4 as DW1 by way of his affidvit Ex.DW1/A. My issue wise opinion are as follows: SUIT NO : 94411/16 (OLD NO.211/16) pg 9 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
ISSUE NO.1 Whether the suit of the plaintiff is not maintainable as is devoid of cause of action? OPD.
15. The plaintiff has filed the present suit for specific performance agreement dated 02.06.1984 allegedly executed between Sh. Faquir Chand and Sh. S.S. Duggal; the predecessor in interest of the parties to the suit. Even if all the defences which have been taken by the defendants in the written statement are taken to be true then also, it cannot be said that the suit of the plaintiff is without any cause of action. Stated simply, cause of action' means a right to sue. It consists of material facts which are imperative for the plaintiff to allege and prove. It, however, will not include facts which may be proved by evidence. Similarly, it has no relation which the defendant might be required to prove. Though the expression "cause of action" has not been defined in the Code, it may be described as '' a bundle of essential facts, which it is necessary for the plaintiff to prove before he can succeed '', or ''which gives the plaintiff right to relief against the defendant'' . (Ref. State of Madras v. C. P. Agencies, AIR 1960 SC 1309; A. K. Gupta v. Damodar Valley Corpn., AIR 1967 SC 96). Whether or not any agreement between Sh. Faquir Chand and Sh. S.S. Duggal was executed or not, if executed whether the present suit is time barred or is SUIT NO : 94411/16 (OLD NO.211/16) pg 10 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
barred because of section 11 of Code of Civil Procedure etc. cannot; even if the defences are true would make the suit of the plaintiff without any cause of action. Whether the case of the plaintiff is true or not, whether the plaintiff is not able to establish his case after the trial or not has nothing to do with cause of action. To find out cause of action all the court is required to see is, if the facts as stated by the plaintiff in the plaint is taken to be true whether the plaintiff is entitled for all or any of the reliefs which have been claimed by the plaintiff in the suit.
16. The issue under discussion is decided in favour of the plaintiff and against the defendant.
ISSUE NO.2 Whether the suit of the plaintiff is barred by Section 10 of CPC as another matter between the same parties onthe same cause of action is previously filed by defendant before Ld. ADJ? OPD.
17. Section 10 deals with stay of civil suits. It provides that where a suit is instituted in a court to which the provisions of the Code of Civil Procedure apply, the court will not proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties and that the court in which the previous suit is pending is competent to grant the relief claimed. The provisions of Section 10 SUIT NO : 94411/16 (OLD NO.211/16) pg 11 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
are clear, definite and mandatory. A court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 are fulfilled. Whether the provisions of section 10 is applicable or not it is imperative that the pleadings of the previous suit be filed so that it could be perused and found out if the necessary ingredients of section 10 of Code of Civil Procedure are attracted or not. In the present suit, the defendant has not filed the pleadings of the previous suit therefore this court is unable to come to the decisions that the present suit is barred under section 10 of Code of Civil Procedure.
18. The issue under discussion is decided against the defendant and in favour of the plaintiff.
ISSUE NO.3 Whether the suit of plaintiff is barred by Section 11 of CPC as claimed? OPD.
19. The bar of resjudicata as embodied in section 11 of Code of Civil Procedure has been taken by the defendants on the ground that the matter in the present suit is same as in the suit no. 147 of 1997 and the parties were also the same. The Hon'ble Supreme Court in Isher Singh v. Sarwan Singh 1965 AIR (SC) 948 has observed that question of applicability of resjudicata has to be decided on the basis of the pleading of the former suit. In Gurbux Singh v.
SUIT NO : 94411/16 (OLD NO.211/16) pg 12 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
Bhooralal 1964 AIR (SC) 1810, the Hon'ble Supreme Court has observed that plea of resjudicata is based on the existence of a former pleading and the plea of resjudicata has to be established satisfactorily by the defendant and it cannot be presumed on the basis of inferential reasoning. Therefore, the defendant was required to file the pleadings in the previous suit.
20. In the present suit, the PW1/3 is the judgment in the suit no.147/1997. The defendant has not filed the pleadings of the previous suit on the basis of which the bar of resjudicata has been raised. In the absence of the pleadings of the suit no. 147/1997, this court is unable to decide the issue of res judicata.
21. The issue under discussion is decided in favour of the plaintiff and against the defendant.
ISSUES NO.4 & 8 Whether the suit is barred by limitation? OPD.
Whether the plaintiff is entitled to the relief of specific performance as claimed? OPP.
22. Both these issues are taken up together as they are interconnected. The plaintiff has filed the present suit for specific performance of agreement dated 02.06.1984 allegedly executed between Sh. Faquir Chand and Sh. S.S. SUIT NO : 94411/16 (OLD NO.211/16) pg 13 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
Duggal on 01.06.1998.
23. As per article 54 of the Limitation Act, the period for limitation for the enforcement of specific performance is three years and the time from which the period of limitation begins to run which is the date fixed for the performance or if no such date is fixed; when the plaintiff has noticed that the performance is refused.
24. Sh. Faquir Chand had filed the suit for partition bearing No.1548/337/81 titled Faquir Chand v. K.L. Bhasin & Ors. During the pendency of the said suit Sh. Faquir Chand had compromised the matter with Sh. S.S. Duggal (deceased father of plaintiff No.1) and agreed to sell his 1/3rd share in the agriculture land for the sale consideration of Rs.60,000/. Faquir Chand had executed agreement to sell dated 02.06.1984 in favour of Sh. S.S. Duggal for total sale consideration of Rs.60,000/ out of which a sum of Rs.10,000/ as advance money was received by Sh. Faquir Chand. From the examination in chief of PW1 it is very much clear that the suit in which the agreement dated 02.06.1984 was entered into, the father of the plaintiffs Sh. S.S. Duggal was party in the said suit and as per the agreement Sh. Faquir Chand was to withdraw his suit. It is also deposed by PW1 that after the agreement the father of the plaintiff stopped attending the case filed by Sh. Faquir Chand. In SUIT NO : 94411/16 (OLD NO.211/16) pg 14 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
December, 1997, plaintiff came to know from Patwari that Sh. Faquir Chand had obtained some decree dated 20.12.1997.
25. The agreement on the basis of which present suit for specific performance has been filed is not an agreement simplicitor for the sale of the land. Ex.PW1/1 that is the agreement dated 02.06.1984 on page 2 stipulates:
"that there is a case which is pending in the court of Addl. Session Judge, Delhi, regarding the said share of the said land and the vendor will withdraw the said case.
After the withdraw of the said case, the vendor shall obtain the no objection certificate and income tax clearance certificate from the authorities concerned.
After completing all the aforesaid formalities (i.e. withdraw of case, obtaining the no objection certificate and income tax clearance certificate), the vendor will inform the vendee by registered post.
That within fifteen days from the date of the receipt of the said information to the vendee, the vendor will execute the sale deed of the said land in favour of the vendee or his nominee/s, failing which the vendee will be entitled to get the sale deed registered through the court of law by specific performance of the contract, at the cost and expenses of the vendor."
26. Ex.PW1/1 that is the agreement dated 02.06.1984 has the recitation regarding a case which is pending in the court of Ld. ADJ, regarding the share of Sh. Faquir Chand which the agreement stipulates that Faquir Chand would withdraw. Without doubt the case which is referred to in Ex. PW1/1 is the suit SUIT NO : 94411/16 (OLD NO.211/16) pg 15 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
bearing no. 1548/337/81 which is referred to by the plaintiff in the plaint. In the examination in chief of PW1, the suit no. has not been mentioned, but in all probability the alleged agreement Ex.PW1/1 was executed in the suit no. 1548/337/81. The pleadings of the said suit has neither been filed either by the plaintiff or the defendant. The plaintiff has filed the order sheets and the judgment as Ex.PW1/4 and PW1/5 which was objected to by the counsel for the defendant. It was incumbent upon the plaintiff to prove Ex.PW1/4 and Ex.PW1/5 by calling the records which the plaintiff has not done.
27. It was further stipulated in Ex.PW1/1 that after the withdrawal of the said case Faquir Chand would obtain the NOC and income tax clearance certificate from the concerned authorities.
28. It is after complying all the formalities that is withdrawal of the case, obtaining NOC and Tax clearance, Faquir Chand would inform Sh. S.S. Duggal by registered posts and then only the question of execution of sale deed between Sh. Faquir Chand and Sh. S.S. Duggal would come.
29. The agreement to sell dated 02.06.1984 was not an agreement to sell simplicitor, but it was a contingent agreement as defined in section 31 of Indian Contract Act. The said provision defines a contingent agreement as: A contingent contract is a contract to do or not to do something, if SUIT NO : 94411/16 (OLD NO.211/16) pg 16 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
some event, collateral to such contract, does or does not happen The illustration which is appended to the section 31 is:
A contracts to pay to B Rs. 10,000 if B's house is burnt. This is a contingent contract.
30. The agreement Ex.PW1/1 was contingent upon Sh. Faquir Chand withdrawing the case which was pending in the court of Ld. ADJ.
31. It is not the case of the plaintiff that Faquir Chand withdrew the case. The said case culminated in a decree and it may be pointed out that in the said case Sh. S.S. Duggal was also the party, therefore, logically the knowledge all the proceedings of the said case has to be imputed to Sh. S.S. Duggal and the plaintiffs who are deriving their rights through Sh. S.S. Duggal.
32. After the execution of the agreement dated 02.06.1984 the moment the suit was not withdrawn the right to sue accrued to the plaintiff and the limitation period started to run for the enforcement of the agreement dated 02.06.1984. The moment the suit was decreed the right of the plaintiff (S.S. Duggal) in the said suit got extinguished for the transfer of the property as mentioned in the said agreement in view of Section 32 of the Indian Contract Act which provides for enforcement of contracts contingent on an event happening. The SUIT NO : 94411/16 (OLD NO.211/16) pg 17 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
agreement dated 02.06.1984 was contingent upon that fact of Sh. Faquir Chand withdrawing the suit. The relevant part of the agreement dated 02.06.1984 are, "After the withdraw of the said case, the vendor (that is Sh. Faquir Chand) shall obtain the no objection certificate and income tax clearance certificate from the authorities concerned." The said suit was not withdrawn by Sh. Faquir Chand therefore section 32 of the Indian Contract Act came into effect which provides;
Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened.
If the event becomes impossible, such contracts become void.
33. As after the decree of the suit in which the agreement dated 02.06.1984 was allegedly executed in which one of the terms of the agreement was that Sh. Faquir Chand would withdraw the said case; when Sh. Faquir Chand did not withdraw the said case the 'event of withdrawing the said case' became impossible and the agreement dated 02.06.1984 became void. After the agreement dated 02.06.1984 became void same cannot be specifically enforced and any suit file on the basis of the agreement dated 02.06.1984 has to fail. The agreement dated 02.06.1984 has to be considered as it is all SUIT NO : 94411/16 (OLD NO.211/16) pg 18 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
the terms and conditions have to be taken into consideration for giving effect to the said agreement.
34. The said agreement did not stipulate the unconditional agreement by Sh. Faquir Chand that the property would be transferred in all and every circumstances to Sh. S.S. Duggal. Further the plaintiff is also not at liberty to treat the agreement dated 02.06.1984 in piecemeal manner that is the Plaintiff cannot concentrate only on the fact that agreement dated 02.06.1984 is the agreement by Sh. Faquir Chand to transfer his share in the suit property. The Plaintiff has to be cognizant and is bound by other terms, conditions and stipulations which are there in the said agreement.
35. In view of the above discussion, the issues under discussion is decided against the plaintiff and in favour of the defendant that is the suit of the Plaintiff is bared by limitation. The present suit ought to have been instituted as soon as it came to the knowledge that Sh. Faquir Chand inspite of the agreement dated 02.06.1984 did not withdraw the suit and in any case there is no ambiguity that the limitation period started when the suit no. 1548/337/81 was decreed that is on 30.04.1988 sans Section 32 of the Indian Contract Act. As Sh. S.S. Duggal was the party in the suit therefore S.S. Duggal has to be imputed with the knowledge of the proceedings and the SUIT NO : 94411/16 (OLD NO.211/16) pg 19 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
decree passed in the said suit. The present suit has been filed on 14.12.1999 and as per Art. 54 of the Limitation Act, the limitation period for filing of the present suit is three years; the suit of the Plaintiff is clearly barred by limitation. Further in view of the terms and conditions of the agreement dated 02.06.1984 and the provisions of the Indian contract Act, especially section 31 and 32, the Plaintiff is not entitled to the relief of specific performance as claimed.
ISSUES NO.5 & 6 Whether the suit of the plaintiff is barred by acquiescence and estoppel? OPD. Whether the suit is not maintainable as not properly valued for the purpose of court fees and jurisdiction as claimed? OPD
36. The present issue has not been pressed by the counsel for the Defendant during the final arguments and further no evidence regarding the present issue has been led, therefore the present issue is decided against the Defendant and in favour of the Plaintiff.
ISSUE NO.7 Whether the parties did not enter in any agreement for sale as alleged and hence the suit is not maintainable? OPD.
37. In the written statement interalia the defence of the defendants is that the agreement SUIT NO : 94411/16 (OLD NO.211/16) pg 20 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
dated 02.06.1984 was never executed by Sh. Faquir Chand in favour of Sh. S.S. Duggal and also no considerate/part payment amount was received by Late Sh. Faquir Chand. According to the defendant the alleged agreement dated 02.06.1984 and the receipt are false and fabricated documents. In the deposition of PW1, PW1 has identfied the signatures of late Sh. Faquir Chand on the said agreement Ex.PW1/1 as well as on the receipt Ex.PW1/2 and in the cross examination PW1 has deposed that PW1 was present along with his father Sh. S.S. Duggal at the time of execution of agreement dated 02.06.1984 Ex.PW1/1 and receipt Ex.PW1/2. On behalf of plaintiff to prove the execution of documents Ex.PW1/1 and PW1/2, PW3 Sh. Balwan Singh, Document Examiner has been examined who is examined in chief by way of his affidavit Ex.PW3/A in which PW3 has deposed that PW3 examined the disputed signatures Sh. Faquir Chand marked as MarkD1, D2 and D3 on the agreement to sell dated 02.06.1984 and also examined the admitted signatures MarkA1 and A2 of Sh. Faquir Chand dated 26.11.1984 on the plaint of the suit No.337/81 and as per the opinion of PW3 which is Ex.PW3/3, PW3 has deposed that the disputed signatures MarkD1, D2 and D3 on the agreement to sell dated 02.06.1984 are genuine signatures and have been written by person who has written admitted signatures at MarkA1 and A2 on the plaint of the suit No.337/81. PW3 has been duly examined by the counsel for the defendants. On behalf of defendants, the sole witness DW1 Sh. Subhash Anand has been examined. The examination in chief has been exhibited as Ex.DW1/A. There is the averment that the father of PW1 never SUIT NO : 94411/16 (OLD NO.211/16) pg 21 of 23 Balbir Singh & Ors. v. Rajesh Anand & Ors.
entered into any agreement to sell with late Sh. S.S. Duggal nor Sh. Faquir Chand received the amount as earnest money from Sh. S.S. Duggal. In the cross examination of DW1 has deposed that no agreement was written to his knowledge and DW1 has denied the suggestion that Sh. Faquir Chand received Rs.10,000/ as advance at the time of the said agreement. After going through the examination in chief and cross examination, there is not sufficient material to indicate that the defendants have been able to discharge the onus which was placed upon the defendants regarding the present issue. For the deposition as contained in para 4 of Ex.DW1/A no supporting/corroborative facts have been deposed to as to how and on what basis DW1 has deposed that his father Sh. Faquir Chand never entered into any agreement or that no earnest money was received by Sh. Faquir Chand from Sh. S.S. Duggal. In the evidence, the witnesses are supposed to depose about the facts and not about the conclusion. Deposition of DW1 on issue whether or not Sh. Faquir Chand entered into any agreement is more of a nature of conclusion and without the supporting collatral fact which would make the conclusion possible. The court cannot concede to the conclusion of the witnesses. After going through the opinion of PW3 which is Ex.PW3/3 and the cross examination of PW3 done by the counsel for the defendants and examining the signatures; disputes as well as admitted on Ex.PW3/2, the court is of the opinion that on balance of probability, the agreement dated 02.06.1984 Ex.PW1/1 was executed by Sh. Faquir Chand. The issue is decided against the defendant and in favour of the plaintiff.
SUIT NO : 94411/16 (OLD NO.211/16) pg 22 of 23
Balbir Singh & Ors. v. Rajesh Anand & Ors.
ISSUE NO.9
Whether the plaintiff is entitled to the relief of permanent injunction as prayed? OPP.
38. As the Plaintiff has not been found to be entitled for the substantive relief of permanent injunction and the issue no.8 has been decided against the Plaintiff, therefore, the Plaintiff is not entitled to the relief of permanent injunction as well. The issue under discussion is decided against the Plaintiff and in favour of the Defendant. RELIEF
39. As the substantive issue no. 4 and 8 have been decided against the Plaintiff therefore the suit of the Plaintiff is liable to be dismissed. The suit of the Plaintiff is found to be barred by limitation and also the Plaintiff has not been found to be entitled to the relief of either specific performance of the agreement dated 02.06.1984 or the relief of permanent injunction. Accordingly, the suit of the Plaintiff is dismissed with costs in favour of the Defendants against the Plaintiffs. If the certificate of costs is not filed the costs of the suit is quantified at Rs. 20,000/ in favour of the Defendants against the Plaintiffs. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in open court V.K. Jha
on 29.07.2016 Ld. Civil Judge12 (Central)/Delhi
SUIT NO : 94411/16 (OLD NO.211/16) pg 23 of 23