Punjab-Haryana High Court
Karnail Singh And Anr. vs Harinderpal Singh Khosa And Ors. on 28 July, 2004
Equivalent citations: (2005)139PLR655
Author: Surya Kant
Bench: Surya Kant
ORDER Surya Kant, J.
This Civil Revision has been filed against the order dated 25.3.1994 passed by the Additional Senior Sub-Judge, Ferozepur, whereby an application under Sections 148 and 151 of the Code of Civil Procedure read with Section 28 of the Specific Relief Act (for short 'the Act') moved by the petitioner for extension of time for the deposit of the balance sale consideration which they were required to deposit pursuant to partly decretal of their suit on 22.11.1993, was dismissed.
Facts:-
1. An agreement to sell the agricultural land measuring 92 kanals 18 marlas jointly owned by respondent No. 1 (Harinder Pal Singh Khosa) along with is mother (respondent No. 2) and two sisters (respondent Nos. 3 and 4) was entered into between the owners and the petitioners on 24.11.1987 and an earnest money of Rs. 2,20,000/-was allegedly paid in two parts. Since the respondents failed to honour the agreement, a suit for specific performance was filed by the petitioners. The respondents did not appear despite service and were proceeded against ex parte. The learned trial Court on the basis of the evidence led by the petitioners came to the conclusion that respondent No. 2 (mother of respondent No. 1) and respondent Nos. 3 and 4 (sisters of respondent No. 1) were not party to the agreement to sell and they being co-sharers, Harinder Pal Singh Khosa (respondent No. 1) alone could not have entered into an agreement to sell their share in the aforesaid land. Consequently, the agreement to sell was found valid and enforceable qua 1/4th share of the suit land only falling to the share of respondent No. 1. The suit was, therefore, partly decreed to the extent of land measuring 23 kanals and 4 1/2 marlas. The trial court also found that the agreed rate for sale of the suit land was Rs. 26,000/- per acre and that out of the total earnest money of Rs. 2,20,000/- paid by the petitioners, respondent No. 1 had already received his 1/4th share amounting to Rs. 55,000/- and thus the suit was decreed on 22.11.1993 to the extent of 1/4th share belonging to respondent No. 1 subject to the payment of the remaining sale consideration by the petitioners within a period of 60 days "failing which the suit was deemed to have been dismissed."
2. The petitioners having felt aggrieved against the partly decretal of their suit vide judgment and decree dated 22.11.1993, hence preferred an appeal which was, however, dismissed by the First Appellate Court on 21.1.1994. Thereupon, an application dated 24.3.1994 under Sections 148 and 151 CPC read with Section 28 of the Specific Relief Act, 1963 was moved by the petitioners before the trial Court seeking extension of time for depositing the balance amount of the sale consideration which they were directed to deposit within a period of 60 days in terms of the judgment and decree dated 22.11.1993. According to the petitioners, they could not deposit the balance of the sale consideration as one of their sisters allegedly fell ill and was hospitalised and also due to pendency of their appeal as they were under the bona fide impression that the balance amount could be deposited after the decision of their appeal. The trial Court, however, did not find both the reasons convincing and vide its impugned order dated 24.3.1994 dismissed the aforementioned application. As a necessary corollary, the suit filed by the petitioners which was partly decreed qua one fourth share of respondent No. 1 also stood dismissed in terms of the conditional judgment and decree dated 22.11.1993. Aggrieved by the aforementioned order, the plaintiff/petitioners have approached this Court.
3. The office reports in this case reveal that despite several efforts, service could not be effected upon the respondents and after consideration one of the report of the process-server which mentioned that "the respondents were avoiding the receipt of the notices", the revision petition was admitted. None has appeared on behalf of the respondents even at the stage of final hearing.
4. Shri Chhabra, learned counsel for the petitioners, relying upon the contents of the judgment dated 22.11.1993 whereby the suit of the petitioners was partly decreed, vehemently contends that since the trial court has returned a finding of fact that the petitioners had paid Rs. 2,20,000/- as an earnest money for the entire land measuring 92 kanals and 18 marlas, but their suit has been decreed qua 1/4th share only, the excess amount of earnest money paid by them ought to have been adjusted by the trial Court towards the amount of total sale consideration which they were required to pay for the land measuring 23 kanals and 4-1/2 marlas. According to Shri Chhabra, had their suit been decreed for the entire land measuring 92 kanals and 18 marlas, the petitioners were certainly required to pay the remaining amount of total sale consideration of Rs. 2,92,162.50 but the same having been partly decreed qua 1/4th share only, the cost of the land measuring 23 kanals and 4-1/2 marlas which is Rs. 73,045/- only (approximately) was liable to be paid by the petitioners and which was definitely less than the total amount of earnest money of Rs. 2,20,000/- already paid by them to respondent No. 1 for the total land.
5. Alternatively, Shri Chhabra, contends that the petitioners had decided to impugn the judgment and decree dated 22.11.1993 whereby their suit was partly decreed but their appeal having been dismissed on 21.1.1994, the trial Court ought to have appreciated that the delay caused in depositing the balance of the total sale consideration was bona fide and beyond the control of the petitioners as they could not have taken a contradictory stand, namely, on one hand depositing the balance sale consideration in compliance of the judgment and decree dated 22.11.1993 and on the other hand, impugning the same before the first Appellate Court. It, therefore, constituted a sufficient cause to persuade the trial Court to invoke its powers under Section 148 and 151 C.P.C. read with Section 28 of the Specific Relief Act, 1963.
6. Having heard learned counsel for the petitioners and perusing the judgment dated 22.11.1993 as well as the impugned order dated 25.3.1994, I am of the considered view that the learned trial court has not appreciated the application moved by the petitioners in its right perspective. Though it appears that the petitioners while seeking extension of time for depositing the balance amount of the sale consideration did not specifically mention regarding adjustment of the advance excess payment made by them as earnest money to respondent No. 1, yet it appears from the contents of the judgment dated 22.11.1993 itself that the petitioners have paid earnest money qua 3/4th share as well belonging to respondent Nos. 2 to 4. Since the trial Court has returned a positive finding that respondent No. 1 could not have entered into an agreement to sell the land owned by his co-sharers, namely respondent No. 2 to 4 and the aforementioned co-sharers were not party to the agreement to sell, the amount, if any, received by respondent No. 1 for and on behalf of his co-sharers, ought to have been adjusted towards the balance sale consideration payable by the petitioners to respondent No. 1 on account of sale of his 1/4th share only, i.e. land measuring 23 kanals and 4-1/2 marlas.
7. In my view, the trial Court need not have taken a rigid view in granting extension of time to the petitioners to deposit the balance of the sale consideration as the respondents could be suitably compensated by invoking powers under Section 28 of the Specific Relief Act. Since both the aforementioned aspects have not been specifically dealt with by the trial court in its impugned order dated 25.3.1994, I find the same unsustainable in law.
8. Consequently, this revision petition is allowed. The impugned order dated 25.3.1994 is set aside and while remitting the matter, the trial Court is directed to reconsider and decide the application moved by the petitioners for extension of time for depositing the balance sale consideration afresh, after issuing notice to the respondents and in accordance with law. Since the suit was decreed way back in the year 1993 and it appears that the aforesaid decree has already attained finality, it is expected that in the interest of justice, the application shall he decided by the trial Court expeditiously and not later than four months from the date of receipt of a certified copy of this order.
No order as to costs.