Punjab-Haryana High Court
Jaswant Singh And Ors. vs Mukhtiar Singh And Anr. on 4 May, 2007
Equivalent citations: (2007)4PLR238
JUDGMENT Vinod K. Sharma, J.
1. The present regular second appeal has been filed against the judgment and decree passed by the learned courts below decreeing the suit filed by the plaintiff-respondent for specific performance of the contract.
2. The suit was filed on the allegation that the agreement was entered into between the parties on 6.11.1999 vide which defendant Nos. 1 to 3 had agreed to sell land measuring 4 bighas in favour of the plaintiff and defendant No. 4 in the ratio of 2:1. It was also alleged that a sum of Rs. 2,40,000/- was paid to the defendant Nos. l to 3 as earnest money. However, no date for the execution of the sale-deed was fixed. It was the case of the plaintiff-respondent that he went to the office of Sub-Registrar, Ahmedgarh on 6.6.2000 for execution of sale-deed along with the remaining sale consideration and, therefore, waited for the defendant Nos. 1 to 3 in the compound of Sub-Registrar, Ah-medgarh, but they did not come present. It was also case of the plaintiff that he had got his presence recorded on 6.2.2002 before the Sub-registrar, Ahmedgarh. But the defendant-appellants did not come present. It was further pleaded in the plaint that defendant Nos. l to 3 were requested several times to execute the sale-deed of the suit land, but they did not show their readiness and willingness to execute the sale. It was also pleaded that few days before filing of the suit, the defendants refused to execute the sale -deed in favour of the appellants and were trying to alienate the land to other person. On notice being issued in the suit, defendant Nos. l to 3 appeared in Court but in spite of availing number of opportunities they failed to file written statement and ultimately the defence of defendant Nos. 1 to 3 was struck off. Defendant No. 4 was also proceeded exp-parte. The agreement to sell was proved by producing marginal witnesses and the plaintiff also stepped into witness-box as PW-2. He also examined PW-3 Suresh Kumar, Clerk, office of Sub-Registrar, Ahmedgarh as well as Head Constable Gurwinder Singh PW-4.
3. The learned trial Court accepted the case set up by the plaintiff and decreed the suit. The appeal filed by the appellants also failed.
4. Consequently, in this regular second appeal, the learned Counsel, Mr. Mutneja appearing on behalf of appellants, vehemently contended that as defendant No. 4 had failed to appear in the case, no decree for specific performance could be passed. The contention of the learned Counsel for the appellants was that if one of the parties to the contract does not institute the suit, then a decree for specific performance cannot be passed, and therefore, the judgments and decrees passed by the learned Courts below cannot be sustained. In support of this contention, learned Counsel for the appellants placed reliance upon judgment of the Hon'ble Supreme Court in Mukesh Kumar and Ors. v. Col. Harbans Waraich and Ors. , where in the Hon'ble Supreme Court had been pleased to lay down as under:
...6. Specific performance of a contract can be enforced by any party to the contract. If there are more parties than one, specific performance of a contract cannot be decreed in the absence of some of the parties to the contract. If some of the parties entitled to the benefit of the contract are not willing to be arrayed as plaintiffs they should be impleaded as defendants. Section 239(a) of the specific Relief Act (now Section 22) covers such a case. In Nirmala Bala Dasi v. Sudarsan Jana, it is held that one of the co-promisees may sue for specific performance making the other co-promisees as defendants. Judgment can be given in favour of the persons interested whether they are joined as plaintiffs or as defendants, see : Monghibai v. Cooverji Umersey. In a case where property was agreed to be transferred to three co-promisees and all the three filed a suit for specific performance of the contract but only one of them came to the witness box in support, of the claim, it has been held that the other co-promisees would also be entitled to decree of specific performance. In the case of co-contractees it is not necessary that all of them should be ranged on the same side for obtaining specific performance. It is sufficient if all of them are before the Court. See : Jagdeo Singh v. Bishambhar. But where a single contract is to convey a land to several persons and the contract is not (sic) indivisible, some of the contractees cannot seek specific performance if the other contractees do not want that relief.
7. In the present case, in para 6 of the plaint filed before the trial Court, it is stated as follows:
Shri Ashwani Kumar Sharma, Advocate, Defendant No. 6 has similar right of getting specific performance of the agreement of sale in question but he has not joined the plaintiff in this suit. Therefore, he has been impleaded as Defendant 6.
8. A decree for specific performance sought for is in respect of the entire property and it is valued at Rs. 2 lakhs as entire consideration and the Court-fee was paid on that basis. That is, in the event a decree is passed in favour of the plaintiffs as originally set forth in the plaint, it is possible for Ashwani Kumar to seek for appropriate relief from them and their inter inter se dispute, if any, could have been settled separately. That circumstance will not disentitle the plaintiffs from seeking appropriate relief. If that suit was maintainable with Ashwani Kumar as one of the defendants, we find it difficult to see as to how it is not possible for them to transpose him as a plaintiff in terms of Order 1 Rule 10 C.P.C.
On consideration of the matter, I do not find any force in the contention raised by the learned Counsel for the appellant. The Hon'ble Supreme Court in the judgment, referred to above, has nowhere held that a suit by one of the contractees is not competent. The only requirement is that the other person should also be made a party, as has been done in the present case. Nothing was shown either by way of pleading or evidence that the contract was not divisible and, therefore, the Courts below were right in decreeing the suit.
5. The learned Counsel for the appellant thereafter sought to contend that the document produced by the plaintiff to show his presence before the office of Sub-registrar, was doubtful, as a bare perusal of the report of the Sub-Registrar would show that there has been interpolation. These allegations in absence of the specific pleading especially when the allegations are made against the Executive Magistrate cannot be accepted. The learned Courts below rightly rejected this contention by holding that the allegations of fraud and forgery would have to be proved by way of pleading and leading evidence beyond any reasonable doubt.
There is no merit in the present regular second appeal. Accordingly, the same is dismissed in limine.