Punjab-Haryana High Court
Swaran Singh vs Swaran Kaur And Ors. on 12 January, 2004
Equivalent citations: (2004)137PLR184, AIR 2004 PUNJAB AND HARYANA 242, (2004) 19 ALLINDCAS 468 (P&H), 2004 (19) ALLINDCAS 468, 2004 (1) HRR 503, (2004) 2 PUN LR 184, (2004) 2 RECCIVR 505
Author: Viney Mittal
Bench: Viney Mittal
JUDGMENT Viney Mittal, J.
1. During the course of arguments, the following substantial questions of law are found to be involved in the present appeal:
a) As to whether the findings and circumstances of the case as recorded concurrently by both the courts below, could an inference be raised that the plaintiff-appellant was not ready and willing to perform his part of the agreement?
b) As to whether on the general rule, that in the case of an agreement of sale with regard to an immovable property, the specific performance has to be normally granted, could be ignored in the present case?
c) As to whether the judgment of the learned District Judge could be held to be based upon wrong perspective of law and as such was to be termed as judicially perverse and liable to be set aside.
2. The plaintiff-appellant has approached this court through the present regular second appeal. He filed a suit for possession by way of specific performance. It was claimed that Swarn Kaur defendant No. 1 had entered into an agreement to sell dated May 30,1981 with the plaintiff for the sale of the land measuring 21 Kanals 9 marlas situated in village Fatehabad. The sale consideration was fixed at the rate of Rs. 22,500/-per acre. At the time of the execution of the agreement, Rs. 10,000/- were received by defendant No. 1 as earnest money. According to the agreement, the sale deed was to be executed in favour of the plaintiff on or before October 19, 1981. It was also agreed between the parties that the possession of the land covered under the agreement would be delivered by defendant No. 1 at the time of execution of the sale deed. Subsequently, through a consent of the parties, time for execution of the sale deed was extended upto December 13, 1981, June 30, 1982, September 30, 1982 and upto October 7, 1982 vide endorsements on the back of the agreement. The plaintiff also maintained that on the appointed date i.e. October 7, 1982 he appeared before the Sub Registrar and filed an application showing his presence but since defendant No. 1 was not in a position to deliver possession and execute the sale deed as per the terms of the agreement, therefore, an affidavit to that effect was got attested by the plaintiff. The plaintiff was also got served a notice through his counsel requesting defendant No. 1 to deliver the possession of the suit land and execute the sale deed but of no avail. Claiming that the plaintiff was always ready and willing to perform his part of the agreement and the defendant No. 1 had failed to execute the sale deed in terms of the agreement, a suit for specific performance was filed. Alternatively, it was claimed that if the plaintiff was found riot entitled to the decree of specific performance then a decree for recovery of Rs. 20,000/- i.e., double of the amount of earnest money i.e. Rs. 10,000/- be passed on account of damages.
3. The suit was contested by the defendants.
4. Defendant No. 1 in her written statement admitted the execution of the agreement dated May 30, 1981 and receipt of the earnest money of Rs. 10,000/- by her. The extension of the date of execution of the sale deed on various occasion was also admitted by her. However, she claimed that plaintiff had shown his inability to execute the sale deed for want of funds. It was also claimed that she was in possession of the suit land and was always ready to deliver its possession to the plaintiff but every time, the plaintiff re quested for extension of time. On the basis, it was claimed that it was the plaintiff who had failed to execute the sale deed and that she was always ready and willing to perform her part of the agreement.
5. The defendant further claimed that on October 7, 1982 she had gone to the office of the Sub Registrar for completion of the sale deed and the plaintiff was also present and he promised to get the sale deed completed upto October 14,1982 as a result of which the time for performance of the agreement was extended upto October 10,1982. On the basis of the aforesaid averments, defendant No. 1 claimed that the suit filed by the plaintiff for specific performance was liable to be dismissed.
6. A separate written statement was filed by defendants No. 2 and 3. The aforesaid defendants denied the execution of the agreement between the plaintiff and defendant No. 1 and also receipt of any earnest money by defendant No. 1. It was further Claimed that they had purchased the suit land by means of two registered sale deeds dated January 13, 1983 and January 31, 1983 for a total sale consideration of Rs. 42,000/-. Claiming that the aforesaid defendants had no knowledge or notice of any agreement to sell between the plaintiff and defendant No. 1, they claimed that they were bona fide purchases of the suit property without any notice and for valuable consideration.
7. On the basis of the evidence led by the parties, the learned trial Court held that the agreement Ex.P1 dated May 30, 1981 was, duly executed by defendant No. 1 in favour of the plaintiff and at the time of the execution of the agreement, she had also received Rs. 10,000/- as earnest money. It was also held by the learned trial Court that defendants No. 2 and 3 had purchased the suit property during the pendency of the civil suit and as such sales in their favour were hit by the doctrine of the lis-pendence. Accordingly it was held that the aforesaid defendants had no protection available to them.
8. The learned trial Court further held that the plaintiff had clearly proved that he was always ready and willing to perform his part of the agreement. It was also noticed by the learned trial Court that the plaintiff had got a bank draft prepared on October 7, 1982 for the sale consideration which was subsequently got cancelled on October 8, 1982, On the basis, it was also held that the plaintiff had the requisite amount on the date fixed for the execution of the sale deed. On the basis of said evidence, the suit filed by the plaintiff for specific performance was decreed.
9. The defendants felt aggrieved. They approached the learned first appellant Court through an appeal. The learned first appellate Court reappraised the evidence available on the record. On such reappraisal, the learned first appellate Court also came to the conclusion that the agreement Ex.P1 had been duly executed between the plaintiff and defendant No. 1. It was also held that defendant No. 1 had received an amount of Rs. 10,000/- as earnest money at the time of the execution of the agreement. However, the learned first appellate Court found that the plaintiff had not been able to prove that he was ready and willing to perform his part of the agreement and as such, on that basis, the findings recorded by the learned trial Court in that regard were reversed. On the basis of the reversal of the aforesaid finding the relief of specific performance claimed by the plaintiff was declined and his prayer for recovery of Rs. 10,000/- made in the alternative was granted.
10. The plaintiff-appellant has now approached this Court through the present regular second appeal, The prayer has been made to set aside the judgment and decree of the learned first appellate Court and restore that of the learned trial Court and to decree the suit for specific performance as originally decreed by the learned trial Court.
11. I have heard Shri H.S.Aulakh, the learned counsel for the appellant and Shri Narinder Lucky, the learned counsel appearing for respondents No. 2 and 3 and with their assistance have also gone through the recbrd of the case. In fact no one has chosen to appear on behalf of defendant No. 1 Swaran Kaur.
12. In my considered view the approach of the learned first appellate Court cannot be legally sustained.
13. It is not in dispute that as per agreement Ex.P1 the parties had duly agreed that at the time of the execution of the sale deed, the possession of the land in dispute was to be delivered by defendant No. 1 to the plaintiff. The learned first appellate Court has itself noticed that one Swarn Singh son of Teja Singh had brought a suit against the present plaintiff-Swarn Singh and defendant No. 1-Swarn Kaur wherein he had got permanent injunction for restraining Swarn Kaur from forcibly dispossessing him (Swarn Singh son of Teja Singh) from the suit land. The aforesaid suit was finally decided vide judgment Ex.P.9 dated March 18, 1982 against the aforesaid plaintiff. An appeal was taken out. It was only on January 7, 1983 that the matter was compromised between aforesaid Swarn Singh son of Teja Singh and Swarn Kaur, and aforesaid Swarn Singh withdrew his suit after receiving an amount of Rs. 4000/-. It is, thus, apparent that Swarn Kaur was not in physical possession of the land in dispute on October 7, 1982 or on October 14, 1982 which were the two dates fixed for the execution of the sale deed. If the aforesaid defendant No. 1 was not in actual physical possession of the land in dispute on the dates fixed for execution of the sale deed, then by any stretch of imagination it could not be suggested that the plaintiff was a defaulting property for the non-execution of the sale deed. The plaintiff had a right to seek the actual physical possession of the suit land at the time of the execution of the sale deed. If defendant No. 1 Swarn Kaur was not in physical possession of the land in dispute at the time of the date fixed for the execution of the sale deed i.e. on October 14, 1982, since a litigation between Swam Singh son of Teja Singh and aforesaid defendant No. 1 was pending which had only been decided on January 7, 1983, then it is apparent that defendant No. 1 Swam Kaur was not in a position to fulfil her own obligations.
14. Although the learned first appellate Court has relied upon the observations made by the Hon'ble Supreme Court in Romesh Chandra Chandick v. Chuni Lal Subharwal, A.I.R. 1971 Supreme Court 1238 to hold that the question of readiness and willingness, of a person could not be determined on the basis of a straight jacket formula but still the teamed first appellate has itself fell into an error by not applying the aforesaid settled principles of law. All the facts and circumstances available on the record clearly point out to the fact that it was defendant No. I who was a defaulting party and it was the plaintiff, on the other hand, who was always ready and willing to perform his part of the agreement. In fact, as has been noticed above, the plaintiff had even got a bank draft, prepared and was in possession of the same, being the balance amount of sale consideration on October 7, 1982. of course the said bank draft was got encashed by him on the next date but the time had been extended upto October 14,1982 and it could not be suggested at all that within a period of seven days the plaintiff had not been left with the requisite amount to pay the balance sale consideration.
15. It is well settled principle of law that in a suit for specific performance of an agreement with regard to the sale of immovable property, the normal rule is to allow the specific performance and it is only in rare circumstances that the said relief may be denied. Nothing has been noticed by the learned first appellate Court nor has been pointed out by the learned counsel for respondents No. 2 and 3 during the course of arguments that any of the such circumstances existed. It is not understandable as to how the normal rule has been deviated by the learned first appellate Court in the present case.
16. In view of the aforesaid discussion, the answer to the substantial questions posed in the beginning has to be given in affirmative and in favour of the plaintiff.
17. Before parting with this order, it may be relevant to notice that respondent No. 1 (defendant No. 1) has chosen not to contest the present appeal. Only defendants No. 2 and 3, who are admittedly transferees lis pendence have contested the present appeal. The aforesaid defendants have no independent right to contest the agreement between the plaintiff and defendants No. 1. In fact they are bound by any decision rendered against defendant No. 1 in the present suit.
18. Accordingly, the present appeal is allowed. The judgment and decree passed by the learned first appellate Court are set aside and that of the learned trial Court are restored. The suit of the plaintiff-appellant for specific performance as originally claimed by him is decreed with no order as to costs.