Case: Bhagirath Vs. Ram Ratan

1. Leave granted.2. Heard learned counsel for the parties.3. The defendant has come up in the appeal aggrieved by Judgment passed by the High Court of Judicature for Rajasthan Bench at Jaipur. The High Court has allowed the appeal and set aside the judgment passed by the first appellate court and restored the decree passed by the trial court decreeing the suit.4. The facts lies in the narrow compass:The plaintiff Ram Rattan, an advocate filed a suit claiming specific performance of agreement to sell dated 14.1.1977 said to have been entered into for a consideration of Rs. 3,000/-, it was averred that earnest money of Rs. 2,500 was paid to the deceased Motilal, father of defendant-Kalla, who was admittedly ailing seriously at the relevant point of time and required the money for his treatment. The plaintiff had averred that he approached the defendant-Kalla for execution of the sale deed as such suit was filed in March, 1983. It appears that order of status quo was passed however defendant-Kalla had sold the suit property in favour of Bhagirath in the year 1986 which appears to be in violation of the order of injunction passed by the trial court.5. The defendant had not taken the stand in his written statement that no such agreement had been entered into and the possession of the land had not been handed over to the plaintiff. Defendant was in possession of the land and enjoying it. Motilal father of the defendant-Kalla died seven years ago two days before the Akhateej in Baisakh month. Motilal was not in the need of money, the agreement is fabricated one and the plaintiff wanted to grab the valuable property by way of filing suit.6. The defendant no. 2 in his written statement also denied the factum of the execution of the agreement and contented that it was the outcome of forgery. He is a bonafide purchaser. Plaintiff had not initiated any proceedings for cancellation of the sale deed.7. The trial court decreed the suit vide judgment and decree dated 5.5.1994. The first appellate court i.e. court of Additional District Judge allowed the appeal vide judgment and decree dated 17.7.1995 and dismissed the suit. The First Appellate Court found that the suit was filed after six years hence it could not be said that the plaintiff was ready and willing to execute or perform his part of the agreement. The conduct of the plaintiff was adversely commented upon.8. The plaintiff aggrieved by the judgment and decree passed by the first appellate court preferred the second appeal the same has been allowed by the impugned judgment and order. Aggrieved thereby the instant appeal has been preferred before us.9. Sh. Ajay Choudhary, learned counsel appearing on behalf of the appellant submitted that the agreement was shrouded in mystery. It was the outcome of forgery.10. There was no reason for the plaintiff to keep quite for a period of six years of death of Motilal and thereafter to file a suit. The first appellate court has rightly dismissed the suit. The High Court has illegally reversed its judgment and decree, it could not be said that the plaintiff was ready and willing continuously to perform his part of contract which is sine qua non for decreeing the suit for specific performance of the agreement to sell. Hence the judgment and decree passed by the appellate court deserves to be restored in the peculiar facts and circumstances. It was also submitted that land approx. eight bighas could not have been sold for a paltry sum of Rs. 3,000/- in the year 1977, later on it was sold in the year 1986 for a sum of Rs. 31,200/-.11. Mr. Sushil Kumar Jain, learned senior counsel appearing on behalf of respondent has submitted that the trial court and the High Court are justified in decreeing the suit. The appellant has no right to retain the land as he is a purchaser in violation of order of injunction passed by the trial court thus no legal right can be said to be accrued to him on the basis of the sale deed executed in the year 1986. The suit has been rightly decreed on proper consideration by the trial court and discretion has been correctly exercised which had been illegally interfered by the first appellate court. Thus the judgment and decree passed by the trial court has rightly been restored by the High Court. It is also submitted that the Lrs. of Kalla have not come up to this court to prefer the appeal consequently the appeal is liable to be dismissed.12. After hearing learned counsel for the parties, we are of the considered opinion merely by the fact that the appellant had purchased the property in violation of the order of injunction passed by the trial court no legal right can be said to have accrued to the plaintiff for obtaining decree in the suit or to question the entitlement of the present appellant to prefer the appeal in this court.13. It appears that Kalla was one of the appellant before the first appellate court along with Bhagirath, the purchaser and their appeal had been allowed.14. Thereafter the second appeal filled by the Ram Ratan indicate that Kalla was impleaded in the capacity of a dead person in the second appeal in the High Court. It was incumbent upon the respondent Ram Ratan to implead Lrs. of Kalla, if any, and not to implead a deceased person in the second appeal as respondent in the High Court. Thus the appeal so filed was defective and could not have been entertained as against dead person. Be that as it may, we do not propose to non suit plaintiff on that ground as we propose to deal with the merits of the case, urged by the learned counsel for the parties.15. The appellate court has recorded findings and has discussed the facts and circumstances of the case elaborately and discretion was rightly exercised not to decree the suit for specific performance since the plaintiff had not been able to prove his readiness and willingness.16. There are several factors which weigh with us in setting aside the judgment and order passed by the High Court; firstly that agreement is shrouded in mystery even if its execution is found to be established it would give an undue advantage to the plaintiff as admittedly money had been taken by the deceased Motilal for the purpose of his treatment. He was seriously ailing at that time and died. Prima facie execution of the agreement appears to be as if it was executed for the purpose of obtaining the money for the purpose of treatment only. The land was never actually intended to be sold. Land was approximately in area eight bighas and it could not have been sold for a paltry sum of Rs. 3,000/-. Secondly when substantial consideration in the form of earnest money had been advanced by a lawyer that too in the year 1977 he would not wait for six years till 1983 even for asking for the first time that too to the son of the deceased Motilal to perform the agreement. Keeping silence for six years indicates that agreement was for obtaining money for treatment only and otherwise also plaintiff had not been ready and willing to perform his part of the contract. Thirdly, it would be iniquitous even if agreement has been executed to decree the specific performance considering the delay on the part of the plaintiff in asking son of Motilal to perform agreement and in filing the suit. He has filed a suit after more that six years of the execution of agreement thus the findings which had been arrived at by the first appellate court were absolutely proper. We have gone through it anxiously, the plaintiff had not been able to prove his readiness and willingness. He has awaken in the year 1983 to seek the specific performance and kept quite for a period of six years thus it could not be said that plaintiff-Ram Ratan who was an advocate was vigilant towards his rights,if any, for seeking specific performance. The first appellate court was fully justified in setting aside the judgment passed by the trial court.

Decision:
1[ds]12. After hearing learned counsel for the parties, we are of the considered opinion merely by the fact that the appellant had purchased the property in violation of the order of injunction passed by the trial court no legal right can be said to have accrued to the plaintiff for obtaining decree in the suit or to question the entitlement of the present appellant to prefer the appeal in this court.13. It appears that Kalla was one of the appellant before the first appellate court along with Bhagirath, the purchaser and their appeal had been allowed.14. Thereafter the second appeal filled by the Ram Ratan indicate that Kalla was impleaded in the capacity of a dead person in the second appeal in the High Court. It was incumbent upon the respondent Ram Ratan to implead Lrs. of Kalla, if any, and not to implead a deceased person in the second appeal as respondent in the High Court. Thus the appeal so filed was defective and could not have been entertained as against dead person. Be that as it may, we do not propose to non suit plaintiff on that ground as we propose to deal with the merits of the case, urged by the learned counsel for the parties.15. The appellate court has recorded findings and has discussed the facts and circumstances of the case elaborately and discretion was rightly exercised not to decree the suit for specific performance since the plaintiff had not been able to prove his readiness and willingness.16. There are several factors which weigh with us in setting aside the judgment and order passed by the High Court; firstly that agreement is shrouded in mystery even if its execution is found to be established it would give an undue advantage to the plaintiff as admittedly money had been taken by the deceased Motilal for the purpose of his treatment. He was seriously ailing at that time and died. Prima facie execution of the agreement appears to be as if it was executed for the purpose of obtaining the money for the purpose of treatment only. The land was never actually intended to be sold. Land was approximately in area eight bighas and it could not have been sold for a paltry sum of Rs.Secondly when substantial consideration in the form of earnest money had been advanced by a lawyer that too in the year 1977 he would not wait for six years till 1983 even for asking for the first time that too to the son of the deceased Motilal to perform the agreement. Keeping silence for six years indicates that agreement was for obtaining money for treatment only and otherwise also plaintiff had not been ready and willing to perform his part of the contract. Thirdly, it would be iniquitous even if agreement has been executed to decree the specific performance considering the delay on the part of the plaintiff in asking son of Motilal to perform agreement and in filing the suit. He has filed a suit after more that six years of the execution of agreement thus the findings which had been arrived at by the first appellate court were absolutely proper. We have gone through it anxiously, the plaintiff had not been able to prove his readiness and willingness. He has awaken in the year 1983 to seek the specific performance and kept quite for a period of six years thus it could not be said thatRatan who was an advocate was vigilant towards his rights,if any, for seeking specific performance. The first appellate court was fully justified in setting aside the judgment passed by the trial court.