IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RFA No.: 155 of 2003. Reserved on: 30.12.2008. Decided on: 06. 01. 2009. Dilawar Singh … … Appellant. Versus Roshan Singh. … … Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellant: Mr. Ajay Sharma, Advocate. For the Respondent: Mr. N.K. Thakur, Advocate. Rajiv Sharma, Judge: This regular first appeal is preferred against the judgment and decree dated 23.6.2003 passed by the learned Additional District Judge, Una, H.P. in Civil Suit (RBT) No.5/2000/1999. Brief facts necessary for the adjudication of this regular first appeal are that the respondent/plaintiff (hereinafter referred to as the plaintiff for convenience sake) has filed a suit praying for decree of Specific Performance of Contract on the basis of agreement to sell executed inter- se the parties to the suit in respect of land measuring 0-19-98 square Whether reporters of local papers may be allowed to see the judgment? No. - 2 - meters bearing Khasra No.393, Khewat No.41 min, Khatauni No.82 min as entered in the Misal Haquiat for the year 1986-87 situated in village Mujara, Tehsil and District Una, H.P. and in the alternative prayer for recovery of amount to the tune of rs.2,40,000/- as damages with interest at the rate of 12% per annum has been made. It is averred by the plaintiff that the appellant/defendant (hereinafter referred to as the defendant for convenience sake) is the owner of suit land. He had entered into an agreement to sell the same with all rights and interests therein in favour of the plaintiff for a consideration of Rs.1,20,000/- at the rate of Rs.3,000/- per kanal and as such, he had executed the agreement dated 11.6.1998. He had received a sum of Rs.1,10,000/- and it was agreed to execute the sale deed before the Sub-Registrar on 31.12.1998 and to receive the remaining sale consideration to the tune of Rs.10,000/-. It was stipulated in the agreement that in case the defendant fails to execute the sale deed, he shall pay double the amount of earnest money, i.e. amounting to Rs.2,20,000/-. According to plaintiff, the defendant failed to execute the sale deed on 31.12.1998. He requested for extension of time and the additional agreement was executed on 29.12.1998 whereby time was extended up to 12.1.1999 and the sale deed was to be executed by 5.2.1999. The additional sale consideration to the tune of Rs.10,000/- was also paid. He was served with a registered notice, dated 17.2.1999. The defendant resisted the suit by filing the written statement. On merits, the defendant denied having executed the agreement to sell. According to him, the suit land was in mortgage with the plaintiff for Rs.25,000/-. He had returned the mortgage money, but the plaintiff being clever person asked for execution of the documents in writing. The learned Additional District has framed the following issues:- - 3 - 1. Whether the suit is not maintainable as alleged? OPD. 2. Whether the suit is not valued properly for the purpose of court fee, as alleged? OPD. 3. Whether the plaintiff is estopped form his act and conduct to file the present suit? OPD. 4. Whether the agreement dated 11.6.98 was extended by the parties from time to time, as alleged? OPP. 5. Relief. He has returned the following findings on the issues framed:- Issue No.1 = No. Issue No.2 = No. Issue No.3 = No. Issue No.4 = Yes. Relief = Suit is decree per operative part of the judgment. The learned Additional District Judge decreed the suit on 23.6.2003. The plaintiff was held entitled for Specific Performance of Agreement to sell dated 11.6.1998 which agreement was further extended on 16.1.1999 upto 5.2.1999. The defendant was directed to get the sale deed executed in favour of plaintiff within 60 days from the date of passing the decree in question. This regular first appeal is directed against the judgment and decree dated 23.6.2003. Mr. Ajay Sharma has strenuously argued that the judgment and decree dated 23.6.2003 is not sustainable in the eyes of law. He has strenuously argued that the defendant could not be proceeded ex-parte vide order dated 16.6.2003. His further contention is that since the Advocate engaged by his client was not present on 16.6.2003, notice was required to be issued to his client by the Additional District Judge. Mr. Naresh Thakur has supported the judgment and decree, dated 23.6.2003 and order dated 30.1.2003. - 4 - I have heard the learned counsel for the parties and perused the record carefully. The evidence of plaintiff was closed on 23.9.2002. The case was adjourned to 2.11.2002 for evidence of defendant. The diet money and process fee was to be deposited within 15 days. The matter came up before the learned Additional District Judge on 2.11.2002. Neither the process fee nor diet money was deposited by the defendant. Thereafter the case came up on 27.12.2002. The defendant was permitted to file the process fee and to deposit diet money. Thereafter the matter was directed to come up on 30.1.2003. The matter came up before the learned Additional District Judge on 30.1.2003. Neither the defendant nor his counsel was present. The case was called twice. It was directed to be called again after lunch. The matter was listed again at 2.20 p.m. Neither the defendant appeared himself nor his Advocate was present. He was proceeded ex-parte. The claim of the plaintiff rested on agreement to sell Ex.PW-1/A, dated 11.6.1998. This document was scribed by PW-1. He had deposed that Ex.PW-1/A was written by him as per the directions of the defendant. Santokh Singh, PW4 and Bikram, PW-5 were present at the time of writing Ex.PW-1/A. PW-4 had identified the parties to the agreement. PW-4, Santokh Singh and PW-5, Bikram are marginal witnesses to the sale agreement besides identifying their signatures on the document. They have deposed that the parties to lis had appended their signatures on the document. PW-1, Kamal Nath, PW-4, Santokh Singh and PW-5, Bikram have deposed that the plaintiff had paid sale consideration to the tune of Rs.1,10,000/- to the defendant and the remaining sale consideration to the extent of Rs.10,000/- was to be paid - 5 - at the time of execution of the sale deed. These witnesses have further testified that an additional agreement was executed on 29.12.1998 vide Ex.PW-1/A. The defendant had agreed to execute the sale deed by 12.1.1999. Accordingly, the execution of both the agreements Ex.PW-1/A and agreement Ex.PW-1/B stood proved. In fact the defendant had also approached the plaintiff for third time whereby he has sought extension of time for execution of sale agreement Ex.PW-1/A. It was made on 16.1.1999. The period was extended by 5.2.1999. Ex.PW-2/A was written by PW-2, Anil Jaswal, Petition/Deed Writer. This document was executed in the presence of PW-3, Prittam Chand and Dilbag Singh. PW- 3 Prittam Chand and Dilbag Singh were marginal witnesses. The plaintiff had only examined Shri Prittam Chand as PW-3. The defendant was served with registered notice, i.e. Ex.PW-6/A. It is, thus, evident that the plaintiff has proved the execution of three agreements dated 11.6.1998, i.e. Ex.PW-1/A, Ex.PW-1/B dated 29.12.1998 and Ex.PW-2/A dated 16.1.1999. The defendant had received a sum of Rs.1,20,000/-. He has failed to execute the sale deed despite extension of time period on two occasions. The defendant has not led any evidence. He had been given the opportunities by the learned Additional District Judge as noticed above. The defendant had neither deposited the diet money nor has he filed the process fee. He was not present on 30.1.2003 before the learned Additional District Judge. He was rightly proceeded ex-parte. There is considerable force in the submission of Mr. N.K. Thakur that the default in appearance by the defendant was deliberate to prolong the proceedings. The defendant cannot be permitted to indulge in dilatory tactics. In these circumstances, it was not necessary for the Additional District Judge to serve notice to - 6 - the defendant as argued by Mr. Ajay Sharma. The defendant has not made out any ground to set aside the order dated 30th January, 2003. In the present case the validity of the agreements have been proved by the witnesses who have scribed the agreements and the witnesses who had appeared as marginal witnesses. The defendant has sought extension twice after the signing of agreement dated 11.6.1998 Ex.PW-1/A. It was necessary for him to execute the sale deed within the period he had agreed to do so. He has received the consideration amount. He has been served with a notice which was duly proved. Consequently, it is held that the execution of the agreements Ex.PW-1/A, Ex.PW-1/B and Ex.PW-2/A has been duly proved alongwith payment of sale consideration to the defendant. He has failed to execute the sale deed without any justification. Accordingly, in view of the observations and analysis made, there is no force in this regular first appeal and the same is dismissed. However, there shall be no order as to costs. January 06, 2009. (Rajiv Sharma) (sck). Judge.