RSA No. 1101 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1101 of 1988 Date of decision 31.08.2010. Madan Lal and others ...... Appellants. versus Narinder Kaur and others ...... Respondents. CORAM : HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Avnish Mittal, Advocate for the appellants. Mr. Sukhant Batish, Advocate for Mr. R.K.Battas, Advocate for the respondents. K.C.PURI, J. This is regular second appeal directed by plaintiffs-Madan Lal and others against the judgment and decree dated 8.12.1987 passed by Shri P.S.Grewal, learned Additional District Judge, Patiala vide which the appeal preferred by the defendants against the judgment and decree dated 24.2.1984 passed by Shri U.S.Momi, Sub Judge Ist Class, Rajpura was accepted and the suit of the plaintiff for specific performance of contract stood dismissed and decreed the suit only for recovery of Rs.500/- as earnest money. Briefly the facts gathered from the record are that plaintiffs RSA No. 1101 of 1988 2 being legal representatives of Shugan Chand and Vasdev (deceased) had filed this suit for possession by way of specific performance of the agreement to sell dated 8.2.1977 regarding one house shown as ABCD in the site plan situated within the abadi deh of Banur on payment of Rs.8500/-, a sum of Rs.500/- having already been paid or in the alternative suit for recovery of Rs.9000/- i.e. Rs.500/- paid as earnest money and Rs.8500/- by way of damages on account of loss of interest, loss of business and other expenses by alleging that defendant No.1 agreed to sell the house in dispute vide agreement to sell dated 8.2.1977 for a consideration of Rs.9000/- out of which a sum of Rs.500/- was paid as earnest sale price at the time of execution of the said agreement to sell. The sale deed was agreed to be registered in favour of the plaintiffs on or before 8.3.1977. It has been further pleaded that Dharampal is alleged to have transferred his rights regarding the agreement to sell dated 8.2.1977 in favour of Vasdev deceased vide writing dated 28.2.1977 and plaintiff No.2, therefore, is entitled to get the sale deed executed and registered to the extent of ½ share alongwith plaintiff No.1. It has been further pleaded that plaintiffs have always been ready and willing and are still ready to perform their part of the contract and defendant No.1, has committed breach of the agreement to sell. It has been further pleaded that Narinder Kaur defendant No.2 in collusion with defendant No.1, in order to defeat execution of the agreement to sell, has got a fictitious sale deed executed and registered in her favour on 17.2.1977 having full knowledge of the agreement to sell. The defendants refused to exceed the request of the plaintiffs, hence the suit. On notice, defendant No.1 filed written statement and admitted RSA No. 1101 of 1988 3 the factum of execution of the agreement to sell in favour of Shugan Chand and Dharampal but they decided not to execute the sale deed in their favour and cancelled the agreement to sell for the reasons that they were short of funds and the house in dispute was already mortgaged with possession with Smt.Gurdial Kaur and there was no prospect for the plaintiffs and Dharampal to get the possession. It has been further alleged that Dharampal and Shugan Chand have agreed to the sale of the disputed property to anybody and wanted the return of the advance money to the tune of Rs.500/- which the answering defendant had agreed and in the light of above understanding sold the disputed property to Nand Kaur vide sale deed in February 1977 with the consent and knowledge of Dharampal and Shugan Chand, who were paid the advance money vide cheque No.C- 807053 dated 9.3.1977 through Narain Sharma Rana. Said Narain Sharma Rana had got the agreement in question cancelled and the cancellation was confirmed by accepting the advance money. The question for transferring any right by Dharampal defendant to Vasdev, therefore, does not arise. It has been further pleaded that Shugan Chand and Dharampal were neither willing nor ready to execute the sale deed. The answering defendant also alleged that Nand Kaur had no knowledge of the above said agreement in favour of the plaintiffs. The suit of the plaintiffs is also contested on the ground that the plaint is not signed and verified by proper and duly authorized person nor is verified in accordance with law nor the location of the property is properly mentioned. Defendant No.2 in his written statement alleged that the value of the suit for the purposes of court fee and jurisdiction is Rs.9000/- and RSA No. 1101 of 1988 4 denied the territorial jurisdiction of the Civil Court at Rajpura. On merits, all other averments have also been denied for want of knowledge and it has been alleged that the plaint is not signed, filed and verified by a proper and duly authorized person and that the answering defendant is bona fide purchaser in good faith for valuable consideration of Rs.9000/- besides the other charges of the sale deed i.e. Rs.828/- etc. It has been also alleged that Gurdial Kaur mortgagee prior to the sale deed in favour of the defendant to the knowledge of all concerned has spent a sum of Rs.6000/- by way of necessary repairs to keep it living worthy as mortgagee and after the purchase, she has spent a sum of Rs.7000/- by way of improvement and the plaintiffs and the other defendants have never objected. They are, therefore, estopped from filing the suit. Defendant No.3 was proceeded against ex-parte vide order dated 25.3.1980. Following issues were framed :- 1. Whether defendant No.1 executed an agreement to sell dated 8.2.1977 and received Rs.500/- as an advance ? OPP. 2.Whether defendant No.1 has committed breach of the contract ? OPP 3. Whether the plaintiffs have always been ready and willing and are still ready and willing to perform their part of the contract ? OPP 4.Whether the plaintiffs are estopped from filing the suit ?OPD. 5. Whether the plaint is not signed, filed or verified by the proper and duly authorized person ? OPD 6. Whether defendant No.2 is a bona fide purchaser in good faith for a valuable consideration of the suit property?OPD. 7. Whether the plaintiffs are entitled to the specific performance of the contract ? OPP RSA No. 1101 of 1988 5 8. Whether the plaintiffs are entitled to recover Rs.9000/- in the alternative ?OPP. 9. Relief. In support of their case, plaintiffs examined Dharampal PW-1, Shanti Sarup PW-2, Roshan Lal PW-3, Mohan Lal Sharma PW-4, Amrit Lal Draftsman PW-5 and one of the plaintiffs Shugan Chand appeared as PW-6. Defendant No.1 did not lead any evidence. Defendant No.2 has examined Jasbir Singh DW-1, Dev Narain Singh DW-2, Narain Sharma Rana DW-3, Chaman Lal DW-4, Ajit Singh DW-5, Jaswant Singh DW-6 and closed her evidence. The learned trial Court after hearing the learned counsel for the parties and perusal of the evidence, decreed the suit of the plaintiff vide judgment and decree dated 24.2.1984. Feeling dis-satisfied of the same, the defendants preferred First Appeal before the First Appellate Court. The First Appellate Court vide judgment and decree dated 8.12.1987 accepted the appeal and dismissed the suit of the plaintiff for specific performance of contract whereas passed a decree for recovery of Rs.500/- only. Feeling dissatisfied of the same, the plaintiffs/appellants preferred the present regular second appeal impugning the judgment and decree dated 8.12.1987 passed by the First Appellate Court. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. Learned counsel for the plaintiffs/appellants has submitted that RSA No. 1101 of 1988 6 execution of the agreement in question has been admitted by the defendants. Otherwise also, the said agreement stands duly proved on the file. The plaintiffs have always been ready and willing and ready to perform their part of the contract and are still ready and willing to perform their part of the contract. The plea of bona fide purchaser by defendant No.2 is not available to her. The trial Court after adjudication decreed the suit of the plaintiff. The First Appellate Court has reversed the well reasoned judgment of the trial Court on flimsy grounds. It is further submitted that First Appellate Court has given much importance to the affidavit dated 8.3.1977 Ex.PW8/C, sworn by Dharampal and Shugan Chand. The date of execution of the sale deed was 8.3.1977. Dharam Pal has executed affidavit giving all his rights in the agreement in favour of his real brother Shugan Chand on 28.2.1977. The First Appellate Court has observed that since in the affidavit dated 8.3.1977 the factum of assignment of rights of Dharam Pal in favour of Shugan Chand has not been mentioned and as such the document dated 28.2.1977 has been forged. This finding of the trial Court is without any basis. Even after assigning the right in favour of Shagun Chand on 28.2.1977, Dharampal could have executed the affidavit Ex. PW-8/C as the agreement was in his favour, so undue importance has been given to the said fact. I have carefully considered the said submission but do not find any force in these submissions. The First Appellate Court has returned a finding that assignment of rights in favour of Shagun Chand by Dharampal is an afterthought story. Dharampal would not have sworn the affidavit on RSA No. 1101 of 1988 7 8.3.1977 had he assigned his rights in favour of his brother in the agreement in question on 28.2.1977. A party who can go to the extent of preparing a document to get a decree of specific performance, is not entitled to discretionary relief of specific performance. Learned counsel for the appellant has further submitted that finding of the First Appellate Court that plaintiffs have not been ready and willing to perform their part of the contract is wrong on the face of it. The plaintiff had been ready and willing to perform their part of the contract. I have carefully considered the said submission but do not find any force in that submission also. The agreement admittedly was also in favour of Dharampal. He has not come into the witness box to depose that he has been ready and willing to perform his part of the contract. So, the finding of fact recorded by the First Appellate Court that appellants have failed to prove that they have been ready and willing to perform their part of the contract, does not call for any interference. There is nothing on the file that the said finding is based upon misreading and misinterpreting evidence available on the record. The High Court can interfere only under Section 100 of the CPC if the finding of fact recorded by the First Appellate Court is resulted by misreading and misinterpreting the evidence of the parties. Whether Dharampal could assign his rights in favour of Shugan Chand without the consent of the defendants is also a million dollar question. No doubt, in the agreement, it is mentioned that sale deed can be executed in favour of the original vendees or in favour of the person, decided by the original vendor, but there is no privity of contract between Vasdev and defendant No.1 in respect of the agreement in question. RSA No. 1101 of 1988 8 Learned counsel for the appellants has further submitted that finding of the First Appellate Court that Gurdial Kaur is a bona fide purchaser for valuable consideration is also against facts and law. The finding that plaintiffs have not come to the court with clean hands is wrong on the face of it. I have carefully considered the said submission but do not find any force in that submission. The said aspect of the case has been dealt in by First Appellate Court in paragraphs No.15 and 16 of its judgment elaborately. No scope for interference in that finding is made out. Otherwise also, the relief of specific performance is a discretionary relief and in view of Section 20 of the Specific Relief Act, the Court can decline the relief of specific performance by assigning reasons. In the present case, the First Appellate Court has declined the said relief giving detailed reasons as mentioned in the judgment. So, this Court cannot interfere in the discretion exercises by the First Appellate Court in withholding the relief of specific performance of the agreement. So, from the submissions made by both the sides, no substantial question of law has arisen in the present case. The question of fact recorded by the First Appellate Court cannot be interfered unless plaintiff/appellants are able to prove that there is miscarriage of justice. There is nothing on the file to establish that there is miscarriage of justice. Consequently, the appeal is without any merit and the same stands dismissed. However, in the peculiar facts and circumstances of the case, the parties are left to bear their own costs. RSA No. 1101 of 1988 9 A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 31st , 2010 sv