R.S.A. No. 483 of 1991 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 483 of 1991 (O&M) Date of decision: 27.05.2009 Vipan Kumar ....appellant versus Smt. Asha Lata Ahuja and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. V.K. Jain, Sr. Advocate, with Mr. Prashant Vashisth, Advocate, for the appellant. Mr. Pritam Saini, Advocate, and Mr. Rajesh Dhiman, Advocate, for the respondents. *** VINOD K. SHARMA, J. C.M. No. 5387-C of 2009 Dismissed as withdrawn. R.S.A. No. 483 of 1991 This regular second appeal is directed against the judgment and decree passed by the learned Courts below, decreeing the suit for specific performance. The plaintiff/respondent No. 1 brought a suit for possession by R.S.A. No. 483 of 1991 -2- specific performance of agreement to sell dated 23.1.1980. The agreement was said to have been executed by the respondent/plaintiff through her husband Jagdish Chander, earnest money of Rs.2500/- was paid to defendant No. 1. The agreement was said to have been duly signed by defendant No. 1 in the presence of witnesses, which was got attested from the Notary Public, Karnal. According to the terms and conditions of the agreement, the sale deed was to be registered on 28.1.1980. On the date fixed, the husband of the respondent/plaintiff came to Karnal along with sale consideration in the office of the Sub Registrar, for getting the sale deed executed and registered. But, defendant No. 1 did not turn up. The plaintiff's husband got his presence duly marked with the Sub Registrar. It was alleged that defendant No. 1 also got his presence noted on the said date secretly. It is the case of the respondent/plaintiff that the plaintiff and her husband approached defendant No. 1 several times to get the sale deed executed and registered, but it resulted in no effect. The respondent/plaintiff thereafter came to know that defendant No.1 was going to transfer the said plot to some other person, and under these circumstances suit for permanent injunction was filed, in which the defendants were restrained from selling the property to anybody. Thereafter this suit was filed. On notice, the suit was contested by filing separate written statement. Defendant No. 1 raised objection that the suit was not maintainable, as the suit with regard to same property was filed earlier in the Court of learned Sub Judge, 1st Class, Karnal, therefore, the present suit was barred by principle of res judicata. R.S.A. No. 483 of 1991 -3- On merits, it was pleaded by defendant No. 1 that no earnest money of Rs.2500/- was paid nor the agreement was attested, as pleaded in the plaint. The plea was also raised that the plaintiff was never willing to perform her part of contract. Appellant/defendant No. 3 filed a written statement by taking a plea that the suit was not maintainable, as it was barred by principle of res judicata. On merits, it was pleaded that the payment of earnest money was not made to defendant No. 1, and no agreement was entered into. It was claimed that the agreement was not within the knowledge of the appellant/defendant No. 3, therefore, he claimed to be bona fide purchaser for consideration. The property was purchased from defendant No. 2, who had become owner of the property by way of civil court decree. It was claimed that the principle of lis pendens was not applicable. In the replication, assertions made in the written statement were denied, and that of plaint were reiterated. The learned trial Court was pleased to frame the following issues: - "1. Whether the defendant entered into an agreement to sell the suit land on 23.1.80 and received advance money of Rs.2500/- from the plaintiff? OPP. 2. If issue No. 1 is proved whether the plaintiff was ready to execute her part of the contract on the appointed date viz. 28.1.80? OPP. 3. Whether the time, in any way, was the essence of the contract, if so, to what effect? R.S.A. No. 483 of 1991 -4- OPP 4. Whether the suit is barred under the principle of res judicata? OPD. 5. Whether the plaintiff has no locus standi to file the present suit? OPD. 6. Whether the suit is not maintainable in the present form? OPD. 7. Whether the plaintiff is de-barred from persuing the suit by her own act and contact? OPD. 8. Whether the suit has not been properly valued? OPD. 9. Whether the suit is bad for multifariousness? OPD. 10. If issue No. 1 is proved whether the consideration of sale entered into between the parties void, illegal and not enforceable under the law? OPD. 11. Whether the defendant is entitled to special costs? OPD. 12. Relief. 11-A Whether the defendant No. 3 is a bona fide purchaser for consideration without notice? OPP. Issues No. 1 and 2 were taken up together, on appreciation of evidence, the learned trial Court was pleased to decide both the issues in favour of the plaintiff/respondent by holding, that defendant No. 1 had entered into an agreement to sell on 23.1.1980, and had received earnest money of Rs.2500/-. The learned trial Court was further pleased to hold, that the plaintiff/respondent was willing to perform her part of contract on the appointed date i.e. 28.1.1980, and thereafter. On issue No. 3, the learned trial Court was pleased to hold, R.S.A. No. 483 of 1991 -5- that as the plaintiff/respondent was willing and still willing and ready to perform her part of contract, the delay in execution of sale deed was beyond the control of the plaintiff/respondent. On issue No. 4, the learned trial Court was pleased to hold, that the previous suit filed by the plaintiff/respondent was for permanent injunction, therefore, was on a different cause of action than the suit for specific performance. The learned trial Court was pleased to hold, that as the suit for permanent injunction and that of specific performance being on two different causes of action, the suit was maintainable, and issue No. 4 was decided against the defendants. On issue No. 5, it was held that the plaintiff had locus standi to file the suit. On issue No. 6, the learned trial Court was pleased to hold, that as defendant No. 1 had failed to perform his part of contract, and the suit was maintainable. On issue No. 7, plea of the defendants, that the agreement was not enforceable for want of signatures of the plaintiff/respondent, by placing reliance on the judgment of the Hon'ble Patna High Court in Kedar Das Mohta and others Vs. Nand Lal Poddar and others, AIR 1971 Patna 253, was rejected by holding that as the agreement was executed on behalf of the plaintiff/respondent, it was, therefore, enforceable against the plaintiff also. There was reciprocity of contract. Issues No. 8 to 11 were decided against the defendants for want of evidence. Issue No. 11-A was decided against the appellant, in view of the fact that sale deed was executed in favour of the appellant after the R.S.A. No. 483 of 1991 -6- filing of the suit. The learned trial Court was pleased to apply the principle of lis pendens to hold, that the appellant was not bona fide purchaser for consideration. In view of the findings recorded, the suit for specific performance was ordered to be decreed. In appeal, the findings recorded by the learned trial Court were affirmed and the appeal was ordered to be dismissed. Mr. V.K. Jain, the learned senior counsel, appearing on behalf of the appellants, contended that the appeal raises the following substantial questions of law: - "1. Whether the suit filed by the plaintiff/respondent was not maintainable for want of reciprocity? 2. Whether the suit was barred under Order 2 Rule 2/res judicate and the findings recorded by the learned Courts below on issue No. 4 are perverse? 3. Whether in absence of established identity of the suit property, could the relief of specific performance be granted?" In support of the first substantial question of law, the learned senior counsel contended, that it is not in dispute that the plaintiff/respondent was not signatory to the agreement to sell, which was executed by her husband, who was also said to have gone to the office of Sub Registrar for execution of the sale deed. The contention of the learned senior counsel for the appellant was, that once the plaintiff had not signed the agreement, the contract of sale was not enforceable for want of reciprocity, as in event of failure of the plaintiff/respondent to perform her part of contract, it was not R.S.A. No. 483 of 1991 -7- possible for defendant No.1 to enforce the agreement. The contention of the learned senior counsel was, that the learned Courts below wrongly distinguished the judgment of the Hon'ble Patna High Court in Kedar Das Mohta and others Vs. Nand Lal Poddar and others (supra) in holding, that the contract could be enforced even against the plaintiff, as the agreement to sell was executed on her behalf. The learned senior counsel for the appellant contended that the husband of the plaintiff could act on her behalf if so authorised by power of attorney, otherwise he had no authority to enter into contract on her behalf. The Hon'ble Patna High Court in Kedar Das Mohta and others Vs. Nand Lal Poddar and others (supra) was pleased to lay down as under: - "7. There is no substance in the first contention of Mr. Lal Naravan Sinha. Really he did not elaborate it which indicates that he himself was not convinced of the merit of this contention. The sale deeds in favour of the appellants of the two appeals are of dates prior to the execution of the sale deeds in favour of Rameshwar. Mr. Lal Narayan Sinha conceded that recitals in the sale deeds in favour of Rameshwar would not bind the appellants in the two appeals. Obviously, therefore, the appellants cannot take any advantage of the recitals in the sale deeds in favour of Rameshwar against the plaintiff-respondents. An agreement cannot be enforced at the instance of a person who himself is not bound by it. In other words, there must be reciprocity as to the binding nature of the agreement the person who wants to enforce it and the person against whom it is sought to be enforced. R.S.A. No. 483 of 1991 -8- Mr. Lal Naravan Sinha faintly suggested that the alleged settlement between Rameshwar and respondent No.6 might have been arrived at before the execution of the sale deeds in favour of the appellants of the two appeals. There is no averment in the pleadings of either party as to the actual date of the alleged settlement. The settlement could have been arrived at even after the execution of the sale deeds in favour of the appellants of the two appeals and before the execution of the sale deeds in favour of Rameshwar. The appellants not having raised this point in the courts below cannot now be allowed to raise it in tis Court at the second appellate stage on the assumption that the settlement might have been arrived at before the execution of the sale deeds in favour of the appellants of the two appeals. Even if the settlement which was oral was arrived at before the execution of the sale deeds in favour of the appellants of the two appeals, the appellants cannot enforce terms thereof as against the plaintiff-respondents for the reason aforesaid i.e. want of reciprocity. They do not admit that they had notice of the settlement before the execution of the sale deeds in their favour and, therefore, it would bind them. They cannot be allowed to say, in the circumstances, that the settlement binds the plaintiff-respondents and they (the appellants) can rely on it against them (plaintiff-respondents). Further, the title acquired by the plaintiff-respondents by adverse possession could not be relinquished by an oral settlement of the nature alleged in the plaints. Such a right could be relinquished or transferred only by a registered instrument as it is nobody's case that the value of the property was less than Rs.100/-." The learned senior counsel for the appellant also placed R.S.A. No. 483 of 1991 -9- reliance on the judgment of the Hon'ble Allahabad High Court in Prag Naryan Mook Badhir Vidayalaya Samiti, Aligarh and another Vs. Hukam Singh and others, 1997 AIHC 2963, wherein the Hon'ble Allahabad High Court was pleased to lay down that when plaintiff is not party to the contract of sale, suit for specific performance would not be maintainable. Reliance was also placed on the judgment of the Hon'ble Madras High Court in S.M. Gopal Chetty Vs. Raman alias Natesan and 7 others, AIR 1998 Madras 169, wherein the Hon'ble Madras High Court was pleased to lay down as under: - "7. From the two documents we are not able to find anything signifying the assent of the plaintiff. Therefore, there is no contract between the plaintiff and the defendants. At the most they may be termed as undertakings by the defendants 1 and 2. As per Section 10 of the Indian Contract Act, 1872, all agreements are contracts, if they are made by free consent of the parties competent to the contract. As we have seen above, there is no agreement at all in the present case by the plaintiff. 8. If there is no contract at all, then the question of specific performance does not arise. As per Section 15 of the Specific Relief Act, 1963, the contract can be enforced only by a party to a contract. The plaintiff is not a party at all to the contract. Therefore he is not entitled to obtain a decree from court for specific performance. Hence the suit has to be dismissed on this ground alone." Mr. Pritam Saini, learned counsel appearing on behalf of the respondents, contended that the learned Courts below rightly held, that though there was no specific power of attorney either general or special, R.S.A. No. 483 of 1991 -10- but keeping in view the fact that the person executing the agreement on behalf of the plaintiff/respondent was her husband, he had implied authority of his wife to enter into an agreement. The learned counsel for the respondents, thus, contended that once by way of evidence it was proved on record that the agreement was entered into between the parties, it was not open to the defendants to claim that the agreement was not enforceable for want of signatures. It is also the contention of the learned counsel for the respondents, that in terms of Clause (d) of Section 2 of the Contract Act, the contract could not be said to be unforceable. Section 2(d) of the Contract Act reads as under: - "When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise;" On consideration, I find force in the contentions raised by the learned senior counsel for the appellant. Once it was proved, that the plaintiff/respondent was not signatory to the agreement, the same could not be enforced by way of specific performance for want of reciprocity, as contended by the learned senior counsel. Section 2(d) of the Contract Act could only come to play, if the contract was complete and total sale consideration was paid on behalf of the promisor, however, when the contract is not complete, party who is not signatory to the said contract, cannot be forced to comply with the contract. It would not have been possible for defendant No. 1 to enforce the specific performance of the contract for want of R.S.A. No. 483 of 1991 -11- reciprocity, as the plaintiff admittedly was not signatory to the agreement. The finding of the learned Courts below on issue No. 6, therefore, cannot be sustained, as no such implied authority can be inferred in favour of the husband by the wife. On the second substantial question of law, the learned senior counsel for the appellant contended, that though the suit was claimed to be barred by principle of res judicata, but in fact, the suit filed by the plaintiff/respondent was not maintainable in view of the bar under Order 2 Rule 2 of the Code of Civil Procedure. The learned senior counsel contended that as per the case set up by the plaintiff herself, the agreement was executed between the parties on 23.1.1980, stipulating therein that the conveyance deed was to be executed on 28.1.1980. The suit for injunction was filed by the plaintiff/respondent on 6.2.1980, and was withdrawn thereafter on 10.6.1980. The contention of the learned senior counsel for the appellant, therefore, was that on the date of filing of the suit for injunction, the plaintiff/respondent had cause of action to seek relief of specific performance, but she chose to file a suit for injunction. Therefore, the plaintiff/respondent was not entitled to file a suit for specific performance in view of the bar contained under Order 2 Rule 2 of the Code of Civil Procedure. In support of this contention, the learned senior counsel placed reliance on the judgment of Privy Council in Muhammad Hajiz and another Vs. Mirza Muhammad Zakaria and others, A.I.R. 1922 Privy Council 23, the judgment of the Hon'ble Supreme Court in Sidramappa R.S.A. No. 483 of 1991 -12- Vs. Rajashetty and others, AIR 1970 Supreme Court 1059, and the judgments of this Court in Smt. Ralli Vs. Smt. Satinderjit Kaur, 1998(2) RCR (Civil) 114, Tarsem Singh Vs. Sibu Ram, 1998(2) RCR (Civil) 222, Rakesh Kumar Vs. Ajit Singh, 2001(3) RCR (Civil) 285 and Veena Goyal Vs. Raj Kumar Mittal, 2009(1) RCR (Civil). In all these authorities, the law laid down is, that if on the date of filing suit for injunction, the relief of specific performance was available, then the vendee is not entitled to file a suit for specific performance of agreement, as it would be barred under Order 2 Rule 2 of the Code of Civil Procedure. Mr. Pritam Saini, the learned counsel for the respondents, on the other hand, contended that the learned Courts below were right in holding, that cause of action for maintaining a suit for injunction and that of specific performance are different. Therefore, it was open to the plaintiff/respondent to maintain a suit for specific performance during the pendency of the suit for injunction, as injunction suit stood withdrawn. In support of this contention, the learned counsel for the respondents/plaintiff placed reliance on the Division Bench judgment of this Court in Smt. Bhagwan Kaur v. Harinder Pal Singh, 1992(1) RRR 59, wherein this Court was pleased to lay down that when the earlier suit filed for seeking injunction is dismissed, the subsequent suit for specific performance of agreement of sale is maintainable as the foundation for claim of specific performance in the subsequent suit is not the same as in the earlier suit. The contention of the learned counsel for the respondents is that the findings of the learned Courts below, therefore, R.S.A. No. 483 of 1991 -13- cannot be interfered with. The contention of the learned counsel for the respondents was considered and explained by this Court in the case of Smt. Ralli Vs. Smt. Satinderjit Kaur (supra), wherein this Court was pleased to lay down as under: - "6. On going through the record and hearing the counsel for the parties at length, I am of the view that the Courts below have acted erroneously in not permitting the legal representatives to raise the plea of res-judicata or suit being barred under Order 2 Rule 2, Code of Civil Procedure, and being barred by time. Sub-rule (2) of rule 4 of Order 22, Code of Civil Procedure, authorizes a legal representative to take any defence appropriate to his character as legal representative of the deceased-defendant. In other words, it authorizes a legal representative to file additional written statement, raising all pleas which the deceased-defendant had or could have raised except those which were personal to the deceased Under the rule, there is no prohibition for raising pure questions of law which go to the very root of the matter and are in the nature of questions of jurisdiction. In Vidya Wati v. Manmohan and others, 1996(1) PLR 97: 1995(3) RRR 504 the Apex Court reiterated the view taken in earlier two decisions, namely, Bal Krishan v. Om Parkash and another, AIR 1986 SC 1952 and Jagdish Chander Chatterjee and others v. Sri Kishan and another, 1973(1) S.C.R. 850, and held that all rights and defences available to the deceased-defendant become available to the legal representative. In the present case, it is not the case of the plaintiff that the pleas on merits taken by the legal representatives are contrary and inconsistent to R.S.A. No. 483 of 1991 -14- the pleas taken by the deceased-defendant. Deceased- defendants in the written statement specifically urged that the plaintiff had not been ready and willing to perfrom her part of the contract, whereas they had always been ready and willing to execute the sale deed on receipt of balance sale consideration. The legal representatives have not departed from or contradicted the position taken by the defendants whose legal representatives they are. In my view, there is no prohibition for taking additional pleas by the legal representatives regarding res-judicata, suit being barred by the time of barred under Order 2 Rule 2, Code of Civil Procedure, being pure questions of law. The law permits legal representatives to raise all contentions except those which are personal to the deceased. The pleas sought to be raised being not personal to the deceased, should have been allowed to be raised. 7. Faced with this situation, counsel for the plaintiff contended that the plea of Order 2 Rule 2 and Section 11, Code of Civil Procedure cannot be presumed merely on inferences. Counsel contended that plea of bar under Order 2, Rule 2 and Section 11, Code of Civil Procedure, can be established only if defendant files in evidence the pleadings in the previous suit and thereby proves to the court the identity of the causes of action in the two suits. He contended that in absence of former pleadings, plea should not be allowed to be raised. It is true that the pleadings of the previous suit were not produced by the defendants. But omission to produce pleadings is not so material in the present case. The judgment in the previous case contains a summary of those pleadings. The plea of bar under Order 2 Rule 2, R.S.A. No. 483 of 1991 -15- Code of Civil Procedure, and of res-judicata can be established on record on the basis of the judgment given in the previous suit and not necessarily on the production of pleadings. To prove the plea of a bar under Order 2 Rule 2, Code of Civil Procedure, counsel for the defendants contended that in the plaint filed in the present suit, plaintiff in para 10 has specifically pleaded “that cause of action arose to the plaintiff against the defendants when the defendants served a notice on the plaintiff dated 21.4.1981 declining to execute the sale-deed as per sale agreement on the false pretext that the requisite permission was not available .....”. counsel contended that from a reading of para 10 of the plaint, it is clear that cause of action accrued to the plaintiff 21.4.1981, but instead of filling suit for specific performance the plaintiff filed suit for permanent injunction restraining the defendants from transferring, alienating or disposing of the land in suit in any manner in favour of anyone else other than the plaintiff. In answer to these submissions, counsel for the plaintiff referred to judgments in Sardari Mal v. Hirde Nath and others, AIR 1925 Lahore 459(2) and Bhagwan Kaur v. Harinder