RSA No.425 of 2011 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.425 of 2011 (O & M) Date of Decision: 25.01.2011. Bal Chand .....Appellant Versus Jawantri Devi and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Sanjeev Pandit, Advocate for the appellant. L. N. MITTAL, J (ORAL) CM No.1151-C of 2011 For reasons mentioned in the application which is accompanied by affidavit, delay of 91 days in filing the appeal is condoned. Main Appeal. Bal Chand legal representative of Shankar-defendant No.1 has filed the instant second appeal. Suit was filed by Bichha Ram-plaintiff since deceased and represented by respondent Nos.1 to 8 as his legal representatives. It appears that the suit was initially filed against defendant No.1- Shankar only (now represented by appellant-Bal Chand). Defendant Nos.2 to 5 (respondent Nos.9 to 12) were impleaded subsequently. The plaintiff alleged that defendant No.1-Shankar agreed to sell the suit land measuring 32 kanals 10 marlas to the plaintiff for total consideration of Rs.6,20,000/- and received Rs.2,18,000/- as earnest RSA No.425 of 2011 (O & M) -2- money and executed agreement dated 27.01.1995 regarding the same. Sale deed was to be executed on or before 15.02.1996. Amount of Rs.25000/- payable by defendant No.1 to some bank could also be adjusted by the plaintiff from the balance sale consideration. After impugned agreement, defendant No.1 started negotiating for sale of the suit land to some other persons and, therefore, plaintiff filed suit for permanent injunction on 03.06.1995, wherein temporary injunction was granted against defendant No.1- Shankar vide order dated 14.06.1995 restraining him from alienating the suit land. However, after date for execution of sale deed stipulated in the agreement expired and, consequently when the plaintiff became entitled to seek the relief of specific performance of the agreement, the plaintiff withdrew the injunction suit on 27.02.1996 with liberty to file suit for specific performance of the agreement. The plaintiff went to the office of Sub-Registrar on 13.02.1996, 15.02.1996 and 16.02.1996 to get the sale deed executed in terms of the agreement, but defendant No.1 did not turn up and committed breach of the agreement. Plaintiff also sent notice dated 20.02.1996 to defendant No.1 to perform his part of the contract , but defendant No.1 intentionally did not receive the notice. Accordingly, plaintiff filed suit for possession of the suit land by specific performance of the impugned agreement to sell. In the suit, status quo order dated 08.10.1996 was passed regarding alienation of the suit land, but in violation of the said status quo order, defendant No.1 sold 8 kanals land out of the suit land to defendant No.2 vide sale deed dated 14.09.1998 RSA No.425 of 2011 (O & M) -3- registered on 15.09.1998. By amendment of plaint, the said sale deed was also challenged being hit by doctrine of lis pendens and also on account of disobedience of status quo order dated 12.08.1996. The plaintiff always remained ready and willing to perform his part of the contract, but defendant No.1 committed breach thereof. On these averments, plaintiff sought possession of the suit land by specific performance of the agreement and also sought declaration that sale deed regarding 8 kanals land by defendant No.1 in favour of defendant No.2 is illegal, null and void and not binding on the plaintiff. Defendant No.1 contested the suit and broadly denied the plaint allegations. Defendant No.1 denied having agreed to sell the suit land to the plaintiff or having received any earnest money or having executed the impugned agreement. Defendant No.1 alleged that he had sold some other 2 kanals land in favour of plaintiff's sons Raghbir Singh, Balbir Singh, Joginder Singh and Samay Singh vide registered sale deed dated 27.01.1995 for Rs.32000/- and at that time, plaintiff might have obtained thumb impressions of defendant No.1 on some papers which were later on forged to prepare the impugned agreement. Injunction suit was filed by the plaintiff by pleading wrong facts. The said suit stands dismissed as withdrawn on 27.02.1996. Plaintiff has no right to seek possession of the suit land by specific performance of the impugned agreement. Defendant No.2 also broadly denied the plaint allegations. It was pleaded that order dated 08.10.1996 directing the parties to maintain status quo regarding alienation of the suit land is not binding RSA No.425 of 2011 (O & M) -4- on defendant No.2 as he was not party to the suit on that date. Defendant No.1 mortgaged 8 kanals land of khasra No.12/11 (out of the suit land) in favour of defendant No.2 vide registered mortgage deed dated 06.06.1997 for Rs.70,000/- and later on the said land was sold by defendant No.1 to defendant No.2 for Rs.2,00,000/- vide registered sale deed dated 15.09.1998 after adjusting the mortgage money. Now defendant No.2 is owner in possession of the said 8 kanals land. Defendant Nos.3 to 5 appear to have been impleaded on their application. They have alleged that they have right to execute decree dated 31.03.2001 passed in their favour against defendant No.1 for recovery of Rs.2,00,000/- with interest from the land in dispute and if the suit is decreed, then decree dated 31.03.2001 be executed from the sale proceeds of the balance sale consideration. Defendant Nos.3 to 5 pleaded that defendant No.1 had executed agreement dated 28.05.1995 for sale of 36 kanals 4 marlas land including the suit land in favour of defendant Nos.3 to 5 and received Rs.1,00,000/- as earnest money, but later on, defendant Nos.3 to 5 learnt about the earlier impugned agreement dated 27.01.1995 executed by defendant No.1 in favour of plaintiff. Accordingly, defendant Nos.3 to 5 filed suit against defendant No.1 for recovery of double the earnest money in terms of the agreement dated 21.08.1995 and in that suit, decree dated 31.03.2001 for recovery of Rs.2,00,000/- with interest has been passed in their favour against defendant No.1. Learned Civil Judge (Junior Division), Yamunanagar at RSA No.425 of 2011 (O & M) -5- Jagadhri vide judgment and decree dated 19.01.2008, instead of decreeing the suit for specific performance of the agreement, decreed the suit for recovery of double the earnest money with simple interest at the rate of 8% per annum from the date of agreement till recovery. Plaintiff filed appeal against judgment and decree of the trial Court. In the said appeal, legal representative of defendant No.1 (appellant herein) preferred cross-objections. Learned Additional District Judge, Yamunanagar at Jagadhri vide judgment and decree dated 31.03.2010 dismissed the cross- objections preferred by legal representative of defendant No.1 and allowed the appeal preferred by the plaintiff and modified the judgment and decree passed by the trial Court and decreed the plaintiff's suit as prayed for. Feeling aggrieved, legal representative of defendant No.1 has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant at the outset submitted that the appellant does not challenge the judgment and decree of the trial Court regarding recovery of double the earnest money with simple interest passed in favour of the plaintiff. The challenge is thus confined to the relief of specific performance of the agreement granted by the lower appellate Court. In this context, it may be noticed that both the Courts below have concurrently found the impugned agreement to have been duly executed by defendant No.1 in favour of the plaintiff. Learned counsel for defendant No.1 referred to observations of trial Court at pages 81 to 84 of the paper book for RSA No.425 of 2011 (O & M) -6- declining the relief of specific performance of the agreement. However, the said approach of the trial Court is not only erroneous, but patently perverse and illegal and has, therefore, been rightly set aside by the lower appellate Court. Trial Court declined the relief of specific performance of the agreement to the plaintiff on the ground that plaintiff had filed another suit against defendant No.1-Shankar for recovery of Rs.36,400/- on the basis of pronote and the said suit was dismissed holding the pronote to be without consideration and version of defendant No.1 that his thumb impressions on the pronote were obtained in the police station was accepted. However, dismissal of the said other suit based on pronote has not even the remotest link with the impugned agreement or the instant lis. On the contrary, the trial Court held and rightly so that defendant No.1 having executed the impugned agreement and having received earnest money from the plaintiff turned dishonest and did not execute the sale deed. In spite of this observation, relief of specific performance of the agreement was declined to the plaintiff by the trial Court on the premise that some other suit of the plaintiff against defendant No.1 stood dismissed. It cannot be made a ground for denying the relief of specific performance of the agreement, when there is categorical finding even by the trial Court that defendant No.1 turned dishonest. Here it may be mentioned that in spite of status quo order regarding alienation of the suit land, defendant No.1 in violation of the said order mortgaged 8 kanals land out of the suit land in favour of defendant No.2 and thereafter sold the said 8 kanals land to RSA No.425 of 2011 (O & M) -7- defendant No.2. Thus defendant No.1 was not only dishonest, but also dared to violate the order of the Court and still the trial Court showed sympathy in favour of defendant No.1. The trial Court assigned another reason for declining relief of specific performance of the agreement by observing that it would cause greater hardship to defendant No.1 in comparision to the plaintiff. In this context, learned counsel for the appellant also contended that defendant No.1 has no other land except the suit land and, therefore, specific performance of the agreement would result in great hardship to defendant No.1. This contention of counsel for the appellant is completely unacceptable and aforesaid approach of the trial Court is also patently perverse and illegal. Defendant No.1 in his written statement did not even raise any such plea and, therefore, relief cannot be denied to the plaintiff on this ground nor this contention can be allowed to be raised on behalf of defendant No.1 or his legal representative. Even otherwise, the question of comparative hardship does not arise. Defendant No.1 with open eyes agreed to sell the suit land to the plaintiff and also received earnest money. He should have visualized his alleged hardship at that time. On the contrary, even during pendency of the suit, defendant No.1 himself sold 8 kanals land out of the suit land to defendant No.2. It is thus manifest that no hardship would be caused to defendant No.1 by specific performance of the impugned agreement. Thus both the grounds observed by the trial Court to decline relief of specific performance of the agreement to defendant No.1 are patently perverse and unsustainable. On the contrary, RSA No.425 of 2011 (O & M) -8- dishonest conduct of defendant No.1 coupled with disobedience by defendant No.1 of the interim order of the Court passed in the suit go strongly against defendant No.1. There is no reason to decline the relief of specific performance of the agreement to the plaintiff. This judgment be specifically brought to the notice of the Presiding Officer of the trial Court, who passed the impugned judgment, so that such absurd and perverse approach is not adopted by him in future. Learned counsel for the appellant also contended that the lower appellate Court has also granted relief to defendant Nos.3 to 5 for payment of their decretal amount out of the balance sale consideration to be paid by the plaintiff's legal representatives and this could not be done. The contention appears to be based on misreading of the relief granted by the lower appellate Court. The contention is, therefore, not tenable. Lower appellate Court has not directed payment of decretal amount of defendant Nos.3 to 5 to them out of the balance sale consideration payable in this case. On the contrary, lower appellate Court has simply given liberty to defendant Nos.3 to 5 to seek execution of their decree dated 31.03.2001 against the sale proceeds or the balance sale consideration payable in this case. There is no error in the said observation of the lower appellate Court because decree dated 31.03.2001 has been passed in favour of defendant Nos.3 to 5 and they are entitled to execute the said decree in accordance with law. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding of the Courts below regarding RSA No.425 of 2011 (O & M) -9- execution of the impugned agreement is not even being challenged by counsel for the appellant. Even otherwise, the said finding is based on proper appreciation of evidence and cannot be said to be perverse or illegal in any manner. For the reasons already recorded, there is no ground for declining the relief of specific performance of the impugned agreement. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is accordingly dismissed in limine. 25.01.2011. ( L. N. MITTAL ) A. Kaundal JUDGE