IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2027 of 2010 Date of Decision: September 08, 2010 Firoj Khan …Petitioner Versus Smt. Lajwanti and others … Respondents CORAM: HON’BLE MR. JUSTICE ALOK SINGH 1. Whether reporters of local news papers may be Allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Adarsh Jain, Advocate for the petitioner. Mr. Raj Mohan Singh, Advocate, for the respondents. Alok Singh, J. Plaintiff – petitioner has invoked revisional jurisdiction of this Court under Article 227 of the Constitution of India, challenging the order dated 06.11.2009 passed by the learned Civil Judge (Junior Division), Palwal, whereby the learned Civil Judge has repudiated and cancelled the agreement to sell dated 20.03.1998 while exercising the jurisdiction / power under C.R. No. 2027 of 2010 Section 28 of the Specific Relief Act, 1963 (hereinafter referred to as the Act, 1963). The brief facts of the present case are that the plaintiff – petitioner herein preferred a suit for specific performance of the contract on the basis of agreement to sell dated 20.03.1998. Learned Trial Court vide judgment and decree dated 14.10.2005 decreed the suit for specific performance of the plaintiff with a direction to the plaintiff to make the payment of balance sale consideration within two months from the date of passing of the judgment and defendants were also directed to execute the sale deed as per the terms and conditions of the agreement dated 20.03.1998. Defendants has moved an application before the learned Trial Court under Section 28 of the Act, 1963 on 10.01.2005 requesting the Court to repudiate / cancel the agreement to sell dated 20.03.1998 contending that plaintiff miserably failed to pay the balance sale consideration within two months as directed by the learned Trial Court vide judgment and decree dated 14.10.2005. Plaintiff – petitioner herein also moved an application before the learned Trial Court on 10.01.2006 purported to be under Section 151, 152 and 153 C.P.C. seeking modification in the judgment and decree dated 14.10.2005 2 C.R. No. 2027 of 2010 contending therein that defendant No.2, namely, Ramdevi has already performed her part of contract and executed the sale deed of her ½ share of the suit land in the name of nominees of the plaintiff namely Subarti and Kalu for Rs.80,000/- on 30.05.2000. Hence, sale consideration directed to be paid by the plaintiff within two months from the date of the decree shall be modified after reducing half share of defendant No.2. Learned Trial Court vide order dated 06.11.2009 dismissed the application moved by the plaintiff by observing that sale deed was executed by defendant No.2 to the nominees of the plaintiff on 30.05.2000, however, plaintiff failed to carry out amendment in the plaint, incorporating that defendant no.2 has executed the sale deed of her ½ share in favour of nominee of the plaintiff, hence, judgment and decree passed by the learned trial Court requires no modification. It was further observed by the learned trial Court that Section 152 C.P.C. does not empower the trial Court to modify the decree even if contention of the plaintiff is accepted that during the pendency of the suit, defendant no.2 had already performed his part of the contract by executing the sale deed in favour of the nominees of the plaintiff. 3 C.R. No. 2027 of 2010 On the same date i.e. 06.11.2009, the learned Trial Court allowed the application moved by the defendant herein under Section 28 of the Act, 1963, thereby directing to repudiate / cancel the agreement dated 20.03.1998 for the fault of the plaintiff by not making the payment of sale consideration within two months from the date of the decree. I have heard learned counsel for the parties and perused the record carefully. Learned counsel for the plaintiff stated that in view of the admitted fact that defendant No.2 had already performed her part of the contract by executing sale deed in favour of the nominees of the plaintiff, judgment / decree ought to have been modified directing the plaintiff to pay the sale consideration limited to the share to defendant no.1 which was wrongly refused by the learned trial Court. Learned counsel for the plaintiff – petitioner further argued that there was reasonable ground before the plaintiff not to make payment of the entire sale consideration in compliance of the judgment and decree dated 14.10.2005 which ought to have been considered by the learned Trial Court while considering the case under Section 28 of the Act, 1963. 4 C.R. No. 2027 of 2010 Learned counsel, appearing on behalf of the respondents – defendants states that admittedly no sale consideration was paid by the plaintiff within two months from the date of the decree dated 14.10.2005, hence, learned trial Court was well within its jurisdiction by passing the impugned order dated 06.11.2009. Learned counsel for the respondents has placed reliance on the judgment of the Apex Court in the matter of V.S. Palanichamy Chettiar Firm vs. C. Alagappan & another, reported in 1999(1) Civil Court Cases, 712 . Undisputedly, during the pendency of the case, defendant No.2 had performed her part of the contract and had executed sale deed of her half share in favour of the nominees of the plaintiff after receiving Rs.80000/-. Undisputedly, subsequent event of execution of the sale deed by defendant No.2 was not taken into consideration by the learned Trial Court while passing the impugned judgment. There seems to be a valid ground before the plaintiff for not making payment of the entire remaining sale consideration in view of the above undisputed facts. Plaintiff cannot be directed to deposit / pay entire sale consideration while ½ share has already been sold to the nominee of the plaintiff for consideration of Rs.80,000/-. Merely because plaintiff did not move application for 5 C.R. No. 2027 of 2010 clarification / modification of the judgment and decree to the effect that remaining sale consideration should be directed to the extent of half share of defendant no.1 till 10.06.2006 will not change the undisputed facts. This is not the case where plaintiff ever refused to pay the sale consideration to the extent of the share of defendant No.1. Rather, it seems that defendant No.1 was adamant for the entire sale consideration for which he was not entitled. Defendant No.1 can ask the sale consideration limited to his share only. In the matter of V.S. Palanichamy Chettiar Firm (supra), Hon’ble Apex Court in paragraph no.17 has held as under:- “17. The agreement of sale was entered into as far back on February 16, 1980, about 19 years ago. No explanation is forthcoming as to why the balance amount of consideration could not be deposited within time granted by the Court and why no application was made under Section 28 of the act seeking extension of time of this period… …. It is not the case of the respondent – decree holder that on account of any fault on the part of the vendor – judgment debtor the amount could not be deposited as per the decree. That being the 6 C.R. No. 2027 of 2010 position, if now time is granted, that would be going beyond the period of limitation prescribed for filing of the suit for specific performance of the agreement though this provision may not be strictly applicable. It is nevertheless an important circumstance to be considered by the Court….” From the dictum of the Apex Court, it can safely be said that if decree-holder is not able to explain as to why the balance consideration is not paid within time granted by the Court or if plaintiff is not able to prove that on account of any fault on the part of the vendor – judgment debtor the amount could not be deposited as per the decree, of course, Court can exercise jurisdiction under Section 28 of the Act, 1963, however, if decree-holder – plaintiff is able to prove as to why sale consideration was not paid then Court ought not to have rescinded / repudiated the agreement to sell and ought to have modified the decree and ought to have extended the time to make deposit of the sale consideration to the extent of share of defendant no.1. In view of the above, order passed by the learned Trial Court dated 06.11.2009 does not stand in the scrutiny of law. Order impugned dated 06.11.2009 is quashed. The plaintiff – petitioner is directed to make 7 C.R. No. 2027 of 2010 payment of the balance sale consideration to the extent of half share of defendant no.1 within a period of two months from today. If such payment is made, defendant no.1 shall execute the sale deed as per the decree dated 14.10.2005 within two months thereafter, failing which same shall be executed by the process of the Court. Petition stands allowed accordingly. September 08, 2010 ( Alok Singh ) vkd Judge 8