IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No.387 of 1992 Decided on : August 18, 2008 Pratap Singh (deceased) through LRs …Appellant. Versus M/s RKB Herbals and others …Respondents. Coram The Hon’ble Mr. R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. K.D. Sood, Advocate. For the Respondents : None. Per Surjit Singh, Judge( Oral ) Deceased Pratap Singh, now represented by his LRs Devender Singh and others, had filed this appeal against the judgment and decree, dated 3rd April, 1992, of learned Single Judge, whereby suit filed by respondent RKB Herbals Pvt. Ltd., now represented by Official Liquidator, against respondent Shanta Lal Chopra, for specific performance of contract for sale of a flat forming part of a building standing on Khasra No.597/493/ 119/9, situate near Timber House, Cart Road Shimla, in Station Ward/Bazaar Ward, Bara Shimla, has been decreed. 2. M/s RKB Herbals filed the suit for specific performance of the contract with respect to the sale of the aforesaid flat, hereinafter referred to as suit flat, allegedly Whether reporters of the local papers may be allowed to see the judgment? …2… executed in its favour by respondent Shanta Lal Chopra, hereinafter referred to as defendant. M/s RKB Herbals Pvt. Ltd. shall hereinafter be referred to as plaintiff-company. It was alleged that defendant entered into an agreement with the plaintiff-company on 30th October, 1985 for the sale of the suit flat for a consideration of Rs.2,75,000/-. A sum of Rs.25,000/- was paid by way of earnest money. It was agreed that the construction of the flat would be completed by 30th April, 1986 and possession also delivered by the aforesaid date. However, construction could not be completed by the stipulated date. Defendant, on a demand by him, was paid by the plaintiff-company another sum of Rs.25,000/- on 4th March, 1986. Plaintiff-company had been approaching the defendant continuously for the execution of the sale deed in respect of the suit flat. Plaintiff-company received a letter, dated 30th April, 1987 (Ex. P-5), from the defendant, wherein it was stated that the cost of the flat was Rs.4,47,750/-. That letter was replied to by the plaintiff-company vide letter dated 15th April, 1987, in which it was denied that the cost of the flat was 4,47,750/-, as alleged in Ex. P-5, but its agreed sale consideration was Rs.2,75,000/-. Another letter dated 24th April, 1987, Ex. P-7, was received by the plaintiff-company from the defendant calling upon it to pay Rs.4,47,750/- minus the amount of Rs.50,000/- already paid, by 30th April, 1987. That letter was replied to by the plaintiff-company on 29th April, 1987, vide Ex. P-8. Protest was lodged that the defendant had been making claim for higher amount of money …3… than the agreed sale consideration. Ultimately, the plaintiff- company filed a suit for specific performance of the agreement. 3. Defendant Shanta Lal Chopra contested the suit and inter alia pleaded that on 7th May, 1987 he had leased out the suit flat to deceased appellant Pratap Singh, on monthly rent of Rs.1,000/-, and that on 23rd May, 1987, he had entered into an agreement with said deceased Pratap Singh for the sale of the suit flat for a consideration of Rs.4,60,000/-. 4. Learned Single Judge of this Court, who tried the suit, framed various issues. However, no issue was framed with respect to the allegation of defendant Shanta Lal Chopra that he had already entered into an agreement with deceased Pratap Singh for the sale of the suit flat for a consideration of Rs.4,60,000/- and even prior to the execution of that agreement he had put said deceased Pratap Singh in possession of the flat, as a tenant. 5. Learned Single Judge has dealt with this matter in the judgment under appeal and observed that defendant Shanta Lal Chopra, while in the witness-box as DW-1, had made a statement contradictory to his pleaded version, inasmuch as in the written statement it was stated that the suit flat had been agreed to be sold to Pratap Singh but while in the witness-box as DW-1, he stated that it had only been leased out. 6. We find, on perusal of the statement of DW-1, that the learned Single Judge perhaps omitted to read the …4… statement of DW-1 in its entirety. The witness stated, in no uncertain terms, that initially he had leased out the flat to deceased Pratap Singh on 7th May, 1987, on monthly rent of Rs.1,000/- and that on 23rd May, 1987, he entered into a contract for the sale of the said flat with said deceased Pratap Singh for a sale consideration of Rs.4,60,000/- and also received a sum of Rs.3,00,000/-, as part of sale consideration. This is exactly what deceased Pratap Singh has said in his grounds of appeal. Even though deceased Pratap Singh was not a party to the suit, he was allowed by this Court to file the appeal vide order dated 16th April, 1993. 7. Taking into consideration the abovestated position, we are of the considered view that deceased Pratap Singh, now represented by his LRs, was a necessary party to the suit filed by the plaintiff-company against Shanta Lal Chopra, because the latter had taken a specific plea in his written statement that before the institution of the suit he had entered into an agreement for the sale of the suit flat with deceased Pratap Singh and had received a sum of Rs.3,00,000/-, by way of part payment of sale consideration from said Pratap Singh. Consequently, we allow this appeal, set aside the judgment and decree of the learned Single Judge and remand the case to the learned Single Judge with the direction to afford an opportunity to the plaintiff-company, which has now been wound up and is represented by the Official Liquidator, to implead deceased Pratap Singh, through his LRs, as necessary party to the suit and if the plaintiff- …5… company impleads said Pratap Singh, through his LRs, as defendant, to give such LRs an opportunity to defend the suit and to decide the same after trying it anew. Appeal stands disposed of. ( R.B. Misra ), J. August 18, 2008(sd) ( Surjit Singh ), J.