Civil Revision No. 2843 of 2009 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2843 of 2009 Date of decision: 18.05.2009. Baldev Narang and others Petitioners Versus Anju Mangla ...Respondent CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Rajeev Aggarwal, Advocate and Mr. Ajit Tewari, Advocate for the petitioners ***** S.D.ANAND, J. The grievance of the defendants-petitioners is that their plea for framing of additional issue had been inappropriately declined by the learned Trial Court. It is apparent from the pleadings of the parties ( copies of plaint, written statement and replication- Annexure P/3, Annexure P/4 and Annexure P/5 respectively) that the plaintiff-respondent filed a “suit for specific performance, possession and permanent injunction” on the basis of agreement dated 9.1.2007 vide which the defendants- petitioners had agreed to sell the land in question to former for the indicated consideration. The allegation proceeds to indicate that the sale deed in terms of agreed terms and conditions, was to be executed and registered by 15.4.2007. The plea raised by the Civil Revision No. 2843 of 2009 -2- *** defendants-petitioners was that the impugned agreement was invalid. The plea, in the alternative, was that the agreement, in any case, was not enforceable after 15.4.2007 as the plaintiff-respondent herself had not complied with the terms and conditions of the impugned agreement dated 9.1.2007 and had thereby forfeited her entitlement to require a specific performance of the impugned agreement. In the context of the plea, it is argued that the plaintiff- respondent had in a malafide manner entered into “a separate and new agreement/deal on 22.5.2007 without involving other two parties Shri Baldev Narang and Dharamdev Narang in terms of agreement (s) dated 9.1.2007 in case it was considered legally valid.” It is also the plea in that context that Vasdev Narang could not sell his undivided share to the plaintiff-respondent and that the property in suit being ancestral, the vendor “could not sell his share to an outsider except by giving his first offer to the other co-sharers, when the property was yet to be partitioned. For appreciation of the controversy, it would be useful to notice the already framed issues and also the proposed additional issues, which are reproduced hereunder:- Already framed Issues:- “1) Whether the defendant entered into an agreement to sell of the land mentioned in para 1 (a) and (b) of the plaint for sale consideration of Rs.55,00,000/- and Rs.62,00,000/- per acre and received Rs.12,37,500/- for land of para no.1 (a) and Civil Revision No. 2843 of 2009 -3- *** Rs.20,00,000/- for land of para No.1 (b) as earnest money ?OPP 2) Whether the plaintiff is/was ready and willing to perform his part of contract? OPP 3) Whether the plaintiff is entitled for a decree of possession by way of specific performance and for permanent injunction as prayed for?OPP 4) Whether the suit is not maintainable in the present form?OPD 5) Whether the plaintiff has not come to the court with clean hands?OPD 6) Relief.” Proposed Additional Issues: “1) Whether the plaintiff has forged and fabricated original agreements dated 9.1.2007 by putting her signatures subsequent to filing of present suit and passing of interim orders dated 17.9.2008 in the present suit?OPD 2) Whether the agreements dated 9.1.2007 are validly executed and whether the said agreements are enforceable between the parties?OPD 3) Whether the present suit is bad for non-joinder of Vasdev Narang?OPD 4) Whether the plaintiff by executing agreement dated 22.5.2007 with Vasdev Narang on new terms and Civil Revision No. 2843 of 2009 -4- *** conditions and at lower price waived off/surrendered the right to enforce agreements dated 9.2.2007 against defendants No. 1 & 2?OPD 5) Whether the time was essence of contract, with respect to agreements dated 9.1.2007 ?OPD” Learned Trial Court was of the view that no additional issues are required to be framed inasmuch as those proposed are covered by the already framed issues. In support of the finding obtained that the application is not bonafide, the learned Trial Court noticed that the written statement and replication came to be filed on 2.9.2008 and 9.9.2008 respectively, and issues on the basis thereof, were framed on 17.9.2008. No objection with regard to frame of the issue was taken up at that time. Thereafter, a plea under Order 1 Rule 10 C.P.C. to implead Vasdev Narang as a necessary party was filed by the defendants-petitioners and the learned Trial Court held that Vasdev Narang aforementioned was not a necessary party. It further held that since an issue with regard to (the factum and) the validity of the impugned agreement dated 9.1.2007 had already been framed, it will take care of the objections raised by defendants- petitioners qua the validity thereof. The learned counsel for the defendants-petitioners argues that the framing of additional issue would be indicative of the precise controversy which, in turn, was based upon the pleas taken up by the defendants-petitioners in the written statement. The plea raised is misconceived. The plaintiff-respondent Civil Revision No. 2843 of 2009 -5- *** would be required to discharge the onus of proving issue no.1. That issue of affirmative character would require the plaintiff/respondent to prove that defendants-petitioners entered into the impugned agreement and received the earnest amount as well. In rebuttal of that affirmative evidence, the defendants-petitioners shall be entitled to adduce evidence to prove their plea that the impugned agreement is forged and fabricated for the reasons mentioned in the relevant pleadings at the trial. It is further in rebuttal of the affirmative evidence under issue no.1 that defendants-petitioners shall be entitled to adduce evidence in respect of their other pleas which are indicated by proposed issue no.4. In the light of foregoing discussion, the petition is held to be denuded of merit and is ordered to be dismissed. May 18, 2009 (S.D.Anand) Pka Judge