RSA No.1589 of 1984 - 1 - ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1589 of 1984 Date of decision:04.07.2011. Jeet Singh alias Jeetan (deceased) through his LRs. ...Appellant Versus Daulat Ram and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. I.K.Mehta, Senior Advocate, with Mr. R.K.Dogra and Mr. M.S.Kohli, Advocates, for the appellant. Mr. R.S.Sihota, Senior Advocate, with Mr. Ashok Sharma, Advocate, for the respondent. ***** Rakesh Kumar Jain, J. The substantial question of law involved in this appeal is as to “whether the relinquishment of a claim under Section 12 of the Specific Relief Act, 1963 [for short “the Act”] can be made at any stage of the suit or appeal without incorporating specific pleadings”. The plaintiff is in second appeal against judgment and decree of both the Courts below by which his suit for specific performance of an agreement to sell has been partly decreed for recovery of `44,000/- and the mortgagee rights held by the plaintiff in the suit land were ordered to be continued. The brief history of this case is that the plaintiff filed the suit for specific performance of an agreement to sell alleging that defendant No.1 (Daulat Ram) was the owner in possession of land measuring 72 Kanals, situated within the revenue estate of village Chhainsa, Tehsil Ballabgarh, District Gurgaon, who agreed to sell it to the plaintiff for a consideration of RSA No.1589 of 1984 - 2 - ****** `65,000/- on 04.07.1977. It transpired between the parties that out of the sale consideration of `65,000/-, a sum of `16,000/- would be retained by the plaintiff towards mortgage money payable by defendant No.1 to the plaintiff in respect of four mortgage deeds dated 10.06.1974 each for `4,000/-, out of the remaining sale consideration, a sum of `44,000/- was paid as part payment at the time of execution of the agreement and the balance sale consideration of `5,000/- was agreed to be paid at the time of registration of sale deed on 30.05.1978. It was averred by the plaintiff that he has always been ready and willing to perform his part of the contract for the purpose of execution and registration of the sale deed. In this regard, he had approached defendant No.1 several times and also attended the office of the Sub Registrar on 30.05.1978 along with requisite amount for registration of sale deed, but defendant No.1 did not turn up, rather he got a collusive suit filed against himself from defendant Nos.2 to 5 bearing Civil Suit No.614 of 1978 and transferred the suit land by filing an admitted written statement in their favour. On these broad facts, the plaintiff prayed for decree for specific performance of the agreement to sell dated 04.07.1977 on receipt of `5,000/- and in the alternative, recovery of `65,000/- with costs of the suit and future interest @ 12% per annum from the date of filing of the suit till its actual realization. It was admitted in the written statement that defendant No.1 is recorded as owner of the suit land but execution of agreement to sell was denied. Defendant No.1 denied the receipt of `44,000/- as part payment. He alleged that his thumb impressions might have been taken on a blank stamp paper under influence of liquor alleging it to be special power of attorney in favour of Bed Ram for sanction of mutation of mortgage created by him in favour of the plaintiff. The impugned judgment and decree dated 22.12.1978 in favour of defendant Nos.2 to 5 was tried to be justified. On the pleadings of the parties, following issues were framed by the learned Trial Court : - “1. Whether the defendant No.1 entered into impugned agreement with the plaintiff? If so the terms and the effect thereof? RSA No.1589 of 1984 - 3 - ****** 2. Whether the plaintiff has been and is ready and willing to perform his part of contract?OPP. 3. Whether the impugned judgment and decree is illegal, collusive, fraudulent and not binding on the rights of the plaintiff, as alleged in para No.8 of the plaint? If so, the effect thereof?OPP. 4. Whether the suit is not maintainable in the present form?OPD. 5. Whether the plaintiff has no locus standi to file the suit?OPD. 6. Whether the land in question is ancestral, as alleged in para No.8 of the written statement?OPD. 7. Relief.” The learned Trial Court, while deciding issue No.1, categorically held that defendant No.1 had entered into the impugned agreement to sell dated 04.07.1977 (Ex.P4) and had also received `44,000/- as part sale consideration vide receipt (Ex.P5). While deciding issue No.2, it was held that the plaintiff was always ready and willing to perform his part of the agreement. Issues No.3 & 6 were taken up together in which it was held that the suit land is ancestral, therefore, defendant Nos.2 to 5 have 3/4th share in the suit land, the other land is standing in the name of defendant No.1 and thus specific performance of the agreement to sell could not ordered and the impugned judgment and decree was held valid to the extent of 3/4th share of the land involved therein. It was further held that the plaintiff is entitled to recover `44,000/- from defendant No.1 alone and his mortgagee rights in the suit land shall be continue to subsist. Aggrieved against the judgment and decree of the learned Trial Court, the plaintiff preferred statutory first appeal in which it was observed that “the findings on issues 1, 2, 4 and 5 were not challenged before me by the respondents. They are thus affirmed”. The findings on issues Nos.3 and 6 were basically assailed but the appeal was ultimately dismissed on 09.01.1984. However, the learned First Appellate Court had recorded that the appellant's RSA No.1589 of 1984 - 4 - ****** counsel had argued before it that though the plaintiff/appellant is entitled to grant of specific performance of the agreement to sell with regard to the entire land, but if it is not possible, decree may be granted to the extent of the share of respondent No.1 (Daulat Ram). The said prayer was declined by the learned First Appellate Court in view of the decision of this Court in the case of Devi Dayal v. Manohar Lal, 1982 Current Law Journal (Civil & Criminal) 83 on the ground that this claim was not pleaded in the plaint and hence, cannot be granted. Aggrieved against the judgment and decree of both the Courts below, the plaintiff filed the present appeal in which notice of motion was issued on 21.08.1984 on the following assertion made by the plaintiff which is reproduced as under: - “Present: Mr. I.K.Mehta, Advocate, for the appellant. ***** Learned counsel for the appellants states that his client is willing to pay the entire consideration for obtaining the decree against the interest of Daulat Ram alone in the property. Notice of motion to issue. To come up on 16th October, 1984.” On 15.11.1984, the following order was recorded by the Court: - “Present: Mr. I.K.Mehta, Advocate, for the appellant. Mr. R.S.Sehota, Advocate, for respondent Nos.1 to 5. ***** The matter is concluded against the appellant by the judgment reported as Devi Dayal v. Manohar Lal, 1982 C.L.J. (C & Cr.) 83 . The learned counsel for the appellant, however, argued that the above ruling was relied upon by Gupta J. in R.F.A. No.75 of 1964, (Ganda Singh v. Surain Singh RSA No.1589 of 1984 - 5 - ****** (deceased) through L.Rs.) decided on 31st May, 1983 and L.P.A. No.627 of 1983 against that judgment has been admitted. To be listed for motion hearing after the decision in the above L.P.A.” On 07.11.1984, the Court had recorded the following order:- “Present: Mr. I.K.Mehta, Advocate, for the appellant. Mr. R.S.Sehota, Advocate, for respondent Nos.1 to 5. ****** To be put up with L.P.A. No.627 of 1983. To come up on 14.11.1984.” On 24.09.1992, the Court had recorded the following order:- “Present: Mr. I.K.Mehta, Sr. Advocate, with Ms. Gurnam Kaur, Advocate, for the appellant. Mr. R.S.Sihota, Advocate, for the respondents. ****** Admitted.” Learned counsel for the appellant has argued that the plaintiff had made up his mind even before the learned First Appellate Court to forgo his claim against 3/4th share of suit property transferred by defendant No.1 in favour of defendant Nos.2 to5 and had claimed that he may be granted decree for specific performance in respect of the 1/4th share of defendant No.1, which has remained with him, after the decree, on the payment of entire sale consideration. However, that prayer was not allowed by the learned First Appellate Court in view of the law prevailing at that time by virtue of the decision in Devi Dayal's case (supra), but the said judgment was subject matter of consideration in the case of Harnam Kaur and others v. Jagtar Singh, 1991 PLJ 604 by which the decision in Devi Dayal's case (supra) has been specifically overruled and it has been held that “we, therefore, hold that the relinquishment under Section 12 of the Act can be made at any stage of the RSA No.1589 of 1984 - 6 - ****** suit or appeal and it is not necessary to incorporate the plea specifically in the pleadings”. Learned counsel for the appellant has submitted that in terms of Section 12 of the Act, a part of the contract can always be performed. In this regard, he has relied upon two decisions of the Supreme Court in the cases of Kalyanpur Lime Works Ltd. v. State of Bihar and another, AIR 1954 S.C. 165, Surjit Kaur v. Naurata Singh and another, AIR 2000 Supreme Court 2927, and various decisions of this Court in the cases of Balkar Singh v. Mohabat Singh and another, AIR 2004 Punjab & Haryana 340, Tej Kaur (deceased by L.Rs.) v. Devinder Kaur and another, AIR 2005 Punjab & Haryana 9 and Bhajan Singh and others v. Jaswant Singh, AIR 2006 Punjab & Haryana 145. Learned counsel for the plaintiff/appellant has also argued that the decree suffered by defendant No.1 in favour of defendant Nos.2 to 5 was fraudulent in order to frustrate the agreement to sell for which he had taken the substantial amount of consideration. In reply, learned counsel for the respondents has submitted that the plaintiff had not pleaded in the plaint for alternative prayer of restricting his claim to the extent of the share of defendant No.1, therefore, he was rightly denied the said claim by the learned First Appellate Court, but at the same time he has admitted that the judgment in Devi Dayal's case (supra) has already been overruled by this Court in the case of Harnam Kaur and others (supra) in which ultimately the decree was not granted to the plaintiff on the ground that decree for specific performance is a discretionary relief which could not have been granted because of efflux of time and the default on the part of the plaintiff by not asking for it earlier. He has further submitted that since notice of motion was issued only on the issue of the claiming the share of Daulat Ram (defendant No.1), the plaintiff cannot challenge the decree suffered by Daulat Ram in favour of defendant Nos.2 to 5. I have heard both the learned counsel for the parties and perused the record with their able assistance. RSA No.1589 of 1984 - 7 - ****** Before referring to the admitted facts and the law relied upon by both learned counsel for the parties, it would be relevant to refer to Section 12 of the Act, which reads as under: - “12. Specific performance of part of contract.--(1) Except as otherwise hereinafter provided in this section, the court shall not direct the specific performance of a part of a contract. (2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. (3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either -- (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party-- (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be RSA No.1589 of 1984 - 8 - ****** left unperformed and in a case falling under clause (b), pays or has paid the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant. (4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part. Explanation:-- For the purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject-matter existing at the date of the contract has ceased to exist at the time of its performance.” As per the admitted facts, defendant No.1 had entered into an agreement to sell dated 04.07.1977 (Ex.P4), received `44,000/- vide receipt (Ex.P5) and was obliged to execute the sale deed on 30.05.1978, but he had suffered the decree of 3/4th share of suit property in favour of defendant Nos.2 to 5, who are his wife and minor children, on 22.12.1978 (Ex.P13), whereas the suit was filed by the plaintiff on 02.04.1979. The agreement to sell and receipt, though denied by defendant No.1, have been proved coupled with the readiness and willingness on the part of the plaintiff, but decree for specific performance was not granted on account of transfer of land by defendant No.1 in favour of defendant Nos.2 to 5 vide (Ex.P13). The plaintiff had admittedly not made a prayer before the Trial Court when the suit was decreed on 23.11.1981 that he RSA No.1589 of 1984 - 9 - ****** may be granted the decree in respect of the share of defendant No.1 alone on payment of the entire amount of sale consideration. However, he made this request without pleadings before the First Appellate Court who had dismissed his appeal on 09.01.1984 on the ground that there was no pleadings in this regard in the plaint which was required in terms of the decision of this Court in Devi Dayal's case supra. The fact remains that the suit was decided by the Trial Court within two years of its filing and the appeal was decided within three years. Within the period of 7 years of the agreement, the plaintiff had made a prayer before the First Appellate Court for allowing him to take the remaining share in the hands of defendant No.1 after sufferance of decree dated 22.12.1978 on payment of entire sale consideration to him. Insofar as the question of law that whether a part of the land can be asked for by the plaintiff on the payment of the entire sale consideration even if it is not so pleaded is concerned, that has already been decided by the Division Bench of this Court in the case of Harnam Kaur and others (supra), therefore, this issue is no more res integra as it has been held in Kalyanpur Lime Works Ltd.'s case (supra) that relinquishment of the claim to further performance can be made at any stage of the litigation. In Surjit Kaur's case (supra), it was held that part performance of contract can be accepted by a party at any stage of litigation, but it was also held that once a party selects not to accept part performance, it cannot later on resile or get out of the said election. In the present case, however, there is no evidence to refer to prove that the plaintiff had ever elected not to accept part performance of the contract. In Balkar Singh's case (supra), it was held that this Court can grant decree to the extent of share of the vendor by reducing consideration proportionately. However, in the present case, the vendee/plaintiff is ready to pay the entire sale consideration of the reduced share of the vendor. In Tej Kaur's case (supra), it was held that plaintiffs are entitled to relinquish their claim with regard to damages and with regard to deficiency in land even at the stage of second appeal. In the case of Bhajan Singh and others (supra), it was held that if inability of party to perform part of contract is coming to light, relief of part performance could be claimed even at belated stage. RSA No.1589 of 1984 - 10 - ****** Thus, the law laid down by this Court is consistent after the decision in Harnam Kaur's case that it is not necessary to plead alternative prayer of restricting the claim to the part of the contract in terms of Section 12 of the Act, meaning thereby it would be suffice to relinquish the right of specific performance in respect of the part of the land during the course of hearing. Hence, the substantial question framed in the beginning of the judgment is decided in favour of the plaintiff and against the defendants. Now the question arises as to whether the plaintiff is entitled to decree in respect of the share of defendant No.1 or not as the Courts below have declined the decree and learned counsel for the defendants otherwise has relied upon the later part of the decision in Harnam Kaur's case (supra) in which this Court had exercised the discretion on the ground that the matter was decided by the learned Single Judge on May 31, 1983, and it was for the first time before him that the prayer for relinquishment qua the claim of 46 Kanals 03 Marlas was made. The LPA was decided by the Division Bench of this Court on 28.08.1991 and in this background, it was held that because of efflux of time and default of the plaintiff by not asking it earlier, the discretionary and equitable relief of specific performance could not be granted, whereas in the present case, the suit was filed in 1979 which was decreed with regard to recovery of the part payment in 1981 and in 1983 itself the plaintiff had made a prayer for relinquishment of his right in respect of the share of co-defendant Nos.2 to 5 and had restricted his claim with respect to the share of defendant No.1 alone which was denied only on the ground of law prevailing at that time which has now been overruled. Therefore, the plaintiff had acted in time before the First Appellate Court unlike in Harnam Kaur's case (supra) in which the plaintiff had made the prayer in the second appeal after the expiry of 21 years. Thus, in these circumstances, I am of the view that the plaintiff is entitled to decree for specific performance in respect of the share of defendant No.1 on the payment of entire sale consideration out of which `60,000/- have already been paid and only `5,000/- are left to be paid. The said amount shall be paid/deposited by the plaintiff with the learned Trial Court within three months from the date of receipt of certified copy of this order and defendant RSA No.1589 of 1984 - 11 - ****** No.1 shall execute the sale deed of his share in favour of the plaintiff. In case of refusal on the part of defendant No.1 in executing the sale deed, the plaintiff shall got it registered through the process of Court. The decree be accordingly drawn. Insofar as the remaining land transferred in favour of defendant Nos.2 to 5 is concerned, it would be pertinent to mention here that the plaintiff had only made the prayer for the share of defendant No.1 when notice of motion was issued on 21.08.1984 and has been pursuing his appeal as reflected from order dated 15.11.1984 in that direction only. Thus, I do not agree with the contention of the plaintiff in this regard and as such the prayer made by him in this regard is hereby declined. In nutshell, keeping in view the finding recorded here-in-above, the present appeal is hereby allowed, the decree for specific performance is granted only in respect of the share of defendant No.1 alone on the payment of entire balance sale consideration and the judgments and decrees of the Courts below are hereby modified accordingly with costs throughout. July 04, 2011. (RAKESH KUMAR JAIN) vinod* JUDGE