R.S.A No. 320 of 2007 (O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 320 of 2007 (O&M) Date of decision : March 17, 2010 Mehar Singh, ...... Appellant (s) v. Rajinder @ Jamadar Singh and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. Amit Jain, Advocate for the applicant. Mr. B.R.Mahajan, Advocate for respondent No.1. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J (Oral) This appeal has been filed against concurrent judgments of the Courts below decreeing the suit of the plaintiff/respondent No.1 for specific performance of the agreement to sell. The facts are that the appellant and respondent No.1 had jointly agreed to purchase the land of the other respondents. Regarding some of the land under the same agreement, different sale deeds were admittedly executed. Originally, the date of execution of the sale deed of this disputed property was 30.9.1990 but it was subsequently extended to 31.12.1992. R.S.A No. 320 of 2007 (O&M) ::2:: On 17.12.1992, the appellant purchased the entire remaining property measuring 1 bigha 14.1/2 biswas. It is thereafter that respondent No.1 filed the instant suit. Both the Courts below have decreed the suit and that is how the present appeal has been filed. The following questions have been proposed :- “ a) Whether in the facts and circumstances of the instant case the approach of the learned Courts below in decreeing the suit for specific performance filed by the plaintiff/respondent affecting the rights of the appellant, is not illegal and contrary to the settled legal position ? b) Whether on account of considerable delay in filing the suit for specific performance, the relief of specific performance could be granted by the learned Courts below particularly when third party i.e the appellant had come in ?” In regard to question No. (a), counsel for the appellant has argued that respondent No.1 stated in his oral testimony that he had sent a legal notice to the vendor but no such legal notice was produced on record. He has further stated that respondent No.1 admitted in his cross- examination that the affidavit dated 1.1.1993 (to show readiness and willingness) was actually got executed on 3.1.1993. He has, thus, argued that in view of this evidence, his case that in fact respondent No.1 had expressed his inability to purchase the property and that is why the appellant had purchased it, has been established. In this regard, counsel for the appellant has relied upon Sita Ram and others vs Radhey Shyam, 2007 R.S.A No. 320 of 2007 (O&M) ::3:: (4) RCR (Civil) 533 wherein the Hon'ble Supreme Court has held that the plaintiff in the said case was required to prove continuous readiness and willingness from the date of the contract to the time of hearing and that failure to make good that averment would lead to inevitable dismissal of the suit. Counsel for the appellant has further relied upon para 10 of the aforesaid judgment which reads as follows :- “ 10. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.” With regard to question no. (b), counsel for the appellant has relied upon K.S.Vidyanadam vs Vairavan, 1997(2) RCR (Civil) 312, wherein the Hon'ble Supreme Court has held as follows :- “ 14. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2-1/2 years in clear violation of the term of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices-according to the defendants, three times- R.S.A No. 320 of 2007 (O&M) ::4:: between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff. 15. Sri Sivasubramanium then relied upon the decision in Dr. Jiwan Lal & Ors v. Brij Mohan Mehra & Anr., 1973(2) SCR 230 to show that the delay of two years is not a ground to deny specific performance. But a perusal of the judgment shows that there were good reasons for the plaintiff to wait in that case because of the pendency of an appeal against the order of requisition of the suit property. We may reiterate that the true principle is the one stated by the Constitution Bench in Chand Rani. Even where time is not of the essence of the contract, the plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property.” In my opinion, both the questions have to be answered against the appellant. It would be seen that in both the aforesaid cases what has been observed by the Hon'ble Supreme Court is that the matter of specific performance must be determined not only by the letter of contract but by the conduct of the parties. In the present case, admittedly the appellant purchased the property two weeks prior to the date fixed in the agreement to sell. There is no evidence that the appellant ever informed the proposed co- R.S.A No. 320 of 2007 (O&M) ::5:: vendee (respondent No.1) that he was purchasing the land. There is only a bald statement of the appellant that the vendor informed him that his brother had expressed disinclination to purchase the land since he did not have the money and that in these circumstances, the appellant was constrained to purchase the entire land. In my view, this can hardly be called reasonable conduct. Both the appellant and respondent No.1 had jointly agreed to purchase the property and in fact they purchased most of the property jointly which had been agreed to be sold. Thus, keeping in view the comparative conduct of both the parties, I find that the findings recorded by the Courts below cannot be held to be so perverse so as to justify interference by this Court under Section 100 of the C.P.C. As regards delay, counsel for respondent No.1 has argued that at the time of agreement, possession of the entire land had been given to the vendees, and since respondent No.1 was in possession he was trying to persuade his brother to stick to the original agreement and it was only when negotiations did not bear fruit and time was running out that the suit was filed. Consequently, holding the questions proposed against the appellant, this appeal is dismissed with no order as to costs. As the main appeal has since been dismissed, all the pending civil miscellaneous applications, if any, also stand disposed of. ( AJAY TEWARI ) March 17, 2010. JUDGE `kk' R.S.A No. 320 of 2007 (O&M) ::6::