RSA No. 3458 of 2006 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3458 of 2006 (O&M) Date of Decision: September 25, 2009 Smt. Sarita ...... Appellant Versus Parveen Kumar Saini anad others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.C.B.Goel, Advocate with Mr.Nitin Goel, Advocate for the appellant. Mr.Harsh Kinra, Advocate for respondents No. 1 to 3. **** 1. Whether Reporters of local papers 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. With the consent of learned counsel for parties, the preent appeal is taken up for hearing. This appeal has been filed against the concurrent judgments of the Courts below dismissing the suit of the plaintiff-appellant for specific performance even while accepting the agreement to sell executed in her favour. The following questions have been proposed:- i) Whether the appellant is entitled to a decree for specific performance of the agreement when it is clearly proved on record that the same was duly executed between the parties? ii)Whether the respondents No. 1 and 2 who are the subsequent vendees and that too the sale deed has been executed in their favour during the pendency of the suit by none else than RSA No. 3458 of 2006 (O&M) 2 their father acting as attorney of Hem Chand, can challenge the right of the appellant for a decree of specific performance? iii)Whether a subsequent vendee and that too during the pendency of the suit can defeat the rights of the plaintiffs for a decree for specific performance? iv)Whether the judgment and decree of the courts below are sustainable in law and also on facts of the case? The main question argued by learned counsel for the appellant is question No.(i). Learned counsel has argued that the two grounds taken by the learned Appellate Court to disentitle the appellant for a decree of specific performance are:- (i)that the appellant never averred or proved that she was ready and willing to execute the sale deed; and (ii)that this suit is barred by the provisions of Order 2 Rule 2 CPC? Learned counsel has argued that as far as the readiness and willingness of the appellant is concerned, the present was an agreement in which there was no date fixed for the execution of the sale deed; rather the stipulation was that the sale deed would be executed within three months of the final partition and since the respondent-vendors did not take steps to get the property partitioned she filed the instant suit. With regard to the second question learned counsel has stated that no foundation was laid for applying the rule enunciated in Order 2 Rule 2 C.P.C. In reply learned counsel for respondents No. 1 to 3 has argued that leave alone showing readiness and willingness at any time prior to the suit even in the plaint no averment was made. Learned counsel for the appellant has referred to para 8 and of the plaint which is as under:- RSA No. 3458 of 2006 (O&M) 3 “That the plaintiff is always ready and willing to perform his part of the contract of sale and to pay the balance amount of Rs. 84,500/- after deducting Rs.10,000/- already paid as earnest money but the defendants are not ready and willing to perform their part of contract of sale as legal representative of deceased Mam Chand.” In my opinion it cannot be said that the appellant did not illustrate her readiness and willingness. With regard to second reason learned counsel for the respondents has stated that in para 1 of the written statement filed by respondents No. 1 and 2 a specific plea was taken that the appellant having earlier filed a suit for injunction (at the time when she could have filed a suit for specific performance) the present suit was not maintainable. In reply learned counsel for the appellant has argued that in the replication to the said written statement it was clearly averred that the earlier suit had no applicability. As per learned counsel it was incumbent upon the defendants to place on record the pleadings and the judgment of the previous suit to be able to bring home their plea regarding Order 2 rule 2 CPC. Thus, in my opinion question No.(i) has to be answered in favour of the appellant. With regard to questions No.(ii) and (iii) also it cannot be lost sight of that the respondents No. 1 and 2 had purchased the land in 1993 and the present suit having been filed in the year 1988, the sale in their favour would be hit by the doctrine of lis pendens and they, in any case, could not have a better right than the appellant. In this view of the matter this appeal is allowed. The judgments and decrees of the Courts below are set aside and the suit of the RSA No. 3458 of 2006 (O&M) 4 plaintiff-appellant for specific performance is decreed. The appellant shall deposit the balance sale consideration along with the costs imposed in CM No. 8604-C of 2008 within a period of one month from the date of receipt of a certified copy of this order. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE September 25, 2009 sunita