R.S.A. No.1885 of 1998 (O&M) -1- ... IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1885 of 1998 (O&M) Date of Decision :25.08.2010 Amrik Kaur and others ......Appellants Versus Piara Singh and others ......Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present: Mr. Ramneek Vasudeva, Advocate, for the petitioners. Mr. H.N.S. Gill, Advocate, for respondent No.1. Mr. N.S. Sitta, Advocate, for respondents No.2 and 3. AJAY TEWARI, J.(ORAL) This appeal has been filed against the judgments and decrees of the Courts below, decreeing the suit of the respondents for specific performance of agreement to sell executed by the predecessor-in-interest of the appellants. Both the Courts have concurrently held that the respondents had succeeded in proving due agreement to sell as well as the other ingredients of specific performance. The following substantial questions of law have been purposed: “(i) Whether the Ld. Court below was justified in holding that the property in dispute is not a coparcenary/joint property without framing any issue to this effect? R.S.A. No.1885 of 1998 (O&M) -2- ... (ii) Whether the Ld. Courts below were justified in decreeing the suit without framing any issue with regard to that the said property was coparcenary/joint property or not? (iii) Whether the Ld. Lower Appellate court had rightly dismissed the application under Order 41 Rule 27 particularly in the peculiar facts and circumstances of the present case? (iv) Whether the Ld. Courts below were justified in granting specific performance of the agreement to sell, particularly keeping in view the fact that specific provision was incorporated in the agreement dated 18.08.1992 itself for payment of Rs.1.00 lac in case the defendant fails to perform his part of agreement? (v) Whether the Ld. Courts below erred in law in not appreciating the provisions of sections 17 and 20 of the specific relief Act 1963? (vi) Whether the Ld. Courts below were justified in granting specific performance of the agreement to sell despite the plea of inequitable price and there being a specific stipulation in the agreement for grant of damages which was in fact an option to avoid the contract/agreement? (vii) Whether the Ld. Courts below fail to construe the agreement (Ex.P1) in its proper perspective? (viii) Whether the Ld. Courts below were justified in granting decree of specific performance in the present case particularly where a grave hardship is caused to the appellant who is the widow of deceased and there is no other residential accommodation available for the present appellant? (ix) Whether the intention of the parties at the time of agreement was properly appreciated by the Ld. Courts below in terms of provisions of specific relief Act 1963? (x) Whether the clause of damages in the agreement in fact stipulated payment as an alternative to carry out the specific performance of sale, particularly keeping in view the judgment of the Hon'ble Supreme Court reported as 2001 (4) RCR (Civil) 109, AIR 1995 S.C. 1769 and AIR 1996 S.C. 2150? R.S.A. No.1885 of 1998 (O&M) -3- ... (xi) Whether the discretion exercised by the Ld. Lower courts was proper or not in the facts and circumstances of the present case? The Hon'ble Supreme Court in its judgment reported as 2005 (4) RCR (Civil) 36 has held this itself to be a substantial questions of law? (xii) Whether the Ld. Lower Appellate Court fail to take notice of the specific plea taken by the appellant/defendant in the appeal filed before it, thereby causing miscarriage of justice? (xiii) Whether the Ld. Courts below erred in relying the evidence lead by the plaintiff/respondents in which there are material contradictions and which is fatal in the present case?” The arguments raised by learned counsel for the appellants are with regard to questions No.(i), (ii) and (iii). Taking question No.(iii) first, it would be seen that the additional evidence sought to be led before the Lower Appellate Court was with regard to the evidence relating to the coparcenary property. Learned lower Appellate Court found that the appellants could not satisfy the requirement of Order 41 Rule 27. They could not establish that the evidence which they sought to lead was not in their knowledge at the time when the original evidence was led. In fact, learned lower Appellate Court further found that in the written statement the plea had been raised regarding coparcenary property and subsequently held that it could not be believed that the appellants did not know of the said fact. In my opinion, no fault can be found with the reasoning of the learned lower Appellate Court. As regards questions No.(i) and (ii), no doubt, no specific issue was framed with regard to the nature of the property. R.S.A. No.1885 of 1998 (O&M) -4- ... However, I find that the Courts below have considered the issue. It is not disputed that in her testimony, appellant No.1 did not even depose that the property was ancestral. Further the Courts below also noticed that half of the property was inherited by Swaran Singh from his uncle. In the circumstances, the non framing of issue would not vitiate the trial. Thus, all the questions argued by the learned counsel for the appellants have to be answered against them. Consequently, this appeal is dismissed. (AJAY TEWARI) JUDGE 25.08.2010 neetu