HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 416 of 2000 Reserved on: 27.9.2010 Decided on: 26.10.2010 Om Parkash and another ……Appellants. Versus Bholi Devi ………Respondent Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellants: Mr.G.D. Verma, Senior Advocate, with Mr.B.C. Verma, Advocate. For the respondent: Mr.Satyan Vaidya, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellants under Section 100 of the CPC against the judgment and decree, dated 1.7.2000, passed by the learned District Judge, Shimla, H.P., vide which, he allowed the appeal filed by the respondent and the judgment and decree passed by the learned Sub Judge, Court No.III, Shimla, dated 30.12.1997, dismissing the suit of the respondent, was set aside. 2. Briefly stated, the facts of the case are that Smt.Bholi Devi, respondent, hereinafter also referred to as the plaintiff, filed a suit for specific performance of agreement and for consequential relief of declaration. It was alleged by the plaintiff that she had filed a suit ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - for declaration and injunction against defendant No.2 and one Mr.Kali Ram and Smt.Parvati Devi, which was pending in the court of learned Sub Judge, Court No.2, Shimla. It was also alleged that during the pendency of the suit, the appellant, hereinafter also referred to as the defendants, entered into an agreement with the plaintiff on 2.12.1992. As per the agreement, defendant No.1 had agreed to transfer by way of gift deed, the land measuring 13 bigha and 10 biswas out of the land of his share in Mauja Makrog. The plaintiff had agreed in this agreement to forego her claim in the said suit against defendant No.2 etc. It was agreed by defendant No.1 that he would execute the gift deed on 8.12.1992 in favour of the plaintiff and after the execution of such gift deed, the plaintiff was required to withdraw the suit. It was alleged that the plaintiff is willing to perform her part of contract, but defendant No.1 had failed to perform his part. Defendant No.1 did not come on 8.12.1992 to execute the gift deed in favour of the plaintiff. A notice was issued by the plaintiff but the defendant did not perform his part of the contract. It was further alleged that defendant No.1 executed a relinquishment deed, dated 11.12.1994, in favour of defendant No.2, which is illegal in view of the agreement dated 2.12.1992 and the said relinquishment deed be declared as null and void. 3. Defendants took up preliminary objections. On merits, they pleaded that no compromise took place between the parties in the earlier suit. It was also - 3 - alleged that the earlier suit was between Smt.Bholi Devi, Het Ram, Kali Ram and Parvati and defendant No.1 had not agreed nor was required to make the gift of his share in favour of the plaintiff. The alleged agreement is illegal and without consideration and the same is void. The defendant also pleaded that the relinquishment deed executed by defendant No.1 in favour of defendant No.2 is legal and not revocable. 4. On the pleadings of the parties, the issues were settled by the learned trial Court. Out of these issues, issues No.1 and 2 are the most material and are being reproduced below: “1. Whether the plaintiff is entitled for the relief of specific performance, as alleged? OPP 2. Whether the relinquishment deed dated 11.2.94 is null and void if so, its effect? OPP” 5. The parties led their evidence and the learned trial Court, vide its judgment, decided both issues No.1 and 2 as against the plaintiff and in favour of the defendants and consequently dismissed the suit of the plaintiff. On appeal, those findings were reversed and the suit of the plaintiff was decreed, hence the present appeal filed by the defendants. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The main questions raised by the learned counsel for the appellant were that the defendant No.1/ - 4 - appellant No.1 was not a party to the previous suit pending in between the plaintiff and defendant No.2 and others and as such he was not bound to enter into any such agreement. It was also submitted that no consideration had passed in favour of defendant No.1 and as such the agreement being without consideration was not valid one. It was also submitted that the relief was discretionary and in case the plaintiff had failed to prove her case that she was ready and willing to perform her part of contract, the relief could be declined by the court, which was rightly declined by the learned trial Court and as such, the findings are liable to be reversed. 8. On the other hand, the learned counsel for the respondent had supported the impugned judgment for the reasons given therein supplementing it by the submission that Om Parkash, defendant No.1, was a practicing Advocate and had not signed the blank papers and was well aware of the contents of the agreement. It was also submitted that the consideration in his favour was that the litigation against his brother should be withdrawn and accordingly he had agreed to execute the agreement which cannot be said to be void since consideration was there. 9. The appeal was admitted by this Court on the substantial questions of law as framed on 10.11.2010. The main questions were as to whether the findings of the learned District Judge are vitiated on account of mis- appreciation and as to whether a decree for specific - 5 - performance of contract could be passed against a third party who was not a party. 10. It was also submitted that the respondent was not ready and willing to perform her part of contract since she was required to withdraw the suit before 8.12.1992 and the same in fact was withdrawn after the said date. Thus, it was submitted that the appeal was liable to be allowed on these substantial questions of law. 11. Coming to the evidence led by the parties, the plaintiff had appeared in the witness box as PW-1 and had proved that the agreement Ext.PW-1/A was executed which was signed by defendant No.1. She has also stated about the contents of the agreement vide which defendant No.1 had agreed to execute the gift deed and she had agreed to withdraw the suit. She stated that thereafter, she also withdrew the suit but the defendant did not execute the gift deed and he did not come as per the terms and conditions on 8.12.1992 to the office of the Tehsildar. She requested defendant No.1 to execute the gift deed and thereafter filed the suit after the issuance of the notice. She admitted that defendant No.1 was not a party to the suit, though others were party to the suit. She admitted that she had no dispute with Om Parkash about the land. She denied the suggestion that this agreement was executed forcibly. 12. PW-3 Kali Ram is the husband of the plaintiff and has stated that defendants No.1 and 2 are his brothers and the agreement Ext.PW-1/A was executed on - 6 - 2.12.1992. He stated that the agreement was signed by others also and it was scribed by one Sham Lal. He admitted that Bholi Devi, Het Ram, Kali Ram and Parvati were a party to the earlier suit. PW-2 Janki Ram is a witness to the agreement Ext.PW-1/A. 13. DW-1 Om Parkash, defendant No.1, has denied that he executed any agreement. He admitted that he is a practicing Advocate and has been practising in District Courts and High Court. He was aware of the suit filed by the plaintiff against his brothers and others and had admitted his signatures on the agreement Ext.PW-1/A. He admitted that there were disputes in between the husband of the plaintiff and defendant No.2 and the plaintiff’s husband came and told him to effect the compromise and accordingly in good faith, he signed the agreement. His statement that he had signed the document without going through the contents of the same does not inspire confidence, since he was a practicing Advocate and was well aware of the document executed. 14. Thus, the above facts fully prove that the agreement was executed by defendant No.1, who admitted that he was not a party to the earlier suit pending in between the husband of the plaintiff and his brother defendant No.2. The main question which arises for consideration is as to whether the agreement was without consideration or since defendant No.1 was not a party to the suit, whether he could validly execute the agreement in favour of the plaintiff. - 7 - 15. The learned District Judge, in his judgment, had concluded that the findings of the learned trial Court are incorrect that the agreement was without consideration. The consideration has been defined in Section 2(d) of the Contract Act as under: “(d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise;” 16. To substantiate his submissions, the learned counsel for the appellants had relied upon the decision in Bishandayal and sons versus State of Orissa and others, (2001) 1 Supreme Court Cases 555, where one of the terms of the agreement of sale was that the appellants would withdraw their suit for specific performance and the suit was not withdrawn. It was held that the plaintiff cannot be said to be ready and willing to perform their part of the agreement. This decision is different from the facts of the present case because in the present case, the suit was withdrawn by the plaintiff in pursuance of the agreement Ext.PW-1/A. 17. A reference was also made to the decision in Ku.Sonia Khatia versus State of U.P., AIR 1981 Supreme Court 1274, wherein the term ‘consideration’ was described as under: - 8 - “ “Consideration” means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transferor to the transferee. Similarly, when the word ‘consideration’ is qualified by the word ‘adequate’, it makes consideration stronger so as to make it sufficient and valuable having regard to the facts, circumstances and necessities of the case.” 18. On the other hand, the learned counsel for the respondent had relied upon the decision in Silvey & Ors. Versus Arun Varghese & Anr., AIR 2008 Supreme Court 1568, wherein the agreement had cast obligation on vendors to get property registered as Rubber Estate and get licence for planting rubber plants. Plaintiff was always ready and willing to perform his part. Vendors/defendants, however, have failed to obtain registration and licence from Rubber Board and also raised false plea in the written statement. It was held, on the facts of the case, that the plaintiff was entitled to decree for specific performance. 19. It is, therefore, clear that the promisee were the defendants in the previous suit including defendant No.2 Het Ram. Defendant No.1 was the other person, who agreed to transfer the suit land in favour of the plaintiff in consideration of her promise to withdraw the earlier suit. Thus, it was concluded by the learned District Judge and rightly so that the agreement cannot be said to be without consideration for the reason that defendant No.1 was not a party to the earlier suit which - 9 - the plaintiff promised to withdraw as per the agreement. The consideration can be in cash or kind or it can be at the desire of promisee or another person and as such the agreement in question was enforceable and was not without consideration. The learned First Appellate Court had also considered the question that the mere fact that defendant NO.1 was not a party to the previous suit, it cannot be said that the agreement was without consideration and not legally enforceable. The consideration certainly was there and the plaintiff acted upon that and withdrew the suit within a period of limitation though after the date fixed since she had waited for defendant No.1 to perform his part of the agreement. Once defendant No.1 did not come for the execution of the gift deed and she performed her part of the contract by withdrawing the suit and as such it can be said that she was ready and willing to perform her part of the agreement. 20. From the above discussion, it is clear that the mere fact that defendant No.1 was not a party to the earlier suit cannot lead to the inference that the agreement in question was without consideration. The consideration was there which was that the plaintiff was to withdraw the suit filed by her against the brother of defendant No.1 and it was a valid consideration, as discussed above. Therefore, the findings of the Appellate Court holding that the plaintiff was entitled to the relief are based upon correct appreciation of evidence and - 10 - evidence and such findings do not call for an interference by this Court. 21. In view of the above discussion, the appeal filed by the appellant is dismissed. However, the parties are left to bear their own costs. Oct.26, 2010. (V.K. Ahuja), (TILAK) Judge.