Vijay A.Mittal vs Kulwant Rai(Dead)Thr. Lrs.

2. In order to appreciate the controversy involved in this appeal, it is necessary to set out the relevant facts hereinbelow.

4. In short, the civil suit out of which this appeal arises was originally filed by one ­ Kulwant Rai as plaintiff No.1 and Atul Kumar as plaintiff No.2 against the defendants, namely, (1) Amar Nath, (2) Yash Pal Mittal, (3) Sunil Mittal and (4) Bal Kishandas.

6. As mentioned above, two aforementioned plaintiffs (respondents herein) filed a civil suit against the aforementioned four defendants (appellants herein) on 19.03.1982 claiming a relief of specific performance of the agreement dated 12.06.1979 in relation to the suit property (as detailed in the plaint) situated at 3 Narain Dass Building, Durga Charan Road, Ambala Cantt.

7. The suit was founded on the agreement dated 12.06.1979 entered into between the plaintiffs and the defendant No.1 (Amar Nath) for sale of the suit property for a sum of Rs.46,000/­. According to the plaintiffs, they paid a sum of Rs.5,000/­ by way of earnest money to defendant No.1 (Amar Nath) and the sale deed in relation to the suit property was to be executed on or before 31.12.1979 by defendant No.1 (Amar Nath) in favour of the plaintiffs on paying the balance consideration before the sub­Registrar.

8. It was alleged that defendant No.1 (Amar Nath) instead of selling the suit property to the plaintiffs in terms of agreement dated 12.06.1979 sold it to defendant Nos. 2 and 3 on 27.11.1981. The plaintiffs alleged that they were ready to perform their part of the agreement but it was defendant No.1 (Amar Nath) who failed to perform his part and committed breach 4 by selling the suit property to defendant Nos. 2 and 3 on a higher price and, therefore, the plaintiffs were constrained to file the suit for seeking specific performance of the agreement dated 12.06.1979.

11. So far as defendant Nos. 2 to 4 are concerned, they filed their written statement. They admitted that the suit property belonged to Amar Nath(defendant No.1). They averred that they purchased the suit property from Amar Nath pursuant to the agreement, which they had entered into with him somewhere in the year 1978. They alleged that they had no knowledge of the agreement of the plaintiffs and, therefore, they were bona fide purchasers of the suit property.

15. The defendants, therefore, felt aggrieved and filed the second appeal before the High Court. By impugned order, the High Court dismissed the second appeal and upheld the judgment/decree of the first Appellate Court.

25. It was, therefore, urged that the First Appellate Court by allowing the appeal filed by the plaintiffs and decreeing their suit has passed two conflicting decrees­one against some which has decreed the suit and other against some which has resulted in dismissal of the suit. It is not legally permissible.

13. The plaintiffs felt aggrieved and filed appeal before the First Appellate Court. By judgment/decree dated 15.04.1993, the First Appellate Court allowed the appeal, set aside the judgment/decree of the Trial Court and decreed the plaintiffs’ suit.

46. It is for all these reasons, we are of the view that the appellants (defendants) have failed to make out any case so as to call for any interference in the impugned judgment.

48. The question arises in this way. The effect of the decree passed in this case is that the original defendant No.1, now represented by his legal representatives (Appellant Nos.1­4 & 7) along with legal representatives of original defendant No. 2, i.e.,

(i) Rita Mittal, (ii) Akanksha and (iii) Akshay Mittal, and defendant No. 3 (Appellant No.6 herein) are required to execute the sale deed in favour of legal representatives of original plaintiff No.1, i.e., 19 respondent No.1(i) Sudesh Goel, (ii) Ajay Goel and

(iii) Sanjay K. Goel and Atul Kumar, plaintiff No.2 (respondent No.2 herein) jointly.

52. We, therefore, consider it just and proper and with a view to end this litigation between the parties, which is pending since 1982 and also to balance the equities amongst the parties that defendant No.1 through his legal representatives 22 (Appellant Nos. 1­4 & 7 herein) would return a sum of Rs.48,000/­ to the legal representatives of defendant No.2 (Appellant No.5 herein) and defendant No. 3 (Appellant No.6 herein). This direction we give by taking recourse to our powers under Article 142 of the Constitution of India to do complete justice between the parties to the lis because we do not want another round of litigation to go on for years in future between the defendants inter se for recovery of this amount.

53. In the light of the foregoing discussion, the appeal is disposed of by modifying the judgment and decree as under:

54. The executing Court will ensure completion of proceedings within the time fixed and record due satisfaction of the decree in accordance with law. In case of any default, the parties will be entitled to put the decree in execution for enforcement of the terms of the decree of this Court amongst the defaulting parties.

55. In view of the foregoing discussion, the appeal stands disposed of.

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