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2003 DIGILAW 467 (MP)

SAMBHAJIRAO v. VIMLESH KUMARI KULSHRESTHA

2003-03-27

R.B.DIXIT

body2003
R. B. DIXIT, J. ( 1 ) JUDGMENT in this appeal shall also govern disposal of First Appeal no. 11 of 2000, (Prahlad Das Agarwal v. Vimlesh Kumari Kulshrestha and another ). ( 2 ) APPELLANT, Sambhajirao, who is owner of the suit house situated at Plot No. 19 in mahalla Angre-Ka-Bada, Lashkar, Gwalior, had entered into an agreement on 1-4-1986 to sell the house to respondent No. 1, vimlesh Kumari, for a consideration of Rs. 48,000/- out of which Rs. 24,000/- were paid as advance. It is also not disputed that respondent No. 1, Vimlesh Kumari, had also filed a Civil Suit No. 228-A/86 in the Court of III Civil Judge, Class II, Gwalior, in respect of the same property, however, it was withdrawn vide order dated 6-5-1987. ( 3 ) RESPONDENT No. 2, Prahladdas had applied to be impleaded as a party in this case on the ground that the appellant had also entered into subsequent agreement dated 9-9-1986 to sell the same house to him for which he filed a separate civil suit for specific performance of the contract which was dismissed, against which an appeal is still pending. ( 4 ) THE learned trial Court, Second Additional Judge to the District Judge, Gwalior vide Judgment dated 18-9-1999 passed in civil Suit No. 13-A of 1987 passed a decree of specific performance of contract in favour of respondent No. 1, Vimlesh Kumari. Feeling aggrieved against which present appeal has been filed by owner of the house. ( 5 ) IT has been contended for the appellant that respondent No. 1 was residing in a portion of the house and the agreement to sell was only about the portion which she was occupying as a tenant and not about the whole house. It was also contended that respondent No. 1 was never willing and ready to perform her part of the contract and, therefore, the learned trial Court erred in passing a decree for specific performance. ( 6 ) LEARNED counsel of respondent No. 1 has, however, supported the findings of the learned trial Court. ( 7 ) I have considered the rival submissions of the learned counsel of parties and have carefully perused the record. ( 8 ) AGREEMENT to sell in this case is Ex. ( 6 ) LEARNED counsel of respondent No. 1 has, however, supported the findings of the learned trial Court. ( 7 ) I have considered the rival submissions of the learned counsel of parties and have carefully perused the record. ( 8 ) AGREEMENT to sell in this case is Ex. P- 1 wherein it has been specifically mentioned that the owner, appellant, had agreed to sell the house to respondent No. 1 in which she resides. It has further been mentioned that the map of the residential house shall be prepared and shall be kept with this agreement and in the end all the boundaries of the house had been indicated showing that there is another house of the appellant in the east-west, road in the north and house of Hariram Kapur in the south. It is pertinent to note that no area of the house or any measurement of its portion said to have been occupied by the purchasers finds place in this agreement. It is a two storeyed building but there is no mention in the agreement as to which of the storey or both the storeys are to be sold and how many rooms it contains. ( 9 ) RESPONDENT/plaintiff, Vimlesh Kumari (PW-1) has stated that she was residing in the ground floor along with open land on the northern side. She was also using two rooms, a patore along with open land of the upper portion. She has no knowledge whether there was any partition between the family members of the appellant. In para 9 of her cross-examination she has admitted that she had not received the possession of the disputed house so far. It is on the basis of her statement that the learned counsel of the appellant has submitted that she claims to be a tenant in the house for the last sixteen years before execution of the agreement, and in case, she is not in possession of the disputed house it means that full house was not agreed to be sold to her as it has also been made clear in the agreement itself that appellant had agreed to sell the house wherein she resides. ( 10 ) RESPONDENT-PLAINTIFF in para 12 of her cross-examination has also admitted that no map was, however, attached to the agreement. ( 10 ) RESPONDENT-PLAINTIFF in para 12 of her cross-examination has also admitted that no map was, however, attached to the agreement. She has also admitted that one of the servant of the house-owner was residing in two rooms of the upper storey. In para 17 of the agreement she has admitted that she has withdrawn earlier suit in respect of the same property because of deficiency in the Court-fees. However, the present suit has been filed on the basis of the same plaint. No copy of such plaint has been filed on the record of this Court nor in order dated 6-5-1987 it was mentioned that the suit was withdrawn on account of any deficiency in Court-fees. Thus, there is no evidence that the present case is in continuation of the earlier suit. ( 11 ) CONTRARY to the statement of the plaintiff, witness M. L. Agarwal (PW-2) who claims to be present at the time of the execution of the agreement has stated that the site-map of the house proposed to be sold was available at the time of preparation of agreement. This statement cannot be believed otherwise the map would have been annexed with the agreement. There is no reason why he should not have signed the agreement in case if he was present at that moment. ( 12 ) A. B. Lal (PW-3), husband of the plaintiff has agreed that the description of the house as provided in the plaint is conspicuously absent from the agreement because measurement of length and width has not been mentioned. According to him, upper portion of the house was also included in the agreement while admittedly a servant of the appellant was residing in upper portion of the house, which was not meant to be sold in the agreement. Both, plaintiff and her husband, have admitted that they never approached the appellant along with the remaining consideration for execution of the agreement. It has, therefore, been argued for respondents that the plaintiff was not willing and ready to perform her part of agreement. Both, plaintiff and her husband, have admitted that they never approached the appellant along with the remaining consideration for execution of the agreement. It has, therefore, been argued for respondents that the plaintiff was not willing and ready to perform her part of agreement. ( 13 ) IN the case of Smt. Shaharyar Bano v. Sanwal Das, reported in AIR 1976 SC 2073 , where it was agreed to sell only the portion in occupation of vendors and portion let out to tenants was not included in the agreement it was held that agreement, of vendee in respect of portion let out to tenants must fail. Therefore, mere use of words "entire house" in agreement is immaterial. ( 14 ) IN the case of Nair Service Society changanacherry v. R. M. Palat, reported in air 1968 Ker 311, it has been held that in order to enable a Court to decree specific performance of a contract, the terms of the contract must be clear, definite, certain and complete. The contract must be free from doubt, vagueness and ambiguity so as to leave nothing to conjecture or to be supplied by Court. ( 15 ) IN the case of Smt. Phulihari Devi v. Mithai Lal, reported in AIR 1971 All 494 , it has been made clear that specific performance is an equitable relief and the contract of sale of which specific performance is sought must be definite and precise. If it is uncertain no oral evidence is admissible to add to its terms and the contract would be void under Section 29 of the Contract Act. ( 16 ) IN the case of Shankarrao Ramrao mairal v. Sumati Bhikaji Khiste, reported in air 1971 Guj 178 , it has also been made clear that agreement to sell property is not to be specifically performed unless its identity is the same in all material details. ( 17 ) IN a Division Bench decision in the case of M/s. Mirahul Enterprises v. Mrs. Vijaya Srivastava, reported in AIR 2003 Delhi 15, it was observed that for grant of decree for specific performance under Section 20 of the Specific Relief Act, 1963 rest in the discretion of the Court and cannot be claimed as of right. Parties seeking performance of contract must satisfy all the requirements necessary for seeking relief in equity. Vijaya Srivastava, reported in AIR 2003 Delhi 15, it was observed that for grant of decree for specific performance under Section 20 of the Specific Relief Act, 1963 rest in the discretion of the Court and cannot be claimed as of right. Parties seeking performance of contract must satisfy all the requirements necessary for seeking relief in equity. In exercising discretion, Court is obliged to take into consideration circumstances of the case, conduct of the parties and the respective interests under the contract. At the same time, it should not be lost sight of that the discretion has to be exercised by the Court not arbitrarily but based on sound judicial principles. The first fundamental, which must be proved beyond all reasonable doubts is the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made. Court will not make a contract for the parties. Specific performance will not be ordered if the contract itself suffers from some defect, which makes the contract invalid or unenforceable. In case of an agreement to sell immoveable property, the law requires that it must with certainty identify the property agreed to be sold. ( 18 ) THE Hon'ble Apex Court in the case of Mayawanti v. Kaushalyadevi, reported in (1990) 3 SCC 1 , has held that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the court will not make a contract for them. The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the Courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The acceptance must be absolute, and must correspond with the terms of the offer. The burden of showing the stipulation and terms of the contract and that the minds were ad idem is. of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. The burden of showing the stipulation and terms of the contract and that the minds were ad idem is. of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. ( 19 ) THE learned counsel of appellant has argued that plaintiff has admitted filing of the earlier suit for the same purpose and in respect of the same property, the copy of the order-sheet in the aforesaid case clearly indicates that the case was withdrawn without any liberty to file fresh suit. In the circumstances filing of the subsequent suit is clearly barred under the provisions of Order 23, Rule 1, C. P. C. ( 20 ) TAKING into consideration the facts and circumstances of the case coupled with the implications arising under the decisions referred to hereinabove, It has to be noticed that the agreement In question was vague and the portion of house required to be sold is also not definite. In the circumstances learned trial Court erred in granting a decree of specific performance. However, in the interest of justice the amount of advance is directed to be paid with interest at the rate of 12% per annum from the date of its payment. ( 21 ) THE appeal is partly allowed and the impugned judgment and decree is set aside with a direction that the respondent No. 1 is entitled to payment of advance of Rs. 24,000/- with interest at the rate of 12% per annum from the date of its payment till its realization from the appellant. Appeal partly allowed. .