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2010 DIGILAW 801 (PNJ)

Raj Kanwar v. Gharsi Ram Through L. Rs.

2010-02-04

L.N.MITTAL

body2010
Judgment L.N.Mittal, J. 1 Smt. Raj Kanwar-defendant has filed the instant second appeal. 2 Gharsi Ram-respondent (since deceased and represented by his legal representatives) filed suit for possession of suit land measuring 11 kanals by specific performance of agreement to sell dated 23.11.1998 executed by Lokman Singh (since deceased). The plaintiff alleged that Lokman Singh agreed to sell the suit land to the plaintiff vide agreement dated 23.11.998 @ Rs.1,20,000/- per acre. The plaintiff paid Rs.1,50,000/- as earnest money to Lokman Singh at the time of execution of agreement. Sale deed was to be executed up to 09.08.1999. However, Lokman Singh died prior to the said date and has been succeeded by his mother Smt. Raj Kanwar-defendant/appellant because Lokman Singh was unmarried. The plaintiff informed the defendant about the agreement and served notice dated 23.07.1999 for executing the sale deed on 09.08.1999 i.e. the date fixed in the agreement. However, the defendant did not turn up to execute the sale deed, whereas the plaintiff remained present in the office of Sub- Registrar for getting the sale deed executed and registered, along with requisite amount. 3 The defendant controverted the plaint allegations and denied the agreement. The defendant also denied receipt of any earnest money by Lokman Singh. Alleged agreement was pleaded to be without consideration. 4 Learned Additional Civil Judge (Senior Division), Fatehabad, vide judgment and decree dated 24.08.2005, decreed the suit of the plaintiff for alternative relief of recovery of Rs. 1,50,000/- (earnest money paid by the plaintiff to defendant Lokman Singh) with interest @ 6% per annum. However, the plaintiff preferred first appeal, which has been allowed by learned Additional District Judge, Fatehabad, vide impugned judgment and decree dated 28.05.2007, thereby decreeing the suit of the plaintiff for possession of the suit land by specific performance of the aforesaid agreement. Feeling aggrieved, the defendant has preferred the instant second appeal. 5 I have heard learned counsel for the parties and perused the case file. 6 Since judgment and decree of the trial court were not challenged by the defendant by filing first appeal, learned counsel for the defendant-appellant fairly states that in the instant second appeal, the defendant only challenges the judgment and decree of the lower appellate court regarding relief of specific performance of the agreement instead of the relief of recovery of Rs. 1,50,000/- granted to the plaintiff by the trial court. 1,50,000/- granted to the plaintiff by the trial court. 7 Learned counsel for the appellant vehemently contended that learned trial court assigned sufficient reasons for declining the relief of specific performance of the agreement and therefore, judgment and decree of the lower appellate court are liable to be set aside. Learned counsel for the appellant, in support of his contention, has relied on a judgment of Honble Supreme Court in the case of Kashi Ram v. Om Parkash Jawal, (1996-2)113 P.L.R. 337. 8 On the other hand, learned counsel for the respondent contended that the learned lower appellate court has rightly granted the relief of specific performance because execution of agreement and payment of earnest money stood proved and ordinarily relief of specific performance of the agreement is required to be granted. It is also contended that pursuant to decree of the lower appellate court, sale deed dated 08.12.2009 has already been executed and got registered by the Executing Court. 9 I have carefully considered the rival contentions. 10 No doubt, the relief of specific performance of agreement to sell is a discretionary relief and the discretion has to be exercised on the basis of sound judicial principles. However, unless there is a ground for declining the relief of specific performance of the agreement, ordinarily the Courts would exercise discretion in favour of ordering specific performance of the agreement. Equity, justice and good conscience demand that the agreements, which have been entered into between the parties, should be honoured. If relief of specific performance of the agreement is declined without any reason, the very purpose of entering into agreement would be frustrated. 11 In the instant case, the trial court declined the relief of specific performance of the agreement by simply observing that value of property has since increased and that the original owner of the suit land has already died. However, these are not sufficient grounds for declining the relief of specific performance of the agreement. Even in the case of Kashi Ram (supra), Honble Supreme Court observed that mere rise in price of property during pendency of the suit may not be the sole consideration for refusing to decree the suit for specific performance. However, these are not sufficient grounds for declining the relief of specific performance of the agreement. Even in the case of Kashi Ram (supra), Honble Supreme Court observed that mere rise in price of property during pendency of the suit may not be the sole consideration for refusing to decree the suit for specific performance. Here, it has to be noticed that the defendant in the written statement did not advance any plea for refusing the relief of specific performance of the agreement even if the agreement is proved to have been executed for valid consideration. The plaintiff had agreed to purchase the suit land, not for the benefit of vendor in the case of rise in price of the property. The plaintiff agreed to purchase the suit land to earn profit in case of increase in prices. The said benefit cannot be declined to the plaintiff and cannot be granted to the defendant without any valid reason. It would also not be out of place to notice here that at the time of agreement, the plaintiff paid more than 90% of the agreed sale price to the vendor Lokman Singh. The plaintiff has remained deprived of the said amount as well as fruits of possession of suit land for more than a decade since the date of the agreement. There is no earthly reason to decline the relief of specific performance of the agreement to the plaintiff-respondent. 12 Judgment in the case of Kashi Ram (supra) is not applicable to the facts of the instant case at all. In that case, the agreement was for total consideration of Rs.16,000/- only. The plaintiff alternatively claimed damages of Rs.12,000/- only in that case. However, the defendant-appellant offered to pay huge amount of Rs.10,00,000/- as compensation to the plaintiff, as against claim of Rs. 12,000/- only made by the plaintiff and as against total sale consideration of Rs. 16,000/- only. It was in view thereof that the Honble Supreme Court instead of affirming the decree of specific performance of the agreement, directed the defendant to pay Rs.10,00,000/- as damages to the plaintiff. The amount of damages was more than 60 times the sale consideration. In the instant case, obviously, the defendant is not coming out with any such matching offer. So, the aforesaid judgment is not applicable to the instant case. The amount of damages was more than 60 times the sale consideration. In the instant case, obviously, the defendant is not coming out with any such matching offer. So, the aforesaid judgment is not applicable to the instant case. In fact, that was the judgment in the peculiar facts and circumstances thereof and does not lay down any precedent that specific performance of the agreement should not be granted. 13 For the reasons recorded herein above, I find no illegality in the impugned judgment and decree of the lower appellate court. No question of law, much less substantial question of law, arises for determination in the instant second appeal, which is accordingly dismissed, being without any merit.