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2014 DIGILAW 784 (PNJ)

Sukhmander Singh v. Mandeep Singh

2014-05-05

RAMESHWAR SINGH MALIK

body2014
Rameshwar Singh Malik, J. C.M. No. 370-C of 2012 1. Applicant seeks exemption from filing certified copies of Annexures A-1 (colly) and Annexure A-2. Application is allowed, as prayed for. C.M. stands disposed of. RSA No. 528 of 1987 Present appeal, at the instance of defendants, is directed against the judgment of reversal, whereby first appeal of the plaintiffs was allowed by learned District Judge, Faridkot, decreeing their suit for specific performance. 2. Brief facts of the case, as recorded by learned District Judge in the impugned judgment, are that plaintiffs filed suit for specific performance of the agreement to sell dated 24.9.1979 relating to the land in dispute which was executed by Mika Singh and Jang Singh defendants No. 1 and 2 in their favour to sell that land on the conditions of the sale price etc., provided therein. The sale deed was to be executed by 12.6.1980. Notice was given by the plaintiffs to these defendants when they did not execute the sale deed and then a writing on the back of the agreement was executed on 23.6.1980 extending the period up to 20.7.1980 for the execution of the sale deed. Defendants did not execute the sale deed. The suit was filed by the plaintiffs for specific performance of the contract on 21.8.1980. They also got the interim temporary injunction on that very day restraining these defendants from alienating the land to some other person, but these defendants sold the land to defendants No. 3 to 8, vide sale deed Ex. D2 to D5 executed on 22.8.1980 and Ex. D3 and D4 on 25.8.1980. These defendants were later on added when the objection was taken by defendants No. 1 and 2 that they had sold the land to them. 3. The defendants took the plea that the agreement of sale in favour of defendants No. 3 to 8 had already been executed by defendants No. 1 and 2, on 24.11.1978, Ex. D 1 and that as such, the agreement executed in favour of the plaintiffs thereafter, can have no precedence over them. Objections were also taken that the plaintiffs are estopped to file the suit and that defendant No. 3 to 8 are bonafide purchasers for consideration. 4. On completion of the pleadings, following issues were framed by the learned trial court:-- "1. Whether defendants No. 1 and 2 entered into an agreement to sell dated 24.9.1979? Objections were also taken that the plaintiffs are estopped to file the suit and that defendant No. 3 to 8 are bonafide purchasers for consideration. 4. On completion of the pleadings, following issues were framed by the learned trial court:-- "1. Whether defendants No. 1 and 2 entered into an agreement to sell dated 24.9.1979? If so, on what terms and to what effect? OPP 2. Whether the plaintiffs have been ready and willing to perform their part of the contract? OPP 3. Whether the plaintiffs are entitled to recover a sum of ` 23,000/- by way of alternative relief? OPP 4. Whether defendants No. 3 to 8 are bonafide purchasers for consideration vide registered sale deed without notice? OPD 5. Whether the plaintiffs are estopped by their own act and conduct from filing this suit? OPD 6. Relief" 5. In order to substantiate their respective stands taken, both the parties led their oral as well as documentary evidence. After hearing learned counsel for the parties and going through the evidence brought on record, learned trial court came to the conclusion that the plaintiffs have failed to prove their case, but they were held entitled for the alternative relief of recovery of earnest money. Consequently, relief of specific performance of the contract was declined and the suit was partly decreed qua alternative relief of recovery of earnest money alongwith interest, vide judgment and decree dated 31.10.1984. Feeling aggrieved, plaintiffs filed their first appeal which came to be allowed by the learned District Judge, Faridkot, vide impugned judgment and decree dated 27.11.1986. Hence this second appeal at the hands of defendants. 6. Learned senior counsel for the appellants submits that plaintiffs-respondents were not ready and willing to perform their part of the contract. Findings recorded by the learned first appellate court in para 9 of the impugned judgment were contrary to the record. In his affidavit Ex. P2, Mandeep Singh-plaintiff was conveniently silent whether he was ready with money to pay the balance sale consideration. There was not even a passing reference in this regard. He further submits that similarly, Harbans Singh-plaintiff No. 2, while moving his application Ex. P4 before the Sub-Registrar on 21.7.1980, was also silent about his readiness and willingness with sufficient money, so as to pay the balance sale consideration. There was not even a passing reference in this regard. He further submits that similarly, Harbans Singh-plaintiff No. 2, while moving his application Ex. P4 before the Sub-Registrar on 21.7.1980, was also silent about his readiness and willingness with sufficient money, so as to pay the balance sale consideration. Thus, plaintiffs-respondents failed to comply with the mandatory requirement of law contained in Section 16(c) of the Specific Relief Act, 1963 ('the Act' for short). He next contended that suit was not even maintainable in the present form, it being a suit for possession, whereas plaintiffs-respondents pleaded in para 2 in their plaint that they were already in possession of the suit land. Pressing his application under Order 41 Rule 27 of the Code of Civil Procedure ('CPC' for short) bearing CM No. 371-C of 2012, learned senior counsel for the appellants submits that since during pendency of the instant appeal, suit land had already been sold by the defendants and the plaintiffs-respondents never objected to that, agreement to sell has been rendered completely incapable of specific performance. He submits that after selling the suit land, a residential colony has been constructed at the site. He refers to numerous photographs of the colony available in the paper book. He also submits that construction has been raised after due approval of the Director of Town Planning, Punjab Urban Development Authority. As many as 175 residential houses, having A class construction, were existing at the site wherein families are residing. He concluded by submitting that under the changed circumstances, present one was not a fit case for granting relief of specific performance. Finally, he prays for allowing the present appeal alongwith the application under Order 41 Rule 27 CPC, by setting aside the impugned judgment and decree passed by the learned first appellate court. 7. Per contra, learned counsel for the respondents-plaintiffs submits that agreement to sell was not in dispute. Learned trial court misdirected itself, while not appreciating the true facts of the case in correct perspective. The relief of specific performance was illegally denied. Learned District Judge rightly accepted the appeal of the plaintiffs, while granting them relief of specific performance for which they were entitled. Learned trial court misdirected itself, while not appreciating the true facts of the case in correct perspective. The relief of specific performance was illegally denied. Learned District Judge rightly accepted the appeal of the plaintiffs, while granting them relief of specific performance for which they were entitled. He further submits that since the findings on issue No. 2 "whether the plaintiffs have been ready and willing to perform their part of contract", were recorded by learned trial court in favour of the plaintiffs and the defendants did not file any cross appeal before the learned first appellate court, the same has attained finality. It was no more open to the appellants to challenge the concurrents findings on issue No. 2, at this belated stage. He would next contend that since defendants-appellants have no respect for law and have sold the suit land during pendency of the litigation, they were not entitled for any relief. Denial of the relief of specific performance to the plaintiffs would amount to upholding the patently illegal act of the defendants-appellants, who have intentionally undermine the authority of law. He concluded by submitting that principle of lis pendens would apply. There was no substantial question of law involved. Jurisdiction of this Court under Section 100 CPC was limited and there was hardly any scope for exercising appellate jurisdiction by this Court, in favour of the persons like the appellants. In support of his contentions, learned counsel for the respondents relies on four judgments of the Hon'ble Supreme Court in Mst. Sugani v. Rameshwar Das and Ann 2006(4) R.C.R. (Civil) 319 : 2006 (11) SCC 587 , Narayanan Rajendran Anr. v. Lekshmy Sarojini and Ors., 2009 (2) R.C.R. (Civil) 286 : 2009 (5) SCC 264 , Guruswamy Nadar v. P. Lakshmi Ammal (D) through L.Rs. and others, 2008 (3) R.C.R. (Civil) 173 : 2008 (5) SCC 796 and Jogendra Ram and another v. Phullan Mian (D) By L.Rs. and others, 2012 (112) AIC 111. Finally, he prays for dismissal of the appeal. 8. Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in view of the peculiar fact situation of the present case, instant appeal deserves to be allowed. 8. Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in view of the peculiar fact situation of the present case, instant appeal deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter. 9. Under the abovesaid peculiar facts and circumstances of the case, following substantial question of law arises for consideration of this Court:-- "Whether learned first appellate court fell in serious error of law, while completely misreading, misconstruing and misinterpreting the true facts of the case as well as evidence available on record and whether under the changed circumstances, agreement to sell had become incapable of specific performance?" 10. Present suit was filed on 21.8.1980 for possession by way of specific performance of agreement to sell dated 24.9.1979, for sale of land measuring 95 kanals 3 marals. Defendants No. 1 and 2 entered into an agreement to sell dated 24.9.1979 with the plaintiff for selling the suit land. Defendants No. 3 to 8, on the basis of an earlier agreement to sell dated 11.6.1978, purchased major part of the suit land, vide sale deeds Ex. D2 to Ex. D5. The land sold through these sale deeds was 63 kanals. Total suit land measuring 95 kanals 3 marlas was allegedly agreed to be sold for an amount of `18,000/- per acre, whereas as per sale deeds Ex. D2 to D5, land measuring 63 kanals was sold @ ` 20,000/- per killa. While admitting this appeal for regular hearing, vide order dated 25.5.1987, this Court stayed the impugned decree. 11. Keeping in view the peculiar facts of the case and evidence available on record, learned trial court came to the conclusion that plaintiffs were not entitled for the relief of specific performance and their suit was partly decreed only for the alternative relief of refund of earnest money alongwith interest. However, since learned first appellate court completely misread and misconstrued the true factual as well as legal aspect of the matter, impugned judgment cannot be sustained. Learned trial court was at an advantageous position to watch, examine and appreciate the demeanour of the witnesses, who appeared before it. However, since learned first appellate court completely misread and misconstrued the true factual as well as legal aspect of the matter, impugned judgment cannot be sustained. Learned trial court was at an advantageous position to watch, examine and appreciate the demeanour of the witnesses, who appeared before it. When the cogent findings recorded by the learned trial court were based primarily on oral evidence, learned first appellate court was under legal obligation to give due weight to such findings recorded by learned trial court and the same ought not to have been reversed, keeping in view of the fact situation of the present case. However, since learned first appellate court proceeded on a misconceived approach, while passing the impugned judgment and decree, the same cannot be sustained. 12. The view taken by this Court also finds support from the judgment of the Hon'ble Supreme Court in Jagdish Singh v. Madhuri Devi, 2008 AIR (SC) 2296. This view further finds support from the long catena of judgments of the Hon'ble Supreme Court including in Santosh Hazari v. Purshotam Tiwari (dead) By L.Rs. 2001(3) R.C.R. (Civil) 243 : 2001 AIR (SC) 965, which was again reiterated in Naryanan Rajendran's case (supra). 13. Coming to the application moved by the appellants under Order 41 Rule 27 CPC for leading additional evidence, documents sought to be placed on record as additional evidence, were coming from proper custody and authenticity thereof cannot be doubted. Respondents-plaintiffs have also not doubted the authenticity of the documents sought to be placed on record, while filing their reply to the application. Application is duly supported by an affidavit. After hearing learned counsel for the parties and going through the contents of application, this Court has come to the conclusion that instant application deserves to be allowed for the reasons stated therein. Application also deserves to be allowed for doing complete and substantial justice between the parties. Thus, application bearing CM. No. 371-Cof2012 under Order 41 Rule 27 read with Section 151 CPC is hereby allowed. 14. Numerous documents in the form of Annexures A-1 and A-2 (colly) would show that as many as 175 residential houses have been constructed at the site. In fact, it is a complete residential colony, which has been set up with due approval granted by the District Town Planner, Faridkot as well as by Punjab Urban Development Authority. 14. Numerous documents in the form of Annexures A-1 and A-2 (colly) would show that as many as 175 residential houses have been constructed at the site. In fact, it is a complete residential colony, which has been set up with due approval granted by the District Town Planner, Faridkot as well as by Punjab Urban Development Authority. The amount of ` 1,06,69,200/- was to be paid by promoter of residential colony named as Pink City at Ferozepur-Ludhiana Road, as per schedule of payment to the government authorities. Out of the said amount, on account of external development charges, an amount of ` 17,78,200/- were deposited by demand draft dated 4.3.2008. Another amount of ` 4,91,000/- and ` 8,824/- was deposited towards urban development fund. 15. All these three payments were made through bank draft dated 8.3.2010. It is not denied by the learned counsel for the respondents that above-said amount of ` 1,06,69,200/- has not been deposited towards external development charges, as per the schedule of payment. In view of these changed circumstances, this Court is of the considered view that present one is a fit case for exercising the discretion in favour of the appellants, so as to do complete and substantial justice between the parties. It is so said, because the present case clearly falls within the ambit and scope of Section 20 (2) of the Act, which has been interpreted by the Hon'ble Supreme Court in long catena of judgments. Not only undue hardship would be caused to the defendants-appellants, but it is also clearly inequitable to grant the relief of specific performance in favour of the plaintiffs-respondents. 16. The relevant observations made in para 7 and 15 of the judgment by the Hon'ble Supreme Court in A.C. Arulappan v. Smt. Ahalya Naik, 2001(4) R.C.R. (Civil) 109 : 2001 (6) SCC 600 , which aptly apply to the facts of the present case, read as under:-- "The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but his discretion shall not be exercised in an arbitrary or unreasonable manner. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but his discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the Court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the court would desist from granting a decree to the plaintiff. XXXX Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the Court. The trial court, which had the added advantage of recording these evidence and seeing the demeanour of the witnesses considered the relevant facts and reached a conclusion. The appellate court should not have reversed the decision disregarding these facts and, in our view, the appellate Court seriously flawed in its decision. Therefore, we hold that the respondent is not entitled to a decree of specific performance of the contract." 17. Similar view was taken by the Hon'ble Supreme Court in the cases of Sardar Singh v. Krishna Devi, 1994(2) R.R.R. 391 : 1995 AIR (SC) 491; Nirmala Anand v. Advent Corporation (P) Ltd., and another, 2003 (2) RCR (Civil) 765; Sargunam (dead) by L.R. v. Chidabmbaram, 2004(4) R.C.R. (Civil) 721 : 2005 (1) SCC 162; E.G. Arumugham and others v. K.A. Chinnapan and others, 2005(2) R.C.R. (Civil) 109 : 2005 (2) SCC 793 ; Vimaleshwar Nagappa Shet v. Noor Ahmed Sheriff, 2011 (12) SCC 658 ; Laxman Tatyaba Kankate and another v. Smt. Taramati Harishchandra Dhatrak, 2010(3) R.C.R. (Civil) 847 : 2010 AIR (SC) 3025and Satya Jain (D) Thr. L.Rs. and others v. Anis Ahmed Rushdie (D) Thr. L.Rs. and others, 2013(1) R.C.R. (Civil) 369 : 2012(6) Recent Apex Judgments (R.A.J.) 377 : 2013 (8) SCC 131 . 18. L.Rs. and others v. Anis Ahmed Rushdie (D) Thr. L.Rs. and others, 2013(1) R.C.R. (Civil) 369 : 2012(6) Recent Apex Judgments (R.A.J.) 377 : 2013 (8) SCC 131 . 18. Reverting back to the facts and circumstances of the present case and respectfully following the law laid down by the Hon'ble Supreme Court in the judgments referred to hereinabove, this Court feels no hesitation to conclude that since the agreement to sell has become completely incapable of specific performance, it would not be inequitable to grant relief of specific performance. About 175 persons have purchased plots and constructed their residential houses at the site, who were not even parties before the Court. About 150 families are residing at the site in question. Plaintiffs-respondents never objected in this regard, at any relevant point of time. 19. Under the abovesaid circumstances, present one has been found to be a fit case by this Court to exercise its discretion, for denying the relief of specific performance, so as to do complete and substantial justice. Thus, impugned judgment and decree passed by the learned District Judge cannot be sustained, for this reason also. 20. So far as judgments relied upon by the learned counsel for the respondents-plaintiffs are concerned, there is no dispute about the law laid down therein. However, the same are of no help to the respondents, being distinguishable on facts. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judge made law thereto. Further, sometimes difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another v. State of Tamil Nadu and others, 2002(2) R.C.R. (Civil) 373 : 2002 (3) SCC 533 . 21. In view of what has been discussed hereinabove, answer to the substantial question of law posed hereinabove, is and has to be in the affirmative and the same is answered accordingly. It is held that learned District judge fell in serious error of law, while completely misreading and misinterpreting the true facts of the case as well as evidence available on record, to grant the relief of specific performance. 22. Plaintiffs are also responsible in this regard. It is held that learned District judge fell in serious error of law, while completely misreading and misinterpreting the true facts of the case as well as evidence available on record, to grant the relief of specific performance. 22. Plaintiffs are also responsible in this regard. During pendency of this appeal, they never informed this Court about the sale deeds and construction of about 175 residential houses at the site. They never sought any restraint order against the defendants in this regard, nor they complained about violation of any order passed by this Court, at the hands of the appellants. 23. However, this Court would hasten to add that defendants cannot be granted any undue benefit and the plaintiffs-respondents deserve to be duly compensated. Thus, striking a balance between the parties, it is thought appropriate that interest of justice would be adequately met if the appellants are directed to pay an amount of ` 20 lacs to the plaintiffs-respondents, in addition to decree passed by the learned trial court for refund of earnest money alongwith interest. 24. No other argument was raised. 25. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that since the impugned judgment and decree have been found suffering from patent illegality and perversity, the same are hereby ordered to be set aside. 26. Consequently, judgment of the learned trial court is ordered to be restored. As noticed hereinabove, in addition to the decree passed by the learned trial court for alternative relief of refund of earnest money with interest, appellants are directed to pay an amount of ` 20 lacs to the plaintiffs-respondents within a period of three months from the date of receipt of certified copy of this order, failing which, plaintiffs-respondents shall be entitled to recover the amount alongwith interest @ 12% per annum. Resultantly, with the observations made above and directions issued, the instant appeal stands allowed.