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2023 DIGILAW 536 (HP)

Hitesh Thakur v. Reeta Tandon

2023-12-14

SUSHIL KUKREJA

body2023
JUDGMENT  : SUSHIL KUKREJA, J. The present regular second appeal has been preferred against the impugned judgment and decree dated 19.11.2022, passed by the learned Additional District JudgeIII, Kangra at Dharamshala, camp at Palampur, District Kangra, H.P. in Civil Appeal No.2-P/XIII/2021, titled Hitesh Thakur Versus Reeta Tandon & another, whereby the appeal filed by defendant No.2 (appellant herein) was dismissed and the judgment and decree dated 03.01.2018, passed by the learned Civil Judge (Senior Division), Palampur, District Kangra, H.P., in Civil Suit No.827/2013 was upheld. 2. Briefly stated the facts of the case are that the plaintiff (respondent No.1 herein) filed a suit for specific performance of contract dated 01.03.2011 and in the alternative for mandatory injunction directing defendant No.1 Sikru Ram (predecessor-in-interest of respondent No.2 herein) to refund double amount i.e. Rs.4,60,000/- of the amount i.e. Rs.2,00,000/- which he received at the time of agreement and Rs.30,000/- which he received thereafter alongwith interest @ 12% per annum and also for declaration declaring sale/conveyance deed executed by defendant No.1 in favour of defendant No.2 on 29.05.2014 bearing registration No.1253/2015 of the suit land and mutation No.509 attested on the basis of same, to be wrong, null and void by setting aside the sale deed. 3. The case of the plaintiff is that defendant No.1 alongwith other co-sharers was owner of land comprised in Khata No.35, Khatauni No.84 min, Khasra Nos.504, 507 & 508, situated in Mohal Jandera, Mauza Holta, Tehsil Palampur, District Kangra, HP as per Jamabandi for the year 2009-2010 and out of which, he agreed to sell 384/14959 shares i.e. land measuring 0-03-84 hectares to the plaintiff for a total sale consideration of Rs.7,00,000/-, qua which an agreement was executed on 01.03.2011. Out of the total sale consideration, defendant No.1 received a sum of Rs.2,00,000/- as advance money and as per the agreement, 13 meters of road front covering 384 square meters on back side of the road was agreed to be sold and defendant No.1 had also agreed to remove malwa of his old house before executing the sale deed, but neither he removed the same, nor executed the sale deed and further demanded a sum of Rs.30,000/- and extended time for executing the sale deed. The plaintiff further averred that he was ready and willing to perform her part of the agreement, but defendant No.1 refused to perform his part of the agreement, however, he had executed a sale deed of the suit land i.e. 384/14959 shares in favour of defendant No.2 in violation of the order dated 24.11.2022 passed by the learned trial Court in CMA No.56/11. 4. Defendant No.1 resisted the case of the plaintiff by filing written statement, wherein the preliminary objections of maintainability, estoppel, locus standi, etc. were taken. On merits, defendant No.1 admitted that he had agreed to sell 13 meters front on the road side, but denied that he had agreed to remove the material of his house before executing the sale deed. It was also averred that infact the defendant had served notice upon the plaintiff on 26.05.2011, but she had requested that she was unable to get sale deed executed and further requested to receive Rs.30,000/- on the same terms and conditions and also assured that she would get the sale deed executed on or before 31.07.2011 and it was the plaintiff who failed to perform her part of the contract willfully. Thereafter, defendant No.1 was proceeded against ex-parte. Defendant No.2 had appeared in person, but later on he was also proceeded against ex-parte. 5. The learned trial Court, after hearing learned counsel for the plaintiff and after perusing the evidence led by the plaintiff on the issues so framed as well as documents on record, partly decreed the suit by setting aside the sale deed executed by defendant No.1 in favour of defendant No.2 qua suit land i.e. 384/14959 shares being equal to 0-03- 84 hectares, comprised of Khata No35, Khatauni No.84 min, Khasra Nos.504, 507 and 508, situated in Mohal Jandera, Mauza Holta, Tehsil Palampur, District Kangra, HP, registered at Sr. No.1253/2014 on 29.05.2014 being hit by principles of lis pendens and declaring consequent mutation No.509 attested on 21.06.2014 on the basis of same, null and void and directing defendant No.1 to execute the sale deed qua the suit land after receiving Rs.4,70,000/- and removing malwa from the same. 6. No.1253/2014 on 29.05.2014 being hit by principles of lis pendens and declaring consequent mutation No.509 attested on 21.06.2014 on the basis of same, null and void and directing defendant No.1 to execute the sale deed qua the suit land after receiving Rs.4,70,000/- and removing malwa from the same. 6. Aggrieved against the aforesaid judgment and decree dated 03.01.2018 passed by the learned trial Court, defendant No.2 Hitesh Thakur preferred an appeal before the learned lower Appellate Court, however, the said appeal was dismissed by the learned Additional District Judge-III, Kangra at Dharamshala, camp at Palampur, District Kangra, H.P, vide judgment and decree dated 19.11.2022, thereby upholding the judgment and decree dated 03.01.2018 passed by the learned trial Court. Hence, the present regular second appeal by the appellant (defendant No.2 Hitesh Thakur). 7. I have heard the learned Senior Counsel for the appellant as well as learned Senior Counsel for respondent No.1 and also gone through the material available on record. 8. The perusal of the record reveals that during pendency of the suit before the learned trial Court, the plaintiff (respondent No.1 herein) had moved an application on 11.08.2014 under Order 1, Rule 10 of CPC for impleading the buyer of the suit land, i.e. Hitesh Thakur (appellant herein) as defendant in the civil suit and to allow her to amend the plaint qua pleadings and head note read with Section 151 of CPC. On 08.10.2014, notice was issued on the aforesaid application to the proposed defendant, who appeared in person on 18.04.2015 and time was taken for compromise, which was allowed and thereafter the case was fixed for 22.05.2015. However, on 22.05.2015, proposed defendant Hitesh Thakur did not appear before the trial Court, hence, he was proceeded against ex-parte. Thereafter, ex-parte evidence was led by the plaintiff. On 02.12.2017, it was observed by the learned trial Court that before deciding the case finally, application under Order 1, Rule 10, CPC was required to be disposed of. Relevant portion of order dated 02.12.2017 reads as under:- “While going through the case file for dictating judgment, it transpired that application moved under Order 1 Rule 12 CPC filed by applicant has not been decided. Before disposing of case finally, application under Order 1 Rule 10 CPC is required to be disposed of. Heard on application under Order 1 Rule 10 CPC. For order on 05.12.2017.” 9. Before disposing of case finally, application under Order 1 Rule 10 CPC is required to be disposed of. Heard on application under Order 1 Rule 10 CPC. For order on 05.12.2017.” 9. After hearing the arguments on the application filed under Order 1, Rule 10 of CPC, the application was fixed for orders on 05.12.2017. On 05.12.2017, the said application was allowed and Hitesh Thakur (appellant herein) was ordered to be impleaded as party in the suit and the plaintiff was permitted to amend her plaint accordingly. Relevant portion of order dated 05.12.2017 reads as under:- “Keeping in view the fact that Hitesh Thakur has acquired interest in the suit land, he has become proper party in the suit as out come of suit will have effect on his rights also. In view of this application is allowed and Hitesh Thakur son of Sh. Achhar Singh @ Achhar Kumar s/o Bhagirath Thakur r/o V & PO Sandhol, Tehsil Sandhol, District Mandi (HP) is ordered to be impleaded as party in the suit and applicant is permitted to amend his plaint accordingly. However, it is made clear that the observations made hereinabove are purely for disposal of this application and shall have no bearing on the merits of the case. The application stands disposed of. Be tagged. Put up for consideration on 14.12.2017.” 10. On 03.01.2018, an additional issue was framed by the learned trial Court, which reads as follows:- “1-A) Whether sale deed executed by defendant No.1 in favour of defendant No.2 on 29.05.2014 bearing registration No.1253/14 executed in office of Sub Registrar Palampur and mutation attested on the basis of same on 21.06.2014 bearing N.509 are liable to be set aside? … OPP 11. On the same day, i.e. 03.01.2018, the learned counsel for the plaintiff stated at bar that he did not want to lead any fresh evidence on the additional issue and thereafter the learned trial Court proceeded to pass the judgment and decree on the same very day and had partly decreed the suit of the plaintiff. 12. Perusal of the record shows that after allowing the application under Order 1, Rule 10 of CPC on 05.12.2017 whereby the appellant, i.e. defendant No.2 was impleaded and after framing an additional issue, no notice was given to the appellant to defend his case, which is against the principles of natural justice. 12. Perusal of the record shows that after allowing the application under Order 1, Rule 10 of CPC on 05.12.2017 whereby the appellant, i.e. defendant No.2 was impleaded and after framing an additional issue, no notice was given to the appellant to defend his case, which is against the principles of natural justice. In the opinion of this Court, it was incumbent upon the learned trial Court to have issued the notice to the appellant (defendant No.2) in order to give him opportunity to defend his case before deciding the case finally. The aforesaid facts were also brought to the notice of the learned lower Appellate Court, but instead of considering the same, the learned lower Appellate Court compounded the error made by the learned trial Court and dismissed the appeal. 13. Therefore, in such background of the matter, since no notice was issued to the present appellant after impleading him as defendant No.2 and no opportunity was given to him to file written statement and to lead his evidence, the judgments and decrees passed by both the Courts below cannot be sustained, being passed in violation of the principles of natural justice. Hence, the judgment and decree dated 03.01.2018 passed by the learned trial Court and affirmed by the learned lower Appellate Court, vide judgment and decree dated 19.11.2022, are set aside and the case is remanded back to the learned trial Court to decide afresh strictly in accordance with law, after giving reasonable opportunity of being heard to the parties, including the present appellant to file written statement as well as to lead his evidence. 14. The parties are directed to appear before the learned trial Court on 17.01.2024. Since the suit pertains to the year 2011, the learned trial Court is expected to dispose of the same as expeditiously as possible, preferably by 31.12.2024. Records be sent back forthwith. 15. The appeal stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.