Bombay High Court
Santosh Nathu Vaidya And Anor vs Namdeo Adkuji Budde And 4 Ors on 4 April, 2016
Bench: A.B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.60/2007
1. Santosh s/o Nathu Vaidya,
aged about 65 years, Occ. Cultivator,
r/o Narsala, Tq. Dist. Nagpur.
2. Sureseh s/o Santosh Khante,
aged about 40 years, occ. Business,
r/o Juna Subhedar Layout, Nagpur. .....APPELLANTS
ig ...V E R S U S...
1. Namdeo s/o Adkuji Budde,
aged about 50 years, Occ. Cultivator,
r/o Tajbag Nagar, nagpur.
2. Umraoji s/o Keshaoraoji Dhole
(Deleted as per Court's Order
dated 27.02.2007)
3. Eknathiji s/o Champatrao Darode,
aged 40 years, Occ. Service,
r/o Omkar Nagar, Nagpur.
4. Hasan Ali s/o Khurshidali,
aged about 45 years, Occ. Cultivator,
r/o Tajbag, Nagpur.
5. Kailas s/o Bhakaru Lute,
aged about 40 years, Occ. Cultivator,
r/o Tajbag, Umred Road, Nagpur. ...RESPONDENTS
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Mr. J. M. Gandhi, Advocate for appellants.
Mr. S. R. Narnaware, Advocate for respondent nos. 1, 3 and 4.
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CORAM:- A. B. CHAUDHARI, J.
Date of Reserving the Judgment : 01.04.2016
Date of Pronouncing the Judgment : 04.04.2016
J U D G M E N T
1. Being aggrieved by judgment and decree dated
02.01.2007 in Regular Civil Appeal No.300/2001 passed by Ad
hoc District Judge 10, Nagpur by which the judgment and decree
dated 13.02.2001 in Regular Civil Suit No.214/1989 dismissing
the suit filed by respondents-plaintiffs was set aside and the decree
for specific performance of contract etc. was made, the present
second appeal was filed by the unsuccessful defendants.
FACTS:
2. the respondents-plaintiffs, through their power of
attorney holder by name Dhairyasheel, instituted Special Civil Suit
No.214/1989 for specific performance of contract against the
defendant no.1-Santosh Vaidya. Defendant no.2-Kailash Lute was
in fact the proposed vendee in the agreement who was joined as
defendant because of his absence. The case of respondents-
plaintiffs was that defendant no.1-Santosh Vaidya was the owner
of field survey No.32, 1.57 HR at mouza Hudkeshwar and he
entered into an agreement on 07.04.1986 in favour of the plaintiff
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and defendant no.2 for the sale thereof at the rate of Rs.40,500/-
per Acre and all the proposed vendees paid an amount of
Rs.10,000/- as earnest amount to him. It was also agreed that
defendant no.1 will execute the sale deed within 1 ½ years from
the date of the agreement and remaining consideration would be
paid accordingly at the time of registration of the sale deed. It was
agreed that in case there was any legal impediment in getting the
sale deed registered, further time of 1 ½ years would be extended.
It was then stated in the plaint that the defendant no.2 thereafter
paid additional amount of Rs.10,000/- to defendant no.1-Vendor
on the tenth day from the date of agreement. Thereafter, they
were insisting on the defendant no.1 to execute and register the
sale deed by completing all the legal formalities namely; to obtain
necessary no objections from the Urban Land Ceiling authorities,
town planning and other competent authorities which are required
to be placed before the Registrar for registration. But the
defendant no.1 did not respond and for want of no objection from
those authorities, it was not possible to register the sale deed. The
plaintiff and defendant no.2 were throughout ready and willing to
get the sale deed registered and pay the remaining consideration
to defendant no.1. But it could not be done due to lapse on the
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part of defendant no.1 and he was careless and negligent in
getting the no objections from the Government authorities for
preparation of necessary documents. The defendant no.1 having
not complied with the obtaining of permissions and no objections
from the authorities, was not entitled to cancel the agreement nor
could do so since the agreement itself provided for extension by
another 1 ½ year. The plaintiffs and defendant no.2 again
informed defendant no.1 that they were ready and willing to get
the sale deed registered and then defendant no.1 also realised his
mistake of not obtaining the necessary documents of no objections
etc and agreed to make compliance. However, defendant no.1 still
did not produce no objections from the competent authority or
clearance from Urban Land Ceiling authorities, town planning
authorities and, therefore, the registered notice dated 03.03.1989
was issued to him to attend Sub Registrar's office on 13.03.1989
but he did not turn up and, therefore, had no alternative but to file
suit for specific performance of contract thereafter. Accordingly,
suit was filed for decree of specific performance of contract and in
the alternative for refund of money on 27.03.1989. The suit was
dismissed for want of prosecution on 21.01.1994 and was again
restored by detailed order on 19.11.1997. thereafter, it was set
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down for trial. The power of attorney holder of respondent-
plaintiff PW1-Dhairyasheel (PW1) was examined on their behalf
while the appellants-defendants examined PW1-Santosh and
defendant no.3 PW2-Suresh the subsequent purchaser who
purchased the suit property on 14.09.1989 and 31.01.1994 i.e.
after the suit was lodged in the Court. The trial Judge thereafter
dismissed the suit. The respondents filed appeal before the
District Judge who, as stated earlier, allowed appeal and decreed
the suit. Hence, this appeal.
SUBMISSIONS:
3. Mr. Gandhi, learned counsel for the appellants assailed
the impugned judgment and order passed by the lower appellate
Court and submitted that the suit as filed by plaintiffs through
power of attorney holder holder was not maintainable because
initially with the suit photocopy of the power of attorney was filed
and thereafter attested power of attorney Exh.-99 was filed but the
photocopy was not attested though original Exh.-99 was attested
at later point of time. The power of attorney who did not have
any personal knowledge about Exh.-39-agreement, was examined
as the only witness for the plaintiffs and, therefore, his evidence
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was totally inadmissible and of no assistance to the plaintiffs as a
result the same was liable to be ignored in entirety. Though the
power of attorney exhibited, its contents were not proved and by
mere exhibition, the document cannot be read in evidence.
Defendant no.2-Kailash Lute was also the proposed vendee in the
agreement Exh.-39, but he was added as defendant no.2. He did
not turn up in the court and, therefore, it could easily be inferred
that all the proposed vendees were not ready and willing to
perform their part of contract. The evidence of power of attorney
holder would be hearsay evidence, he having no knowledge about
the transaction.
4. The agreement of sale Exh.-39 was not the original
document of agreement of sale and photocopy was exhibited upon
which the objection was taken but it was overruled by the trial
Judge, which is wrong. In the absence of original document of
agreement, the Court could not have placed reliance thereon. The
agreement was required to be registered as it was stated therein
that the possession was delivered on the date of agreement and in
the absence of document being registered or impounded, the
agreement was not legal, valid and such suit based thereon was
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liable to be dismissed.
5. The appellant-defendant no.1 had, by notice dated
14.10.1989, cancelled the agreement and in the absence of any
challenge to the cancellation, the suit was not maintainable and
was liable to be dismissed. The attempt of the plaintiffs to show
that they were ready and willing to perform their part of contract
through documents Exh.95, 95A and 96 was wholly misconceived
as from the conduct of the power of attorney holder it could be
easily inferred that the plaintiffs were not ready and willing nor
had they proved that they were ready and willing to perform their
part of contract. The aforesaid letters were forged and fabricated
in order to show that they were ready and willing to perform their
part of contract and the appellate Court should have rejected those
letters. The certificates Under Postal Certificate are also tampered.
Looking at Exh.-97 and 98, there was reason to believe that the
conduct of the plaintiffs was not clean and it is well settled that
when the conduct of the plaintiffs is not clean, the Court should
not exercise the discretion of granting specific performance of
contract.
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6. The suit was filed after 2 ½ years. Therefore, the
discretion to decree the suit could not have been exercised in
favour of the plaintiffs. The appellant-defendant no.1 had
executed the sale deed in respect of the suit property in entirety by
two sale deeds dated 14.09.1989 and 31.01.1994 in favour of
defendant no.3-Suresh, who had thereafter, sold the plots to the
others and, therefore, for specific performance of contract on the
basis of agreement in question the decree could not have been
passed additionally because the suit was dismissed and was not in
existence from 27.01.1994 till 19.11.1997. The legal effect should
have been considered by the trial Court in respect of the
subsequent sale deeds in favour of defendant no.3-Suresh and
consequently ought to have declined to grant the specific
performance.
7. Inviting my attention to Civil Application No.271/2016
under Order XLI Rule 27 of the Code of Civil Procedure along with
the documents therein, he contended that this additional evidence
should be permitted to be taken on record as the sale deeds of the
plots sold to various persons were not filed on record through
inadvertence but the interest of justice should not suffer and,
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therefore, these sale deeds should be taken on record which would
be necessary for adjudication. The learned counsel for the
appellants cited following judgments and prayed for reversal of
the judgment of the lower appellate Court.
1. Man Kaur.vs.Hartar singh; 2011 (1) SCC (SRJ) 197.
2. S. Kesari.vs.Anjum Jehan; 2013 (3) ALL M.R. (SC) 916.
3. A. C. Narayan..vs..State of Maharashtra & Anr.;
2013 ALL MR (Cri) 4048 (SC).
4. Janki Vashdeo Bhojwani and anr.vs.Indusind Bank Ltd. & ors;
AIR 2005 SC 439.
5. Church of Christ..vs..Ponniamman Educational Trust;
(2012) 8 SCC 706.
6. Varsha Maheshwari..vs..Bhushan; 2011 (3) Mh. L.J. 666.
7. Gajanan..vs..Sakhubai; 2012 (4) Mh.L.J.470.
8. S.R.Ahmad ..vs.. Alima Begum; 2009 (6) ALL. MR 86
9. Omprakash..vs..Laxminarayan; 2013 (6) ALL MR 941
10. Bhupendra..vs..Leelabai; 2010 (5) Mh.L.J. 390.
11. Arjun ..vs.. Rama; 2014 (2) Mh. L. J. 390.
12. Janak Dulari Devi ..vs.. Kapil Deo; 2011 (6) SCC 555.
13. A. C. Arulappan..vs..Ahalya Naik; AIR 2001 SCC 2783.
14. Ramkumar..vs..Thawar Das; (1999) 7 SCC 303.
15. Ajaib Singh..vs..Tulsidevi; (2000) 6 SCC 566.
16. Lourdu Mari ..vs..Loui's; AIR 1996 SC 2814.
17. Union of India ..vs..Ibrahim Uddin; (2002) 8 SCC 148.
18. Citadel..vs..Ramaniyam; (2011) 9 SCC 147.
19. I.S.Sikander..vs.. Ksubramani; (2013) 15 SCC 27.
20. K. S.Vidyanadam ..vs..Vairavan; 1997 (2) Mh.L.J.642.
10 sa60.07.odt
21. Tejram..vs..Patirambhau; AIR 1997 SC 2702.
22. Life Insurance Corporation..vs.. Rampal; (2010) 4 SCC 491.
23. Tukaram..vs..Manikrao; (2010) 4 SCC 329.
8. Per contra, Mr. Narnaware, learned counsel for the
respondents-plaintiffs, supported the judgment of the lower
appellate Court and submitted that the lower appellate Court
rightly granted the decree for specific performance of contract and
at any rate, admittedly, the agreement in favour of the
respondents made by defendant no.1 was never in dispute. The
agreement was exhibited by the trial Judge on the basis of
admission in the written statement as defendant no.1 categorically
admitted the agreement in question. According to him, it is well
settled legal position that admission is the best piece of evidence
and admission in the written statement can be acted upon. Insofar
as the objections about the power of attorney and his evidence is
concerned, the learned counsel argued that all the points are
raised by the learned counsel for the appellant before this Court
for the first time and were never put to the power of attorney
holder in the cross-examination nor pleaded in the written
statement and, therefore, they cannot be considered. Inviting my
attention to the proviso to Rule 14 of Order VI of the Code of Civil
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Procedure, the learned Counsel for the respondent contended that
the power of attorney holder is the person authorised by the
plaintiffs, about which there is no dispute and none of the
plaintiffs or defendant no.2 have at all disputed the authority
given by them to the power of attorney holder and, therefore, it
was not legal and proper for the appellants to dispute about giving
of the authority to the person authorised namely power of
attorney holder PW1-Dhairyasheel. Learned counsel for the
respondent then contended that, it is admitted position that the
agreement with the respondents is prior in point of time of later
sale deeds in favour of defendant no.3. After the institution of the
suit, the sale deeds were executed in favour of defendant no.3-
Suresh. In reply to the application under Order XLI Rule 27, he
contended that he has filed the reply to the application and
obviously all those transactions shown in the sale deeds filed along
with the application are hit by the doctrine of lis pendens. Finally,
learned counsel for the respondents prayed for dismissal of the
appeal as according to him, no question of law muchless
substantial question of law arises in the present appeal.
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CONSIDERATION:
9. I have heard learned counsel for the rival parties at
length. I have also perused the entire record, documentary as well
as oral. I have perused the reasons recorded by the Courts below.
This Court had, at the time of admission on 27.02.2007, framed
three substantial questions of law, which are as under with my
answers:
(1) whether the Power of Attorney holder for the
proposed vendees could validly depose about the
existence of readiness and willingness on the part of the
plaintiff/proposed vendees to perform their part of the
contract when this fact could have been within the
special knowledge of the plaintiffs themselves? ...Yes.
(2) Whether the appellate Court was justified in
reversing the judgment of the trial Court and granting a
decree for specific performance in favour of the plaintiffs
when one of the proposed vendees who had executed the
agreement of sale was not joined as a party to the
appeal and the aforesaid fact clearly reflected that he
was not ready and willing to get the sale deed executed
in his favour? ...Yes.
(3) Whether the agreement of sale could be
specifically enforced in a case where the vendees were
more than one and some of them were not ready and
willing to get the agreement specifically enforced?
...Yes.
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The learned trial Judge had framed the following issues
in the suit numbering 10.
1. Does the plaintiff prove that the defendant no.1 put
plaintiffs and defendant no.2 in actual possession of suit
property? ...No.
2. Do the plaintiffs prove that the plaintiffs and
defendant no.2 were and are ready and willing to
perform the part of contract as alleged? ...No.
3.
Do they further prove that defendant No.1 has
committed breach of contract? ...No.
4. Do they further prove that they are entitled to
specific performance of contract as alleged? ...No.
5. Do the plaintiffs alternatively prove that they are
entitled for refund of earnest money and charges tot eh
extent of Rs.1,20,000/- as alleged? ...No.
6. Does the defendant no.1 and 2 prove that the time
is essence of contract? ...Yes.
7. Is suit bad for misjoinder of the parties as alleged?
...Yes.
8. Is suit within limitation? ...-
9. Does defendant no.3 prove that he is entitled to the
compensatory cost of rs.5,000/- as alleged? ...No.
10. what order & decree? ...As per final order.
The learned lower appellate Court had framed the
following points for determination numbering 9.
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1. Whether the time was essence of contract?
...No.
2. Whether the appellants proved that they and
respondent no.2 were put in physical possession of the
suit field? ...Yes.
3. Whether they were ready and willing to perform
their part of contract? ...Yes.
4. Whether the respondent no.1 committed breach of
contract?
ig ...Yes.
5. Whether the appellants are entitled to Specific
performance of Contract? ...Yes.
6. In the alternative whether they are entitled to
refund of earnest amount and damages?
...Does not survive.
7. Whether the suit was bad for misjoinder of parties?
...No.
8. Whether the judgment of the trial Court needs any
interference? ...Yes.
9. Order? ...As per final order.
10. Taking up first the Civil Application No.277/2016
under Order XLI Rule 27 for additional evidence for decision, I
find upon reading of the said application in entirety so also the
reply that, the appellants want to bring on record the subsequent
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sale deeds in respect of the alleged plots sold by appellant no.2-
defendant no.3 during the period from April-1994 to January-
1995 and 7/12 extract in the name of appellnat no.2 so also order
of conversion dated 11.08.2015 passed by Sub Divisional Officer
from agricultural to non agriculture purpose. In my opinion, all
these documents of sale deeds executed by appellant no.2 are
obviously during the pendency of the suit before the trial Judge
and after filing of the suit and, therefore, alike the appellant no.2-
defendant no.3, who purchased the suit property after filing of the
suit these additional documents showing sales of plots by sale
deeds are clearly governed by the principles of lis pendens. In
other words, all the sale deeds placed on record by appellant no.2
as additional evidence are in the nature of extension of the sale
deeds obtained by appellant no.2, which is also covered by the
principles of lis pendens. All such documents of sale deeds
covered by the lis pendens cannot become the additional evidence
for the purpose of adjudicating the real dispute between the
parties in relation to the suit. Needless to repeat that the
principles of lis pendens would govern the issue. Therefore, the
application for additional evidence cannot be entertained. That
apart, all these documents are registered sale deeds, which were
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very much available that too to the full knowledge of the appellant
no.2 since he himself was the executent of the sale deeds and
particularly when his evidence was recorded on 24.01.2001, he
could have easily produced all the registered sale deeds. At any
rate, the said additional evidence is of no consequence and does
not help any party to the dispute in the light of law of the lis
pendens. Civil Application No.277/2016 is, therefore, rejected.
Answer to Question No.1:
11. Now coming to the controversy in the suit and the
submissions made before me, the argument made by the learned
counsel for the appellant on the point of power of attorney holder
and his evidence, it will have be necessary to have a look at
Order VI Rule 14 of the Code of Civil Procedure which reads thus:
"Order VI: Pleadings generally:
14. Pleading to be signed.- Every pleading shall be
signed by the party and his pleader (if any):
Provided that where a party pleading is, by reason
of absence or for other good cause, unable to sign the
pleading, it may be signed by any person duly
authorized by him to sign the same or to sue or defend
on his behalf."
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12. The aforesaid proviso to Rule 14 categorically shows
that a person authorised is entitled to file and prosecute the suit
till its disposal. In the instant case, it is not in dispute that the
plaintiffs had authorised Dhairyasheel (PW1) to act as their power
of attorney holder for signing of various documents, prosecuting
and contesting the litigations etc. It is not at all disputed by any of
the plaintiffs or defendant no.2. None of he plaintiffs or defendant
no.2 have stated that they have not authorised Dhairyasheel
(PW1) the power of attorney holder. Insofar as the aspect of
attestation at a later point of time after execution of the power of
attorney is concerned, I do not think any significance can be given
to it since none of the persons giving authority have disputed the
authority of the power of attorney holder either orally or in
writing to plead and prosecute their lis. In the light of the above
provision, therefore, it is not possible to accept the submissions
about the incompetence of power of attorney. The counsel for the
appellant then argued that the power of attorney holder had no
personal knowledge about the execution of agreement and,
therefore, his evidence is worthless and should not have been
relied upon by the appellate Judge. In this context, I have perused
the pleadings as well as entire evidence of Dhairyasheel (PW1)
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and the cross-examination. In the examination-in-chief, the power
of attorney holder deposed about the entire transaction in
question, readiness and willingness, details about the agreement,
payments made and so on and so forth, which clearly shows his
personal knowledge about the transaction in question and the
filing of the litigation i.e. the suit in question. If according to the
appellants, he had no personal knowledge about the transaction,
there ought to have been appropriate pleadings in the written
statement and appropriate cross-examination to him to bring out
from his mouth that he did not have any personal knowledge
about the transaction. However, it is significant to note that not
only that there is no cross-examination on that point but there is
no even a single suggestion to him that he does not know anything
about the transaction and that he was not a witness to depose on
behalf of the plaintiffs or the proposed vendees. In the absence of
appropriate pleadings and the cross-examination, it would be
difficult to accept such a submission. Secondly, the submissions
that his evidence was hearsay evidence, again will have to be
rejected as he deposed about the whole transaction. There is
further submission that the contents of the power of attorney were
not proved by the power of attorney holder and the answer
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obviously would be that Dhairyasheel (PW1) deposed about
details or the power of attorney in his favour which was also
exhibited and there is no cross-examination that he was not
authorised by the plaintiffs and defendant no.2 nor the plaintiffs
and defendant no.2 disputed his authority to act on their behalf.
As to his evidence before the Court, in this context the learned
counsel for the appellants vehemently relied on some judgments
about the evidence of power of attorney holder, numbering 1 to 7
is in the list of reliance. I have carefully gone through all these
decisions. The first decision was rendered in the case of Janki
Bhojwani (supra). In that case, the apex Court specifically found
on facts that the power of attorney holder did not have personal
knowledge about the matters of the appellants and, therefore, he
could not depose about his personal knowledge of the matter of
the appellants and therefore he could neither depose on his
personal knowledge nor could be cross-examined on those facts
which were to the personal knowledge of the principal. As stated
earlier, there is no even remote suggestion or pleading anywhere
or admission in the evidence about want of personal knowledge.
On the contrary, Dhairyasheel (PW1) deposed on his personal
knowledge about each and every details of the transaction which
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was not challenged. Hence, such matters cannot be resolved by
merely raising questions but there has to be foundation in
pleadings as well as evidence which is absent in the present case.
The existence of readiness and willingness on the part of the
plaintiffs or the proposed vendees to perform their part of contract
has, in fact, been deposed by Dhairyasheel (PW1) the power of
attorney holder of the plaintiffs. It is significant to note that upon
careful reading of the examination-in-chief and the cross-
examination of this witness Dhairyasheel (PW1) for the plaintiffs,
it is seen that he categorically deposed in paragraph 4 of his
evidence as under:
"4. ...The plaintiffs repeatedly requested the defendant
no.1 to execute the Sale Deed but as the defendant no.1
failed to obtain the necessary documents from the
different authority, the Sale deed could not be executed.
On 14.10.1987 the defendant no.1 issued the notice to
plaintiffs and defendant no.2. By this notice the
defendant no.1 alleged that the suit agreement was
cancelled by him. The plaintiffs had duly replied to this
notice. The office copy of the reply notice is placed on
record vide Exhibit-94. The postal acknowledgment is at
Exhibit-95. By this reply notice, the vendees had called
upon to defendant no.1 to attend Sub Registrar's office
on 13.3.1989 for execution of the Sale Deed. We waited
for him up to 4.00 p.m. However, the defendant no.1
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did not attend the Registrar's office on that day. Hence,
the vendees were constrained to file he present suit. The
defendant no.1 was many times requested both orally
and in writing to execute the Sale Deed. The vendees
were all the while and are still ready and willing to
perform their part of contract and to get the Sale Deed
executed. In the present suit the plaintiffs have claimed
the decree for specific Performance of contract."
13.
The cross-examination of this witness if carefully seen,
shows that this evidence in paragraph 4 has not even been
touched in the cross-examination muchless shattered. Not only
that there is no even suggestion to this witness that the plaintiffs
were not ready and willing or that the plaintiff and defendant no.2
were not ready and willing to perform their part of contract.
Further, perusal of the evidence of two witnesses of the defendant
namely; appellant nos. 1 and 2, does not even show a semblance
of evidence that there was no readiness and willingness on the
part of the plaintiffs and defendant no.2. It clearly appears from
the entire record that power of attorney holder had full personal
knowledge about the entire transaction and that plaintiffs and
defendant no.2 were ready and willing to perform their part of
contract. In the wake of the above factual position in this case, all
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the judgments on this point cited by learned counsel for the
appellant from Serial No.1 to 4, which are on their facts are, not
applicable in the present case.
The question no.1, therefore, will have to be answered
in the affirmative that the power of attorney holder could validly
depose about the readiness and willingness.
As to Question No.2:
14. Vide order dated 27.02.2007 on Civil Application No.
1253/2007, the appellants themselves at their risk deleted
respondent no.2 (one of the vendees) from the array of parties to
this appeal. I find that in the absence of respondent no.2 (one of
the vendees), the question cannot be raised by the appellants.
Even otherwise, grant of decree for specific performance of
contract in favour of five vendees together would not and cannot
be affected, if one of the proposed vendees is not a party to the
appeal before the District Judge. The rights of all the plaintiffs,
but for one, to ask for specific performance of contract merely
because one of the proposed vendees is not a party, cannot be
denied. It is not in dispute that all the vendees were party to the
suit. The other vendees would be entitled to execute the decree in
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their favour. That apart, the learned counsel for the appellants did
not raise any arguments on question no.2 but since the question
was framed, the same is being answered by me.
In view of above, the question no.2 will have to be
answered in the affirmative.
As to Question No.3:
15. Learned counsel for the appellants then argued that
respondent had failed to prove their readiness and willingness and
that the documents Exh.-95, 95A etc. were forged and fabricated
documents. It was also contended that the document of
agreement dated 07.04.1986 Exh.-39 was not the original
document brought on record. In this connection, it would be
appropriate to quote following portion from the evidence of
Dhairyasheel (PW1) :
"The deft.No.1 had agreed to obtain all necessary no
objection certificates and permission. The sale deed was
to be executed within 1 ½ years after procuring all the
documents. It was also agreed between the parties that
if any legal impediment was there in the execution of
sale deed, the period would be extended further by 1 ½
years. The xerox copy of the agreement of sale is placed
on record. (The learned counsel for the defts. Raised
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objection with regard to exhibiting the document and
making it admissible in evidence. The learned counsel
for the plffs. Drew my attention to the admission in
respect of execution of document appearing in para 2 of
the W.S. Exh.19. Thus in view of this admission
appearing in the W.S. the objection is overruled). The
xerox copy of agreement of sale is marked as Exh.93.
(As admitted)."
16.
It is clear from the above that the photocopy of the
agreement of sale was exhibited with the clear admission in the
written statement made by contesting defendant no.1. In view of
the above admission, I do not think that the document Exh.-39
could not be read in evidence as it is well settled legal position
that the admission is the best piece of evidence and can be acted
upon. The above order overruling the objection is legal, correct
and proper.
17. Insofar as readiness and willingness is concerned, I
have seen the pleadings in the plaint so also testimony of
Dhairyasheel (PW1). There are clear pleadings about readiness
and willingness by the proposed vendees to perform their part of
the contract so also the evidence which can be seen from
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paragraph (4) of his deposition and as earlier stated there is
absolutely no cross-examination on the readiness and willingness
of the plaintiffs. It is, therefore, wrong to say that the plaintiff had
not discharged their burden to prove readiness and willingness
since there is categorical pleading and evidence both. I have then
perused the documents Exh.-95, 95A, 96, 97 and 98. Perusal of
these documents, to my mind, takes one nowhere. The letter
under postal certificate addressed to the defendants even if
ignored, the case of the plaintiffs does not get anyway shattered
since independently the plaintiffs proved their readiness and
willingness by appropriate pleadings and evidence as held by me
above and it went unchallenged before the trial Judge. It is then
seen that defendant no.2-Kailash was added as party to the suit for
which reasons were given in paragraph 10 of the suit namely that
the defendant no.2 was not available at the time of filing of the
suit and, therefore, he could not be joined as plaintiff to the suit
but since he was necessary party to the suit, he was joined as
defendant no.2 and liberty was reserved to apply for transposition,
if necessary, in future. That apart, it is not the case of the
appellants that the plaintiffs were never ready and willing to
perform their part of his contract or that none of the plaintiffs had
26 sa60.07.odt
ready money to pay balance consideration for obtaining the same.
There is no cross-examination, not even suggestion the plaintiffs
did not have money to make payment of balance consideration or
that they were not ready and willing. These are the aspects which
are required to be pleaded and brought in the cross-examination
but unfortunately as stated earlier, there is absolutely no cross-
examination on this points and, therefore, it could not be said that
merely because one vendee was added as defendant, the
agreement of sale could not be enforced. It is not even the case of
the appellants that some of the proposed vendees were not ready
and willing to get the agreement specifically enforced for which
there ought to have been some pleading and evidence, which is
totally absent in the present case. Therefore, question no.3 will
have to be answered in the affirmative.
18. The learned counsel for the appellants then submitted
that the agreement was cancelled by Exh.-102 dated 14.01.1987
and the suit was, therefore, not maintainable. I have carefully
seen the memos of appeal before the lower appellate Court as well
as the Court. This ground has not been even remotely raised.
Counsel for the appellant has raised this ground for the first time
27 sa60.07.odt
that too during arguments. I think, the counsel cannot be allowed
to raise this question. He relied on the decision in the case of I. S.
Sikander. (supra) In this context, I have perused the entire
pleadings of the appellants and I find that in the written
statements, there is no objection raised that the suit was not
maintainable because of the alleged cancellation. I have carefully
gone through the issues farmed and I do not find that a single
issue about cancellation of agreement was framed in the suit by
the trial Judge. I have also carefully seen the points of
determination framed by the lower appellate Court and I find that
no such point for determination was at all farmed nor it was
argued nor was decided by the lower appellate Court. The
substantial questions of law framed by this Court also do not show
any such question. Be that as it may. Even otherwise, I find that
recitals in the agreement Exh.-39 clearly show that it was for
defendant no.1 to obtain all no objections for registration of the
sale deed from various authorities and admittedly he had not
obtained those even at the time of issuing Exh.-102. Admittedly
the agreement Exh.-39 itself provided that in the eventuality of not
obtaining document of no objections, the period would be
extended by another 1 ½ years. The suit was duly filed within the
28 sa60.07.odt
limitation of three years. Therefore, in the wake of clause for
extension of time by 1 ½ years in the agreement itself, the Court
is bound to ignore the cancellation under Exh.-102 being
ineffective and of no consequence. The judgment in the case of
I. S. Sikander is, therefore, not applicable in view of the facts of
the case and as per the discussion made above.
19. Learned counsel for the appellant then argued that the
suit was instituted after 2 ½ years and sales to defendatn no.3 and
in turn to various persons were already made and, therefore, the
discretionary relief of specific performance should not have been
granted. He cited decision on this point. However, I find that the
right of the plaintiff to obtain specific performance of contract
within the period of limitation cannot be defeated and at any rate
sale deeds obtained by appellant no.2 were obtained after
institution of the suit filed in the Court so also the sale deeds of
the plots executed by him even without obtaining conversion order
from the concerned Sub Divisional Officer as it was admittedly
obtained in the year 2015 for the first time. The appellant no.2
thus committed all sorts of illegalities. The principles of lis
pendens would, therefore, clearly take care of the situation. To
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deny the discretionary relief of specific performance of contract to
the plaintiffs though they had approached the court within the
prescribed time would work out injustice to the plaintiffs. The
appellant no.2, in fact, misconducted himself by purchasing the
suit property after filing of the suit and, thereafter, went on selling
spree. The submission is, therefore, unacceptable. The learned
counsel for the appellants contended that the plaintiffs claimed to
be in possession of the suit property and, therefore, the agreement
Exh.-39 was inadmissible in evidence for want of registration
thereof. Perusal of the record shows no such issue or point for
determination was at all framed nor such objection was raised.
That apart, there is a clear recital in Exh.-39 that after
measurement by Patwari, the possession of the suit field will be
given. Not only that, both the Courts have concurrently held that
the possession was never delivered to the plaintiffs but appellants
were in possession. Hence, no registration was necessary. The
submission, therefore, will have to be rejected.
19. In the result, I find no merit in the appeal. Hence, I
make the following order.
30 sa60.07.odt
ORDER
(i) Second Appeal No. 60/2007 is dismissed.
(ii) No order as to costs.
JUDGE
kahale
