Kanshi Ram vs Om Parkash Jawal And Ors.
1995 Latest Caselaw 337 Del

JUDGMENT

Mr. M.K. Sharma, J.

1. This appeal by the defendant No. 1 has been preferred against the judgment and decree dated 24.2.1972 passed by Shri B.B. Gupta, Commercial Sub-Judge, Delhi, in Suit No. 111/1970 decreeing the suit filed by the plaintiff for specific performance of contract entered into between the plaintiff and the defendant No. 1.

2. The aforesaid suit being suit No. 111/ 1990 was filed by the plaintiff, (respondent No. 1 herein) stating inter alia that defendant No. 1 is the owner of the property detailed in para 1 of the plaint and that on 7.4.1969 the defendant No. 1 entered into an agreement to sell the suit property in dispute to the plaintiff for a sum of Rs.16,000/- out of which Rs.1,500/- were paid towards part payment of sale price and the balance price was to be paid before the Sub-Registrar at the time of registration of the sale deed. It was further stated that the defendant No. 1 was to execute the sale deed within 15 days on receipt of permission of the Land and Development Officer to sell the said property to the plaintiff and that on 13.10.1969 the L&DO granted the necessary permission to defendant No. 1 to sell the said property to the plaintiff and that the entire expenses for obtaining the permission were borne by the plaintiff. It was also stated in the plaint that under the terms of the permission the defendant No. 1 was to execute and get the documents registered within 90 days of the issue of the said permission and although the plaintiff had been ready and willing to perform his part of the agreement the defendant No. 1 refused to execute the sale deed. Accordingly, the present suit has been filed by the plaintiff praying for specific performance of the contract for sale and possession of the property by execution of the sale deed and in the alternative prays for Rs. 12,000/- as compensation for loss and inconvenience caused to him together with the refund of the advance money paid to the defendant No. 1.

3. The suit was contested by the defendants by filing their written statement. It was stated in the written statement that the defendant No. 1 did not purchase the stamp paper and he is 83 not entitled to decree for specific performance.

4. The learned Trial Court recorded the statement of defendant No. 1 before framing of issues and on the basis of the pleadings of the parties and the statements made by defendant No. 1, 8 issues were framed in the suit. The respective parties during the course of hearing of the suit produced both oral as well as documentary evidence in support of their respective cases. On consideration of the pleadings of the parties and evidence on record the learned Trial Court decreed the suit for specific performance against the defendant No. 1 on payment of Rs. 14,500/- as the balance of the agreed sale price. The learned Trial Court further directed that the plaintiff would be entitled to recover possession from the defendants in execution of the decree after execution of the sale deed and that the expenses for execution and registration are to be borne by the plaintiff. The learned Trial Court granted three months' time from the date of the judgment to the defendant No. 1 to execute the sale deed, failing which the plaintiff was made entitled to get the sale deed executed through the Court on behalf of defendant No. 1.

5. Being aggrieved by the aforesaid judgment and decree, this appeal has been preferred in this Court by the defendant No. 1. The learned Counsel appearing for the appellant, during die course of his arguments drew our attention to the provisions of Section 16(c) of the Specific Relief Act and submitted that since the plaintiff failed to aver in his plaint and prove that he had performed and has always been ready and willing to perform the agreement, the learned Trial Court erred in law in enforcing the specific performance of the contract in favor of the plaintiff. The learned Counsel for the petitioner, in order to strengthen his argument placed reliance on a decision of the Supreme Court in the case of Ouseph Varghese v. Joseph Aley and Ors.; . The learned Counsel appearing for the respondent No. 1 on the other hand submitted that the plaintiff has specifically pleaded and proved that he has performed and has always been ready and willing to perform the essential terms of the contract whereas the defendant No. 1 has failed to perform his part of the contract and therefore, this is a fit case where a decree for specific performance of contract should be granted and the learned Trial Court was justified in decreeing the suit.

6. We have been taken through the pleadings of the parties in respect of the aforesaid submissions of the learned Counsel for the parties. On perusal of the contents of the plaint we find that in paragraph 6 of the plaint it has been categorically averred by the plaintiff that he had always been ready and willing to perform the essential terms of the contract which were to be performed by him according to the true construction of the contract. It has further been stated in the plaint by the plaintiff that on the assurance of the defendant to execute the sale deed, the plaintiff on 1.12.1969 purchased the requisite stamp papers of the value of Rs.1,280/- for the execution of the sale deed of the said property and also is willing to bear the entire charges for registration. From the contents of paragraph 4 of the plaint we further fund that the entire expenses for obtaining the necessary permission from the office of the L&DO to sell the said property to the plaintiff was also borne by the plaintiff. As against the aforesaid statement made in the plaint the defendant No. 1 in his written statement denied the correctness of the aforesaid statement made in the plaint and further stated that necessary permission had been obtained by defendant No. 1 and that he had incurred the necessary expenses. It was further stated that the defendant No. 1 had not purchased any stamp paper. We have also perused the evidence on record. The plaintiff who had examined himself as one of his witnesses stated that he had spent Rs. 250/- for getting the permission for sale and that he purchased the stamp worth Rs. 1,280/- for execution of the sale deed. The said witness was not cross-examined at all by the defendant No. 1 in that respect. On the other hand the defendant No. 1 did not examine himself as one of .the witnesses but he had made a statement in the Court before framing of the issues wherein he stated that he took permission from L&DO for selling the house in question to the plaintiff and that he received Rs. l,500/- as earnest money for executing the agreement to sell (Ex.P-11) and that he was to sell the house for Rs. 16,000/- to the plaintiff. In view of the aforesaid pleadings of the parties and evidence on record we cannot but hold that the plaintiff has specifically averred and proved that he has performed and has been ready and willing to perform the essential terms of the contract which are to be performed by him; whereas on the other hand the defendant No. 1 has failed to perform his part of the contract. In view of our aforesaid findings the ratio of the decision of the Supreme Court in the case of Ouseph Varghese (supra.) is not applicable as the facts of that case and the present case are quite distinguishable. No other point was urged by the learned Counsel for the appellant before us and therefore, we are not called upon to decide any other question in this appeal. We may also mention that the learned Counsel for respondents No. 2 & 3 also raised similar pleas before us as have been raised by the learned Counsel appearing for the appellant, and accordingly, on the same ground we reject the same as well.

7. The learned Counsel appearing for respondents Nos. 2 & 3 further raised a contention before us to the effect that the finding given by the learned Trial Court in respect of Issue No. 7 is illegal and vitiated in view of the provisions of Section 50 of Delhi Rent Control Act, 1958. As the said respondents Nos. 2 & 3 have neither filed any appeal as against the aforesaid finding nor any cross-objection has been filed by the said respondents, we are of the opinion that the said plea raised by the Counsel for respondents Nos. 2 & 3 are not maintainable and accordingly, we reject the same.,.

8. In view of the aforesaid findings arrived at by us, we do not find any infirmity in the judgment and decree passed by the learned Trial Court, and accordingly we uphold the same and dismiss the present appeal with cost.