K.D. Sharma vs C.K. Mody
1995 Latest Caselaw 1006 Del

JUDGMENT

Devinder Gupta, J.

(1) This appeal is against the judgment and decree passed on 14.3.90 by Shri Prem Kumar, Commercial Sub Judge dismissing the plaintiff/Appellant's suit.

(2) On 6.3 80, a suit was filed by the plaintiff against one Shri H K. Mody, (now deceased and represented by his L R.s, the respondents), claiming a decree directing the deft. by a mandatory injunction to sign the deed of sale and to get the same registered in favor of the pff. It was alleged that by an agreement in writing dated 22.10 71, the deft. contracted to sell to the pff. plot No. 21 block 'K' in Hauz Khas, and the house constructed thereon for Rs. 1 80,000%. A sum of Rs. 40.000.00 was paid at the time of execution of the deed. The house was subject to mortgage with L.I.C. It was provided in the agreement that on pff. making payment of Rs. 80.000.00 to enable the deft. to redeem the house to enable him to transfer the property in pff.'s favor, vacant possession would be delivered to the pff. The balance amount of Rs. 60.000.00 was payable at the time of registration subject to the deft. procuring Income Tax Clearance Certificate and redeeming the Life Insurance Mortgage. It is further alleged that in addition to Rs. 40,000.00 paid by the pff. to the deft. at the time of execution of agreement a further sum of Rs. 80.000.00 was paid & pff. was put in possession of the house on 25.11.71 and thereafter pff. has been residing in the house in part performance of the contract. The deft. failed to procure the Income Tax Clearance Certificate, despite pff.'s request & deft. did not perform his part of the contract. In the meanwhile, with the consent of the deft. the pff. purchased stamp paper worth Rs. 14.400.00 and prepared a draft sale deed but the same was not signed by the deft, who had promised to execute the same. Thus the Deft. failed and neglected to execute the sale deed. The pff. thus claimed a decree for mandatory injunction. "Present: Counsel for the parties. Previous cost not paid. Evidence not produced today. No steps taken. Further adjournment is sought on the ground of sickness of the plaintiff. No medical certificate Procedure if parties fail to appear on day fixed. 2. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order Ix or make such other order as it thinks fit. [Explanation : Where the evidence or a substantial portion of evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.] Court may proceed notwithstanding either party fails to produce evidence etc. 3. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which notwithstanding such default. (a) if the parties are present, proceed to decide the suit forthwith : or (b) if the parties are, or any of them is. absent, proceed under rule 21.