Delhi High Court
Shri Madan Lal Khurana vs Smt.Sudesh Batra & Anr. on 5 April, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 05.04.2011
+ RSA No.43/2004
SHRI MADAN LAL KHURANA ...........Appellant
Through: Mr.Amit Vohra, Advocate.
Versus
SMT.SUDESH BATRA & ANR. ..........Respondents.
Through: Mr.Rajiv Saxena, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
22.11.2003 which had endorsed the finding of the trial judge dated
19.4.2001 whereby the suit filed by the plaintiff Madan Lal
Khurana seeking specific performance of an agreement to sell
dated 19.8.1975 (Ex.PW-1/1) as also a declaration and permanent
injunction to the effect that the defendant be injuncted from
interfering in the premises i.e. Half of property bearing No.E-30,
Block-II, Railway Colony, Greater Kailash, New Delhi (hereinafter
referred to as 'the suit property') had been dismissed.
2. This is a second appeal. The parties are closely related.
Plaintiff Madan Lal Khurana has since expired. He is represented
by his widow Raj Rani Khurana, she is the niece of the defendant
Sudesh Batra. The case of the plaintiff as is evident from the
pleadings is that the parties had entered into an agreement to sell
on 19.8.1975 by virtue of which the defendant agreed to sell half of
the suit property in favour of the plaintiff. The defendant had been
allotted the whole plot no.E-30, Block-II, Railway Colony, Greater
Kailash Enclave-II, New Delhi from EP Railway Refugee
Rehabilitation and House Building Cooperative Society Limited; the
demand raised upon the defendant was Rs.15,066/-, he was not
able to fulfill the entire demand; the plaintiff agreed to pay 50% of
the said amount i.e. Rs.7,533/- for half of the undivided plot. In
lieu of the plaintiff having agreed to make half payment of the
demand upon the defendant the aforenoted agreement to sell
Ex.PW-1/1 had been entered into between the parties. This is an
admitted document.
3. The defence of the defendant in the courts below was that he
had cancelled this agreement to sell which has been executed
between the parties. Suit filed by the plaintiff in April 1989 was
time barred as the cancellation of the aforenoted document had
been communicated by him vide his communication dated
12.6.1984 (Ex.DW-1/1).
4. Ex.DW-1/1 dated 12.6.1984 has been perused. It has
specifically cancelled the GPA and will dated 19.8.1975; there is no
reference to the agreement to sell. A subsequent document i.e. the
communication dated 15.4.1986 (mark A/ admitted document) had
been sent by the defendant to the plaintiff wherein he had made a
specific reference of the agreement to sell cancelling it. The
impugned judgment returning a finding that the suit of the plaintiff
filed in April 1989 is time barred as the agreement to sell had in
fact been cancelled by the defendant on 15.4.1986 is prima facie
not borne out from the record.
5. This is a second appeal court. It can interfere only if the
finding in the impugned judgment is perverse. What is perverse
has been detailed by the Courts time and again. If evidence has
been wholly ignored it would amount to a perversity. Record
shows the affidavit Ex.PW-1/3 dated 4.9.1977 i.e. the affidavit of
the defendant has not been considered. The trial court as also the
impugned judgment of the first appellate court have given a total
go by to this document. Learned counsel for the appellant pointed
out that this has raised a substantial question of law.
6. This submission of the learned counsel for the appellant is
borne out from the record. Although Ex.PW-1/3 had been exhibited
in the testimony of PW-1 yet both the judgments of the trial court
as also the impugned judgment have not made any reference of
this document. This is a valuable document as has been
highlighted from its context by the learned counsel for the
appellant. Be that as it may this Court, this submission of the
learned counsel for the appellant has force. This Court is however
not adverting to the merits of the controversy between the parties.
7. This is, however, a fit case for the remand. The matter is
accordingly remanded back to the trial judge to consider the
controversy afresh and to give issue-wise findings on the merits of
the case. For the said purpose the parties will appear before
learned District & Sessions Judge (Central) on 08.4.2011 at 10.30
AM who will assign the case to the concerned trial judge.
8. Record be returned back.
INDERMEET KAUR, J.
APRIL 05, 2011/nandan
