Delhi High Court

Gulshan Kumar Arora vs Ashwani Shukla on 25 July, 2014

Author: Rajiv Sahai Endlaw

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision: 25th July, 2014

+     FAO(OS) 101/2014 & CM No.3351/2014 (for condonation of 125
      days delay in filing the appeal)

      GULSHAN KUMAR ARORA                     ..... Appellant
                 Through: Mr. Siddharth Dutta and Mr. Kumar
                          Dushyant Singh, Advocates.

                                   Versus

      ASHWANI SHUKLA                                    ..... Respondent
                  Through:            Mr. K.K. Sharma, Sr. Adv. with Mr.
                                      Vibhor Bagga, Advocate.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the order dated 9th September, 2013 (of the learned

Single Judge of this Court exercising ordinary civil jurisdiction in CS(OS)

No.508/2005 filed by the appellant) rejecting the request of the

appellant/plaintiff for forthwith decreeing his suit for specific performance of

an Agreement of Sale of immovable property insofar as against the sole

respondent to this appeal.

2. Notice of this appeal was issued. The sole respondent appeared through

counsel.

3. On perusal of the appeal paper book, we found that besides the sole

respondent who is defendant No.1 to the suit, there are other defendants also to

the suit and who have not been impleaded as parties/respondents to this appeal.

We as such, at the outset enquired from the counsel for the appellant/plaintiff as

to how this appeal, without impleading all the parties to the suit from which this

appeal arises as parties to this appeal, is maintainable.

4. The counsel for the appellant/plaintiff contended that since only the

defendant No.1 who has been impleaded as sole respondent to this appeal is

concerned with the impugned order, there is no need for making the other

defendants to the suit as parties/respondents to this appeal.

5. Not only is the aforesaid contention incorrect in law (as all parties to the

suit are necessarily to be made parties to the appeal arising therefrom) but we

are, in the facts also, not satisfied with the reasoning that the other defendants

are not concerned with the order under appeal.

6. Though the appeal is liable to be rejected on this ground alone but we

heard the counsel for the appellant/plaintiff on the merits of the appeal also.

7. The appellant/plaintiff has not even bothered to file a copy of the plaint

in the suit or the other relevant records of the suit from which this appeal arises.

It was thus difficult to comprehend the arguments of the counsel for the

appellant/plaintiff. We thus reserved orders and have called for the suit file and

a perusal whereof shows:

(i) that the appellant/plaintiff instituted the suit for the relief of

specific performance of Advance Receipt-cum-Agreements to Sell and

Purchase dated 4th May, 2004 and 29th July, 2004 impleading besides the

respondent herein as defendant No.1, one Shri Kanwaljeet Sharma as

defendant No.2, one Smt. Pushpa Sharma as defendant No.3, one Shri

Ashok Kumar Sharma as defendant No.4 and the Municipal Corporation

of Delhi as defendant No.5, inter alia pleading, (a) that the defendant

No.3 Smt. Pushpa Sharma is the sole owner of property No.B-4/195,

Safdarjang Enclave, New Delhi ad-measuring 200 sq. yds.; (b) that the

said defendant No.3 agreed to sell the entire terrace right over and above

the ground floor with all rights of easement and proportionate rights in

the land to the respondent/defendant No.1 and defendant No.4 Shri

Ashok Kumar Sharma jointly under the single Agreement dated 21 st

May, 1998; (c) that the defendant No.3 also executed a General Power of

Attorney (GPA) constituting the respondent/defendant No.1 and

defendant No.4 as her authorized representatives to the extent of 50%

share each; (d) that in pursuance to the said Agreement to Sell, the

defendants No.1 & 4 came into possession of the said terrace; (e) that the

defendant No.4 transferred all his rights under the said Agreement to Sell

by defendant No.3 in his favour, in favour of the defendant No.2 Shri

Kanwaljeet Sharma by executing an Agreement to Sell and GPA dated

4th May, 1999 in favour of the defendant No.2; (f) that the

respondent/defendant No.1 and the defendant No.2 agreed to sell their

respective shares in the said terrace to the appellant/plaintiff for a total

sale consideration of Rs.37,50,000/-; (g) that however while the

respondent/defendant No.1 executed the Advance Receipt-cum-

Agreement to Sell and Purchase on 4th May, 2004 for total sale

consideration of Rs.22,50,000/-, the defendant No.2 though had agreed to

sell his undivided share for total consideration of Rs.15,00,000/- but no

formal agreement was executed; (h) that however the

respondent/defendant No.1 and defendant No.2 with a view to secure the

appellant/plaintiff have delivered all the original documents in their

custody to the appellant/plaintiff; (i) that the respondent/defendant No.1

and the defendant No.2 were however refusing to complete the sale in

favour of the appellant/plaintiff;

(ii) that vide ex-parte ad-interim order dated 20th April, 2005 in the

suit, status-quo in terms of physical condition, ownership and possession

in respect of the said terrace was ordered to be maintained;

(iii) that the defendants No.3&4 filed a written statement confirming

that the defendant No.3 was the owner and had agreed to sell the terrace

to the respondent/defendant No.1 and defendant No.4 and that the

defendant No.4 had assigned his rights under the said Agreement in

favour of the defendant No.2 but otherwise denying knowledge of any of

the other averments in the plaint and denying that the appellant/plaintiff

was entitled to any relief;

(iv) that the respondent/defendant No.1 and the defendant No.2 also

filed their separate written statements contesting the suit;

(v) that vide order dated 1st February, 2007, the learned Single Judge,

finding no prima facie case in favour of the appellant/plaintiff qua the

defendant no.2, dismissed the application of the appellant/plaintiff for

interim relief and vacated the ex-parte order granted earlier, in so far as

against the defendant no.2; the appellant/plaintiff had also filed I.A.

No.8720/2006 under Order XII Rule 6 of the Civil Procedure Code, 1908

(CPC) for a decree for specific performance against the defendant No.2

on admissions; the said application was also dismissed vide the same

order;

(vi) that the appellant/plaintiff preferred FAO(OS) No.379/2007; it is

not clear, whether in the said appeal the dismissal of the application

under Order XII Rule 6 was also challenged; vide ex-parte ad-interim

order dated 24th September, 2007 in the appeal, the ex-parte ad-interim

order in the suit was directed to be maintained; the said ex-parte ad-

interim order in the appeal was continued and ultimately vide order dated

2nd February, 2012, finding that the trial in the suit was in progress, the

appeal was disposed of directing the defendant No.2 to maintain status-

quo;

(vii) that the respondent/defendant No.1 in violation of the order of

status quo dealt with the terrace and was proceeded against under Order

XXXIX Rule 2A CPC and directed to undo what he had done; he failed

to do that also;

(viii) that the respondent/defendant No.1 appeared before the learned

Single Judge on 16th April, 2013 and stated that he had settled the matter

with the appellant/plaintiff and undertook to execute Sale Deed in favour

of the appellant/plaintiff in terms of the Agreement to Sell dated 4 th May,

2004, (specific performance of which was being claimed by the

appellant/plaintiff in the suit) and a decree in favour of the

appellant/plaintiff and against the respondent/defendant No.1 be passed

and the respondent/defendant No.1 be permitted to transfer his half

undivided share of the suit property to the plaintiff;

(ix) that recording the said statement of the respondent/defendant No.1,

certain directions were issued to the respondent/defendant No.1;

(x) that the respondent/defendant No.1 failed to comply with the said

directions also and was ultimately sent to prison;

(xi) that the appellant/plaintiff at that stage pressed for a decree for

specific performance forthwith against the respondent/defendant No.1

and which was denied vide the impugned order.

8. The learned Single Judge, notwithstanding the statement of the

respondent/defendant No.1 before the Court that the suit insofar as against him

be decreed, has denied the said decree to the appellant/plaintiff, for the reason:

(A) that no such decree can be passed without full trial since many

questions arising out of the pleadings of the parties would require to be

answered before any final judgment is passed in the matter;

(B) that it shall have to be considered, whether any decree for specific

performance can be passed against the respondent/defendant No.1, when

according to the appellant/plaintiff‟s own case in the plaint, the terrace in

dispute is still in the ownership of the defendant No.3 who has only

executed an Agreement to Sell in favour of the respondent/defendant

No.1 and defendant No.4 and no Sale Deed has been executed;

(C) that it will have to be examined, if the appellant/plaintiff can

maintain the suit for specific performance without praying for a decree of

specific performance against the defendant No.3.

9. The appeal is accompanied with an application for condonation of 125

days delay in filing thereof. The appellant/plaintiff has sought condonation of

delay contending that though the respondent/defendant No.1 had stated before

the Court that the suit against him be decreed and had also filed an affidavit to

the said effect but subsequently, while the cross-examination of the

appellant/plaintiff‟s witness was going on, has filed an application seeking

permission to allow him to cross-examine the appellant/plaintiff‟s witness and

which gave rise to a doubt in the mind of the appellant/plaintiff that the

respondent/defendant No.1 was resiling therefrom. The counsel for the

appellant/plaintiff thus contended that since the respondent/defendant No.1 is

not treating himself to be bound by his affidavit and his statement before the

Court that the suit insofar as against him be decreed and, taking advantage of

the impugned order, is resiling from his admission, it has become necessary for

the appellant/plaintiff to challenge the said order.

10. The senior counsel for the respondent/defendant No.1 has not made any

arguments on merits except to contend that the delay should not be condoned.

11. After having gone through the records of the suit, we not only do not find

any error in the reasoning given by the learned Single Judge but may also add:

(I) The grant of the relief of specific performance is a discretionary

relief and is not to be granted automatically, even if the

appellant/plaintiff proves the Agreement to Sell and that he was ready

and willing to perform the same; and,

(II) The case with which the appellant/plaintiff approached the Court

was of the respondent/defendant No.1 and the defendant No.2 having

„jointly‟ agreed to sell their respective shares to the appellant/plaintiff for

a total sale consideration of Rs.37,50,000/- and having „jointly delivered

all the original documents of their title in their custody to the

appellant/plaintiff and having thereafter jointly dealt with the

appellant/plaintiff‟. The relief claimed of specific performance was also

„jointly‟ claimed against the respondent/defendant No.1 and defendant

No.2. The suit, insofar as against the defendant No.2, admittedly has to

go on and it is still to be decided, whether the appellant/plaintiff is

entitled to specific performance against the defendant No.2 or not.

Rather, the defendant No.2 is denying the very Agreement as well as its

enforceability. If the appellant/plaintiff is not found entitled to the relief

against the defendant No.2, a question will arise, whether the

appellant/plaintiff is still entitled to the relief against the

respondent/defendant No.1. It cannot be lost sight of that the

appellant/plaintiff in the plaint, particularly in paras 8 & 11, has

expressly pleaded the Agreement with the respondent/defendant No.1

and defendant No.2 being "joint" and the respondent/defendant No.1 and

defendant No.2, though entitled to share the sale consideration equally,

as per their internal arrangement having agreed to the

respondent/defendant No.1 getting the sale consideration of

Rs.22,50,000/- and the defendant No.2 getting the sale consideration of

Rs.15,00,000/- only. It will still have to be decided, whether specific

performance, if ordered against the respondent/defendant No.1, would be

of part of a joint contract by the respondent/defendant No.1 and

defendant No.2 in favour of the appellant/plaintiff and if so, whether the

same falls within the parameters of Section 12 of the Specific Relief Act,

1963.