Sardar Nirmaljeet Singh vs Smt. Anupama Motwani
2017 Latest Caselaw 4726 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+              RFA No. 763/2017 & CM Nos. 32095/2017, 32096/2017
               & 32141/2017

%                                                  4th September,2017

SARDAR NIRMALJEET SINGH                                  ..... Appellant
                 Through:                Mr.    Rajat    Aneja,      Ms.
                                         Chandrika Gupta and Ms. Nisha
                                         Sharma, Advocates.
                          versus

SMT. ANUPAMA MOTWANI                                    ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code of Civil

Procedure, 1908 (CPC) is filed by the defendant in the suit impugning

the judgment of the Trial Court dated 17.4.2017, by which the trial

court has decreed the suit for specific performance filed by the

respondent/plaintiff with respect to 1/8th share in the suit property

bearing no.17/6, West Patel Nagar, New Delhi.

2. At the outset, it is required to be stated that scope of hearing of

this appeal is limited because the appellant/defendant in spite of

service failed to appear and contest the suit. Appellant/defendant was

proceeded ex-parte vide order dated 29.7.2009. Appellant/defendant

thereafter moved an application under Order IX Rule 7 CPC, but the

same was also dismissed. There is therefore neither any written

statement of the appellant/defendant in the trial court nor was any

evidence led on behalf of the appellant/defendant.

Appellant/defendant has not even cared to cross-examine the PW-

1/respondent/plaintiff.

3. The subject suit for specific performance was filed by the

respondent/plaintiff pleading that parties entered into an agreement to

sell dated 25.5.2005 whereby respondent/plaintiff agreed to purchase

from the appellant/defendant the latter's 1/8th undivided share in the

property bearing no.17/6, West Patel Nagar, New Delhi for a total sale

consideration of Rs.38.22 lacs. Respondent/plaintiff pleaded to have

initially paid a sum of Rs.2 lacs and thereafter a sum of Rs.5 lacs in

cash. Balance payment was to be made within 15 days of converting

the property from leasehold to freehold. Respondent/plaintiff also

pleaded that she had already purchased the remaining share of the suit

property from other co-owners except 3/4th share owned by Sardar

Guljeet Singh and with respect to which share also

respondent/plaintiff pleads to have in her favour an agreement to sell.

Respondent/plaintiff pleaded that since 2008, the appellant/defendant

in spite of requests was not getting converted the property into

freehold and therefore after serving the legal notice dated 18.6.2008

the subject suit was filed.

4. Respondent/plaintiff appeared in the witness box as PW-1 and

filed her affidavit by way of evidence. The agreement to sell dated

25.5.2005 was proved as Ex.PW1/A. The site plan was proved as

Ex.PW1/B. Receipt acknowledging the payment of Rs.2 lacs was

proved as Ex.PW1/C. Legal notice and postal receipts were proved as

Ex.PW1/D and Ex.PW1/E. As already stated above, PW-1 was not

cross-examined by the appellant/defendant and nor the

appellant/defendant has led any evidence.

5. Trial court has accordingly decreed the subject suit directing

specific performance of the agreement to sell of 1/8 th share of the

appellant/defendant and the trial court has further directed the

appellant/defendant to apply with other co-sharers for converting the

suit property from leasehold to freehold.

6. In my opinion, in view of the fact that respondent/plaintiff

proved her case, and the appellant/defendant failed to contest the suit

and failed to lead any evidence, no illegality can be found in the

judgment of the court below decreeing the suit.

7. Learned counsel for the appellant/defendant argued that a suit

for specific performance is not bound to be decreed even assuming the

appellant/defendant had not contested the suit, and it is further argued

that respondent/plaintiff has failed to prove her readiness and

willingness inasmuch as no proof has been filed with respect to

financial capacity. It is also argued by the appellant/defendant that

respondent/plaintiff failed to file any proof of having made further

payment in cash of Rs. 5 lacs, and therefore, the suit was bound to be

dismissed.

8. No doubt, grant of relief of specific performance is

discretionary, and is granted by showing performance of acts under an

agreement to sell, however such a doctrine equally does not give a

license to a proposed seller to become dishonest in spite of entering

into an agreement to sell. In the present case, balance consideration

was only payable after converting the property from leasehold to

freehold and therefore no further act had to be done by the

respondent/plaintiff. Also it is to be noted that the doctrine of specific

performance being discretionary is not for being used by parties such

as the present appellant/defendant who in spite of opportunity failed to

appear and contest by filing a written statement, failed to cross-

examine the witness of the respondent/plaintiff and also failed to lead

any evidence. If a person has strength/conviction in his case, then he

must come into the witness box, be ready to stand the test of cross-

examination and by firstly at least filing a detailed pleading of

defence. Failing to contest a case can hardly be a basis for a defendant

in the suit to argue that though the defendant will not do what is

required and expected for him in law by defending the case, the court

should become a prosecutor for such a negligent party for dismissing a

suit which is otherwise proved by the plaintiff by leading evidence.

9.    There is no merit in the appeal. Dismissed


SEPTEMBER 04, 2017/ib                         VALMIKI J. MEHTA, J