Jairam Das vs Smt.Sadhana & Ors.
2022 Latest Caselaw 15629 MP

                                                          1
                          IN    THE      HIGH       COURT OF MADHYA                     PRADESH
                                                     AT JABALPUR
                                                    BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                         ON THE 1st OF DECEMBER, 2022
                                              FIRST APPEAL No. 448 of 1998

                          BETWEEN:-
                          JAIRAM DAS, AGED ABOUT 68 YEARS, SON OF
                          NAINUMANL GANGWANI, RESIDENT OF SUBHASH
                          NAGAR,   SHASTRI  WARD,   SAUGAR, (MADHYA
                          PRADESH)

                                                                                      .....APPELLANT
                          (BY SHRI R.P. KHARE-ADVOCATE)

                          AND
                          1. SMT. SADHANA, DAUGHTER OF KARODI, WIFE OF
                          HARI SONI

                          2. SMT. SUNANDA SONI, DAUGHTER OF KARODI,
                          RESIDENT OF ITWARI TORI SAUGAR
                          3. RAJENDR AGED ABOUT 45 YEARS (SINCE DEAD THR.
                          LRs)

                          3(i) SMT. RAGNI DEVI, AGED ABOUT 39 YEARS, WIDOW
                          OF RAJENDRA KUMAR,
                          (ii) SABMAL, AGED ABOUT 17 YEARS,
                          (iii) GAURAV, AGED ABOUT 14 YEARS,

                          BOTH MINOR SONS OF LATE RAJENDRA KUMAR THR.
                          MOTHER SMT. RAGNI DEVE, ALL RESIDENTS OF
                          MOHAN NAGAR WARD, SARAFA SAGAR (M.P.)

                          4. ASHOK KUMRA AGED ABOUT 35 YEARS,

                          5. ANIL AGED ABOUT 40 YEARS,

                          3 TO 5 SONS OF KARODILAL GUJARYA RESIDENT OF
                          MOHAN NAGAR WARD, SAUGAR.

                                                                                   .....RESPONDENTS
                          (NONE FOR THE RESPONDENTS)

                                This appeal coming on for final hearing this day, the court passed the
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 12/2/2022
6:56:27 PM
                                                               2
                          following:
                                                            JUDGMENT

This first appeal has been preferred by the appellant/plaintiff challenging the judgment and decree dated 29.01.1998 passed by 1st Additional District Judge, Sagar in Civil Suit No. 42-A/1996 whereby in a suit for specific performance of agreement of sale dated 04.04.1993, learned Court below has passed decree of refund of advance consideration of Rs.1,25,000/- along with interest @6% per annum from the date of agreement of sale dated 04.04.1993.

2. In short the facts are that the plaintiff instituted a suit for specific performance of agreement of sale dated 04.04.1993 with the allegations that the defendants are members of joint Hindu family, who are owner of a three

storeyed house and in a shop situated at ground floor, the plaintiff was inducted as tenant, in which he was carrying out business in the name and style "Gwalior suitings". The defendants 2-4 and their father Karodi Lal jointly entered into an agreement of sale dated 04.04.1993 with the plaintiff to sell the entire house and received an amount of Rs. 1,25,000/- in advance. It was agreed between the parties that the defendants 2-4 and Karodilal shall execute the sale deed with regard to shop as per wishes of the plaintiff and the sale deed with regard to the remaining part of the house shall be executed after disposal of the civil case pending before the District Judge, Sagar, after receipt of consideration of Rs.4,75,000/-.

3. It is alleged that the plaintiff requested the defendants to get the civil suit disposed off and to execute the sale deed but they avoided to get the case decided and to execute the sale deed, then the plaintiff requested the defendants to execute the sale deed with regard to the shop in question only, situated at ground floor, but the same was also avoided by the defendants and Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 12/2/2022 6:56:27 PM

ultimately, the plaintiff issued registered notice dated 10.02.1995 to the defendants but they did not execute the sale deed. It is alleged that the plaintiff is ready and wiling to get executed the sale deed and is still ready and willing for the same. With these averments, the suit was filed.

4. The defendants filed written statement and contended/admitted that the plaintiff has paid an amount of Rs.1,25,000/- in advance but separate consideration of Rs.1,25,000/- was not settled with regard to the disputed shop/property and the plaintiff is in possession of the shop in the capacity of tenant. It is further contended that since the suit is pending before the Court of District Judge, Sagar, therefore, no question arises for execution of sale deed in favour of the plaintiff and the suit is premature. With these contentions, the suit was prayed to be dismissed.

5. On the basis of pleadings of the parties, learned trial Court framed issues and recorded evidence of the parties. Vide judgment and decree dated 29.01.1998, learned trial Court held that the defendants entered into an agreement to sell the disputed shop/property as shown in the plaint map from the red ink, for consideration of Rs.1,25,000/-. However, while deciding issue 2 and 3, refused to grant decree of specific performance and instead, granted decree of refund of consideration of Rs.1,25,000/- to the plaintiff along with interest @6% per annum from the date of agreement dated 04.04.1993.

6. Learned counsel for the appellant/plaintiff submits that after holding the agreement to be a proven document and after deciding the issue No.1 in affirmative, learned Court below ought to have granted decree of specific performance and absence of pleading in the plaint with regard to readiness and willingness to pay the expenses of the execution of sale deed is not fatal to the suit. Learned counsel for the appellant/plaintiff submits that by way of issuing Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 12/2/2022 6:56:27 PM

registered notice dated 10.02.1995 (Ex. P/2), the plaintiff had already informed to the defendants that he is ready to get executed sale deed after payment of requisite expenses of registration of the sale deed.

7. Learned counsel for the appellant/plaintiff further submits that the pleadings made in that regard in para 5 of the plaint has not been denied by the defendants in the written statement. As such in the existing circumstances, there was no impediment to grant decree of specific performance in favour of the plaintiff with regard to disputed property/shop situated at ground floor. Accordingly, he prays for passing of decree of specific performance in favour of the plaintiff/appellant.

8. Heard learned counsel for the appellant/plaintiff and perused the record.

9. The following point for consideration arises in the instant appeal:-

"Whether in the existing facts and circumstances of the case, the plaintiff was entitled for decree of specific performance instead of refund of advance/full consideration".

10. The execution of agreement of sale dated 04.04.1993 (Ex. P/1) has been admitted by the defendants in para 3 of the written statement including receipt of advance consideration of Rs.1,25,000/- from the plaintiff. Accordingly, the learned trial Court has decided the issue no.1 in affirmative.

11. As regards readiness and willingness to get executed the sale deed in pursuance of the agreement, the plaintiff within requisite period issued a registered notice dated 10.02.1995 (Ex.P/2) through advocate mentioning the fact that the plaintiff is ready and willing to get executed the sale deed and is

Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 12/2/2022 6:56:27 PM

also ready to bear the expenses of the sale deed and despite making pleadings with regard to readiness and willingness in para 5 of the plaint, the defendants have not denied the same.

12. By moving an application under Order 1 Rule 10 C.P.C. (I.A. No.2996/2002), it has been brought to the notice of this Court that remaining part of the house has already been sold by the defendants by executing two registered sale deeds dated 18.12.2000 and only the disputed property/shop remains in the ownership of the defendants.

13. Taking into consideration of the aforesaid undisputed pleadings and unrebutted averments of the notice, it cannot be said that the plaintiff was not ready and willing to get executed the sale deed and also was not ready to bear the expenses of the sale deed. Consequently, the finding recorded by learned trial Court on issue nos. 2 and 3 are not sustainable.

14. Resultantly, the suit filed by the plaintiff/appellant deserves to be and is hereby decreed holding the plaintiff to be entitled to get the sale deed executed in his favour upon making payment of entire expenses of the sale deed.

15. Parties to bear their own costs.

16. Registry is directed to draw a decree accordingly.

17. Interim application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE HK

Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 12/2/2022 6:56:27 PM