Madhya Pradesh High Court
Smt Ameena Rayeen vs Gopal Gupta (Dead) Through Varisan 1(A) ... on 14 February, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:3316
1 SA-2772-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 14th OF FEBRUARY, 2025
SECOND APPEAL No. 2772 of 2023
SMT AMEENA RAYEEN
Versus
GOPAL GUPTA (DEAD) THROUGH VARISAN 1(A) SMT MADHU GUPTA AND
OTHERS
Appearance:
Shri Anmol Khedkar - Advocate for appellant.
Shri Rajiv Raghuvanshi - Advocate for respondent No.7/caveat.
ORDER
Heard on the question of admission.
2 . This Second Appeal under Section 100 of CPC, has been filed against
judgment and decree dated 02.11.2023 passed by 15th District Judge, Gwalior in
Regular Civil Appeal No.130/2018, by which challenge to judgment and decree dated
25.07.2018 passed by 4th Civil Judge Class - I, Gwalior in RCS No.7000577A/2016
has been dismissed.
3 . Facts necessary for disposal of present second appeal, in short, are that
respondent filed a suit for specific performance of contract. It was his case that
appellant had entered into an agreement to sell house No.42/806/310 (New
No.49/1661) situated at Ward No.49, Samadhiya Colony Balabai Ka Bag, Lashkar,
Gwalior for consideration of amount of Rs.20 lacs and amount of Rs.10 lacs was paid
by way of earnest money. It was his case that remaining amount of Rs.10 lacs was
payable within a period of six months and thereafter, sale deed was to be executed. It
was also agreed that in case of any dispute amongst the family members of appellant,
appellant would resolve the same and whatever time will be consumed for resolving the
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said dispute, then time for execution of sale deed shall automatically stand extended by
said period. It was also agreed that in case if defendant fails to execute the sale deed,
then plaintiffs shall be entitled to get the sale deed executed and shall also be entitled to
recover the damages. It was also agreed upon that it will be the obligation of plaintiffs
to bear the registration charges and possession of disputed property shall also be given
at the time of sale deed. It was further agreed that till the sale deed is executed, not
only defendant would keep the premises in a clean condition, but will also pay the
entire taxes. It was also agreed that even legal representatives of parties would be
governed by the agreement to sell. It was further pleaded that the agreement to sell was
voluntarily executed by defendant on 26.02.2016 in presence of notary Gyanendra
Kumar Panday and witnesses. One of the witness of an agreement to sell was the
husband of defendant and another witness was one Rashid.
4. On 26.07.2016 plaintiffs sent a notice to defendant for execution of sale deed
after receiving an amount of Rs.10 lacs. In spite of that it was alleged that defendant is
not executing the sale deed. In reply to notice, a wrong reply was given on the basis of
false and self-imaginary grounds. It was falsely mentioned that defendant had taken a
loan of Rs.8 lacs and had executed the document by way of security of loan. It was
wrongly pleaded that market value of suit property is Rs.4000/- per sq.ft.. It was
pleaded that since property was under mortgage and it was under lock by bank,
therefore, price of disputed property was only Rs.20 lacs and an agreement to sell was
voluntarily executed by defendant. It was wrongly mentioned that market value of suit
property is Rs.66,06000/-. It was further pleaded that not only the plaintiffs were ready
and willing to execute their part of contract, but they were in possession of remaining
consideration amount and expenses which were to be spent for execution of sale deed
including stamp duty. Accordingly, suit for specific performance of contract was filed.
5. The defendant/appellant filed her written statement and denied that an
agreement to sell dated 26.02.2016 was executed for consideration of amount of Rs.20
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lacs and the amount of Rs.10 lacs was received by way of advance. It was pleaded that
since appellant/defendant is an illiterate lady, therefore, by taking advantage of her
illiteracy, plaintiff had obtained her signature on the agreement dated 26.02.2016. It
was admitted that property under dispute was mortgaged with the bank and defendant
was under obligation to repay the mortgage amount, but denied that agreement to sell
was executed in order to repay the mortgaged amount. In fact appellant/defendant had
taken a loan of Rs.8 lacs from the plaintiffs in order to save the property from the bank.
It is submitted that in fact husband of defendant had taken a loan of Rs.7 lacs and
mortgaged his property worth of Rs.66,06000/- and since husband of defendant could
not repay the installment in time, therefore, an outstanding loan amount went to
Rs.8,32,342/-. Accordingly, bank after getting the house vacated, had put its lock on
25.05.2016, therefore, defendant was trying hard to make arrangement of Rs.8 lacs, so
that mortgage amount could be repaid. It was further pleaded that an amount of
Rs.1,50,000/- was deposited by her husband through cheque in Central Bank of India,
Branch Gird, Gwalior and an amount of Rs.32342/- was paid out of his own savings.
After the entire mortgaged amount was paid, the Central Bank of India removed its
lock and no objection certificate was issued. At the time of an agreement to sell, it was
agreed upon between the parties that after the refund of advance paid by plaintiffs, this
agreement to sell will be cancelled. However, by taking advantage of illiteracy of
defendant, an agreement to sell was executed. It was further pleaded that since price of
house is Rs.66,06000/-, therefore, there is no question of alienating the same for
consideration amount of Rs.20 lacs. It was further pleaded that defendant had properly
replied the notice sent by plaintiffs and since defendant had taken Rs.8 lacs, therefore,
she is ready and willing to repay the same.
6. Trial Court after recording the evidence of both the parties held that defendant
has failed to prove that agreement to sell was executed by way of security of loan. It
was also held that plaintiffs were ready and willing to perform their part of contract and
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they were always in possession of remaining amount of Rs.10 lacs as well as amount
which was required for bearing the registration charges. Accordingly, suit was decreed
and it was directed that sale deed be executed within period of two months after
receiving the amount of Rs.10 lacs. It was also observed that in case if defendant fails
to execute the sale deed, then sale deed shall be executed through Court.
7 . Challenging the judgment and decree passed by Trial Court, appellant
preferred an appeal which too has been dismissed by appellate Court by judgment and
decree dated 02.11.2023 passed in Regular Civil Appeal No.130/2023.
8 . Challenging the judgments and decrees passed by Courts below, it is
submitted by counsel for appellant that if sale deed is executed, then it will cause
comparative hardship to the appellant.
9. Heard counsel for the parties.
1 0 . By referring to the evidence of Vikas Dixit (PW-2), it is submitted by
counsel for appellant that appellant had given a suggestion to witness that market value
of suit property is Rs.66 lac which was denied for want of knowledge. However, it is
fairly conceded that since appellant was proceeded ex parte, therefore, appellant did
not lead any evidence to show that market value of suit property was Rs.66 lacs. It is
really shocking that on one hand, appellant is of the view that in case if decree is
executed, then appellant would be rendered homeless and would suffer irreparable
loss, but when appellant had an opportunity to contest the case on merits, then for the
reasons best known to the appellant, she did not appear before the Trial Court and
ultimately, she was proceeded ex parte. At this stage, it is submitted by counsel for
appellant that there is a possibility of compromise, therefore, matter may be adjourned.
11. From the order-sheets of Trial Court, it is clear that when the case was fixed
for recording of defence evidence, a prayer was made that there is a possibility of
compromise and accordingly, case was deferred on 21.11.2017. Again on 04.12.2017
case was adjourned to explore the possibility of compromise. On 11.01.2018 last
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opportunity was granted to appellant to lead the defence evidence. Therefore, on
23.01.2018 an application was filed stating that although defendant has already filed
her affidavit under Order 18 Rule 4 of CPC, but because of sickness, she is unable to
appear before Trial Court and Trial Court by order dated 23.01.2018 rejected the said
application by considering the fact that case was fixed for recording of defence
evidence on 05/09/2017, 14/09/2017, 27/10/2017, 30/10/2017, 06/11/2017, 21/11/2017
and 11/01/2017, but she did not appear. Even no medical document was filed
alongwith the application for deferment of cross-examination. Accordingly, right to
lead evidence was closed and case was fixed for final arguments. Thereafter, it appears
that another application was filed seeking permission to lead evidence and Trial Court
by order dated 08/02/2017 allowed the said application on payment of cost of Rs.500/-.
On the very said date, another request was made by appellant that she is interested to
compromise the matter and accordingly, case was fixed for exploring the possibility of
compromise. On 14/02/2018, 27/02/2018, 14/03/2018, 26/04/2018 and 11/05/2018 no
application for compromise was filed and accordingly, Trial Court fixed the case for
recording the defence evidence with a clear stipulation that defendant/appellant must
produce her evidence. However, on 21/06/2018 defendant again sought time to lead
defence evidence. The case was fixed for 05/07/2018. On 05/07/2018 in spite of
repeated calls neither defendant nor her counsel appeared before the Trial Court and
accordingly, not only the defendant was proceeded ex parte, but her right to lead
defence evidence was once again closed and the case was fixed for final arguments and
ultimately final decision was pronounced.
12. Today also counsel for appellant instead of arguing the matter on merits, was
hammering upon the submission that there is a possibility of compromise. The conduct
of appellant in the Trial Court has already been considered in detail. Whenever
appellant was directed to lead the evidence, she did not enter in the witness box and
consumed the time of Court on the false pretext of possibility of compromise. Today
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also counsel for appellant was not ready with the arguments and with great difficulty,
he argued only on the question that in case if the decree is executed, then appellant
would suffer irreparable loss. If appellant was not interested in contesting the case and
was trying to waste the time of Court on the false pretext that there is a possibility of
compromise, then this Court is left with no other option but to reject the prayer of
adjournment on the pretext of possibility of compromise. Furthermore, it is submitted
by counsel for respondents that sale deed has already been executed through Court.
Even the conduct of appellant did not improve in the civil appeal. The civil appeal was
filed on 04/09/2018 without any court fee. In spite of multiple opportunities, court fee
was not paid and ultimately appeal was dismissed on 04/07/2019 on the ground of non-
payment of court fee. Thereafter, it appears that M.A. No.5377/2022 was filed before
High Court and matter was reopened for payment of court fee. Ultimately, on
28/07/2023 court fee of Rs.1 lac was paid. From the order-sheets of appellate Court, it
appears that no effort was made by appellant to compromise the matter.
13. Furthermore, even in this appeal, Court fee was not paid and accordingly, by
order dated 15.03.2024, the Principal Registrar of this Court dismissed the appeal on
the ground of non-compliance of pre-empetory order dated 25.01.2024. By order dated
20.12.2024 passed in MCC No.4336/2024, the appeal was restored subject to payment
of deficit court fee. In MCC, it was pleaded by counsel for respondent that by taking
advantage of pendency of second appeal, the appellant is resisting the execution of
decree and ultimately, it was observed by this Court that in absence of stay, the
Executing Court cannot stay the execution proceedings. Thus, it is clear that appellant
always tried to delay the execution of sale deed and no attempts were ever made to
compromise the matter.
14. Under these circumstances, it is clear that solitary intention of appellant in
asking for adjournment on the ground of possibility of compromise is nothing, but a
sheer attempt to waste the valuable time of the Court, specifically when sale deed has
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already been executed through Court. Since appellant did not enter in the witness box
and did not lead any evidence to show that if discretionary decree for specific
performance of contract is granted to the plaintiffs, then defendant is likely to suffer
irreparable loss then contention of counsel for appellant that in case if decree is
executed, then it is likely to cause irreparable loss or damages to appellant thereby
rendering her shelter-less cannot be considered.
15. Since no substantial question of law arises in the present case, accordingly,
this second appeal is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
Rashid
