Punjab-Haryana High Court
Om Parkash And Another vs Manjit Singh And Others on 2 December, 2023
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2023:PHHC:156288
RSA-1151-2016 (O&M) 1 2023:PHHC:156288
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-1151-2016 (O&M)
Date of decision: 02.12.2023
Reserved on : 29.11.2023
Om Parkash and another
....Appellants
Versus
Manjit Singh and others
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. Aashish Chopra, Sr. Advocate with
Mr. Gagandeep Singh, Advocate for the appellants
Mr. S.K.Garg Narwana, Sr. Advocate with
Mr. Sanjay Jain, Advocate for the respondents
ANIL KSHETARPAL, J
1. In this Regular Second Appeal, the correctness of the
concurrent findings of fact arrived at by the courts below is assailed
by defendant No. 1. The respondents namely Manjit Singh and
Kulwant Singh (respondents herein) filed a suit for possession by
way of specific performance of the agreement to sell dated 7th June,
2006 with respect to 3 acres of land out of the total land measuring 5
acres, which has been decreed by both the courts below. Defendant
No. 2 and 3 namely Sukhdev Singh and Ramakant have already
executed the sale deed in favour of the respondents (the plaintiff
before the trial court). This appeal, as already noticed that has been
filed by defendant No. 1.
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2. In order to comprehend the issue involved in the
present case, some facts, in brief, are required to be noticed. The
parties will be referred to their rank and status in the trial court. All
the three defendants entered into an agreement to sell with the
plaintiffs on 7th March, 2006 for the sale of 3 acres of land for an
amount of Rs.3,63,00,000/-. On 7th March, 2006, they received
Rs.15,50,000/- as an earnest money. Thereafter, they received Rs.
15,00,000/- on 27th May, 2006 and Rs. 12,00,000/- on 8th June,
2006. This amount of Rs. 12,00,000/- was in addition to the total
agreed sale consideration of Rs. 3,63,00,000/-. As per clause 3 of
the agreement to sell, the parties agreed that before the registration
of the sale deed, the joint land will be partitioned and the first party
namely Om Parkash, Sukhdev Singh and Ramakant will cooperate.
It was also provided that the sale deed would be executed on 7th
May, 2007.
3. The execution of the agreement to sell and receipt of
the amount on various dates as already noticed is not disputed
between the parties. Originally, on 12th June, 2007, the plaintiffs
filed a suit for mandatory injunction directing the defendants to get
the land partitioned in terms of the agreement to sell to perform the
part of the contract as mentioned in the agreement to sell and also
for passing a decree for the permanent injunction restraining the
defendants from alienating the suit property in any manner or issue
any other order or direction as the court may, deem fit and
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appropriate in the particular facts and circumstances of the case. In
the plaint, it was asserted that the plaintiffs always remain ready and
willing to perform their part of the contract and on 7th May, 2007
they attended the office of the Sub-Registrar alongwith the balance
sale consideration. They also got attested affidavit to prove their
readiness. On the very next day, i.e. 8 May, 2007, the plaintiff sent
a notice to the defendants to come and execute the sale deed.
4. The defendants, while contesting the suit, claimed that
the plaintiffs did not come forward to get the sale deed executed on
the given date and hence, the amount of the earnest money stands
forfeited and in fact, the defendants remained present in the office of
the Sub-Registrar and have sent a reply to the notice given to them
on 10th May, 2007.
5. During the pendency of the suit, an application under
Order VII Rule 11 of the Code of Civil Procedure, 1908 was filed by
the defendants, which was disposed of on 9th August, 2012 while
observing that the plaintiffs can apply for amendment of the plaint
in order to seek the relief of specific performance. Pursuant thereto,
amended plaint was filed by the plaintiffs while seeking the relief of
specific performance of the agreement to sell. As already noticed,
both the Courts, on appreciation of evidence, have concurrently
decreed the suit.
6. Heard the learned senior counsels representing the
parties at length and with their able assistance perused the paper
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book alongwith the requisitioned record, which is available in the
digital form.
7. Learned senior counsel representing the appellant
submits that the limitation for filing the suit for specific
performance of the agreement to sell is three years from the agreed
date for execution and registration of the sale deed. He submits that
as per Article 54 of Limitation Act, 1963, the period of limitation
will begin to run from 7th May, 2007 onwards and will come to an
end on 6th May, 2010. Whereas the amended plaint was filed in the
year 2012. He further submits that vide the notice dated 10th May,
2007 the earnest money was forfeited and therefore, the plaintiffs
were required to file the suit within three years from 10th May,
2007. While relying upon the judgment passed in Prithi Pal Singh
and another vs. Amrik Singh and others 2013 (9) SCC 576 and
T.L.Muddukrishana vs. Smt. Lalitha Ramchandra Rao 1997
AIR (SC) 772, he submits that the amended plaint will not relate
back to the date of the filing of the suit. He further submits that the
plaintiffs have failed to prove their readiness and willingness to
perform their part of the contract as they have failed to prove their
resources to pay the sale consideration.
8. On the other hand, the learned senior counsel
representing the respondents contends that the court while taking on
record the amended plaint did not order that it will be deemed to
have been instituted on the day the amended plaint was taken on
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record. He submits that in the absence thereof, the amended plaint
will relate back to the date of institution of the suit, which is within
one month from 7th May, 2005, the agreed date. He further submits
that the plaintiffs were always ready and willing to perform their
part of the contract and in the amended plaint, the plaintiffs have
asserted that they are prepared and have resources to perform their
part of the contract. He also submits that the plaintiff Kulwant Singh
appeared in evidence. The defendants did not challenge the
deposition of Kulwant Singh on the issue of readiness and
willingness.
9. This Court has considered the submissions and
analysed the arguments of the learned senior counsels representing
the parties.
10. On a careful perusal of the agreement to sell, it
becomes evident that in clause 3 of the agreement to sell, it has been
provided that before registration of the sale deed, the partition will
take place and the first party will cooperate. However, in clause 6, it
has been written that the sale deed would be executed on 7th May,
2007. It is the case of the plaintiffs that the defendants were to file
an application for partition of the joint property and the plaintiffs
could not file the application for partition as they were not co-
owners/co-sharers therein. On 8th May, 2007 the plaintiffs sent a
notice calling upon the defendants to get the land partitioned from
the competent authorities and to execute the sale deed. While
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replying, the defendants claim that they were ready and willing to
perform their part of the contract and the plaintiffs were not ready
and willing to perform their part.
11. On a careful reading of the unamended plaint, it is
evident that the plaintiffs have positively asserted that they are ready
and willing to perform their part of the contract and they attended
the office of the Sub-Registrar on 07.05.2007 alongwith requisite
payments as well as other charges required for registration of the
sale deed. It was also asserted by the plaintiffs that the defendants
should get the property partitioned and perform their part of the
contract. There is a substance in the argument of the plaintiffs that
the proceedings for partition could not be initiated by them. It is also
evident that an undivided share in the joint property can be sold. In
the circumstances, clause 3 of the agreement to sell is not of much
importance as far as the relief of specific performance is concerned.
12. This Court has carefully read the judgment passed by
the Supreme Court in Prithi Pal Singh's case (supra). In para 11,
the Supreme Court culled out the ratio of various judgments on the
issue, which reads as under:-
"10. From the ratio of the aforesaid
judgments, following points emerge:
(a) merits of the averments sought to be
incorporated by way of amendment are not
to be judged at the stage of allowing the
prayer for amendment;
(b) the dominant purpose of the
amendment is to minimise the litigation;
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(c) the amendment once allowed and
incorporated relates back to the date of the
initial institution of the suit;
(d) the Court, however, in appropriate
case may restrict the application of
doctrine of relation back and permit the
application of the amendment from the
date the amendment is allowed.
13. In this case, the Court never restricted the application of
doctrine of relating back. Hence, the aforesaid judgment does not
help the appellants. Even the judgment passed in T.L.
Muddukrishana's case (supra) is of no help to the appellants as in
this case there was a stipulation in the agreement to sell for the
partition of the joint property. In these circumstances, originally the
plaintiffs filed a suit for grant of decree of mandatory injunction.
The facts of the judgment passed in T.L.Muddukrishana's case
(supra) are different.
14. Once it is held that the amended plaint would relate
back to the date of filing of the suit, the date the suit filed by the
plaintiffs is within the period of limitation. Hence, there is no
substance in the first argument of the learned counsel representing
the appellants.
15. The next argument of the learned counsel representing
the appellants also does not have substance as the plaintiffs, while
filing the suit, alleged that they are ready and willing to perform
their part of the contract. In order to prove that fact they have
examined one of the plaintiffs namely Kulwant Singh and other
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witnesses. They also produced copies of the pay orders Ex.P-6 to P-
8. Moreover, a perusal of the judgments passed by the First
Appellate Court, it is evident that the appellants did not challenge
the judgment of the trial court on the ground that the plaintiffs have
failed to prove their readiness and willingness.
16. Keeping in view the aforesaid facts and discussion, no
ground to interfere is made out.
17. Hence, dismissed.
18. All the pending miscellaneous applications, if any, are
also disposed of.
02.12.2023 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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