Fazar Khan vs Aatma Singh
2022 Latest Caselaw 3394 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

             S.B. Civil Second Appeal No. 48/2013

Fazar Khan
                                                                  ----Appellant
                                   Versus
Aatma Singh
                                                                ----Respondent

For Appellant(s)         :     Mr. Rahul Tiwari
For Respondent(s)        :     Ms. Shweta Soni



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                    Order

28/04/2022

Learned counsel for appellant-plaintiff submits that the Civil

Suit No.15/2006 for specific performance was decreed vide

judgment dated 29.05.2012 by learned Civil Judge (Senior

Division), Kishangarh Bas, District Alwar.

Respondent-defendant has preferred first appeal

thereagainst. In the first appeal, notices were served upon

appellant, however, the first appellate court decided the first

appeal in ex parte and reversed the decree.

Learned counsel for appellant submits that the first appellate

court extended weightage to the mis-mentioning of date of

agreement and only on this count has reversed the findings of the

trial court. In fact, the agreement in question was executed on

28.10.2004, which is available on record as Exhibit-1 but

inadvertently the date of agreement was mentioned in the plaint

as 28.11.2004. Although, reasonings assigned by first appellate

court to reverse the findings in relation to the issue No.1 only on

account of wrong mentioning of the date of agreement may not be

(2 of 3) [CSA-48/2013]

appreciated, however, as far as specific relief of the agreement

dated 28.10.2004 (Exhibit-1) is concerned, considering the nature

of land in question as gair khatedari and the terms of agreement,

this Court is not inclined to interfere in the net result of the first

appeal about dismissing the appellant's suit for specific

performance and to this extent the impugned judgment and

decree dated 10.10.2012 requires no interference.

Learned counsel for appellant, in alternative, has argued that

in the written statement of the defendant more particularly in para

No.3 of the special pleas, it is admitted that the defendant

received Rs.15,000/- from plaintiff and instead of writing a

document in relation to such credited amount, the plaintiff has got

executed an agreement of sale in question.

Considering such admissions of defendant in his written

statement, counsel for appellant submits that at least the

agreement in question if not allowed to specifically perform, it

may be treated as a receipt for Rs.15,000/- and since the suit for

recovery of Rs.15,000/- is also within limitation, hence the decree

for refund of amount of Rs.15,000/- be passed in favour of

plaintiff.

Learned counsel for appellant submits that the first appellate

court has committed jurisdictional error in no pondering over such

aspects. Had appellant been given an opportunity before the first

appellate court, this point could have been raised by him.

Having heard learned counsel for appellant, this Court finds

that to the aforesaid extent this appeal deserves to be admitted,

and the same is admitted on following substantial question of

law:-

(3 of 3) [CSA-48/2013]

"Whether the appellant-plaintiff is entitled for the

alternative relief of recovery of the amount of

Rs.15,000/- with simple interest from the defendant,

in view of admission of defendant in his written

statement or not?"

Record of both courts below has already been received.

Since, the second appeal has been admitted only confining to

the issue of recovery of Rs.15,000/-, there is no reason to pass

any interim injunction in relation to land in question.

Accordingly, the stay application stands dismissed.

(SUDESH BANSAL),J

SACHIN/69

Powered by TCPDF (www.tcpdf.org)