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Sobhag Mal JaIn S/O Shri Chhigan Lal Vs. Mool Chand Vaish S/O Shri Bhikaridas - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular First Appeal No. 9 of 1983
Judge
Reported in1985WLN(UC)212
AppellantSobhag Mal JaIn S/O Shri Chhigan Lal
RespondentMool Chand Vaish S/O Shri Bhikaridas
DispositionAppeal dismissed
Cases Referred and Pyare Lal v. Nathu Lal
Excerpt:
specific performance - sale deed--appellant applied and obtained no objection certificate but did not get sale deed registered--district judge granted decree for specific performance instead of following condition no. 5 of agreement--held, discretion was rightly exercised by district judge;the appellant has not denied in his statement that he did not apply and obtain no objection certificate or that he had not executed the sale deed on 1-3-1981 it appears that thereafter the appellant changed his mind and, therefore, he did not get the sale deed registered.;since the learned district has granted a decree for specific performance instead of following the condition no. 5 of the agreement dated 31-8-1981 relying on air 1980 raj. 212 and air 1973 sc 2457, i am not inclined to interfere with..........a sum of rs. 90,000/-. a sum of rs, 20,000/-was paid to the appellant at the time of agreement to sale deed dated 31-8-1980 and the balance sum of rs. 70,000/- was payable before the registrar at the time of registration of the document. the appellant obtained a no objection certificate from the competent authority under section 27 of the urban land (ceiling and regulations) act, 1976. but since the plot was not in actual physical possession of the appellant, it was agreed on 8-12-1980 that he will hand over vacant possession of the plot within one month, but the possession of the plot was not handed over till 31st january, 1980 and, therefore, the respondent gave a notice dated 5-2-1981 informing that he has purchased the stamps for the sale deed and that the appellant should send a.....
Judgment:

Surekdra Nath Bhargava, J.

1. This is appeal against the Judgment and decree passed by the District Judge, Jaipur City, Jaipur dated 6-11-1982 decreeing the Civil Suit No. 109/81 for specific performance.

2. The plaintiff-respondent Mool Chand filed a suit on 7-3-1981 for specific performance of a contract dated 31st August, 1980 for sale of a plot of land C-41, Tilak Nagar, Moti Doongari Scheme, Jaipur. According to the original plaint, it was settled between the parties that the appellant will sale the plot to the respondent for a sum of Rs. 90,000/-. A sum of Rs, 20,000/-was paid to the appellant at the time of agreement to sale deed dated 31-8-1980 and the balance sum of Rs. 70,000/- was payable before the Registrar at the time of registration of the document. The appellant obtained a no objection certificate from the competent authority under Section 27 of the Urban Land (Ceiling and Regulations) Act, 1976. But since the plot was not in actual physical possession of the appellant, it was agreed on 8-12-1980 that he will hand over vacant possession of the plot within one month, but the possession of the plot was not handed over till 31st January, 1980 and, therefore, the respondent gave a notice dated 5-2-1981 informing that he has purchased the stamps for the sale deed and that the appellant should send a copy of the draft sale deed, which was sent along with an application for getting No Objection Certificate. The appellant gave the copy of the draft sale deed on 7-2-1981 and the said deed was duly typed on the stamp papers and was also signed on 1-3-1981, but the appellant did not get the same registered and hence the present suit was filed.

2. An ex-parte order was passed on 14-4-1981 against the appellant and ultimately an ex-parte decree was passed on 18-5-1981. On an application by the appellant, the ex-parte decree was set aside and the appellant filed the written statement on 3-10-1981 stating that as per the agreement dated 31-8-1980 it was agreed between the parties that the sale price of the plot will be Rs. 1,25,000/- and not Rs. 90,000/- and since the respondent was not ready and willing to pay agreed sale price, the sale deed could not be got registered and hence the respondent was not ready and willing that suit should not be decreed. A rejoinder was also filed by the respondent on 31-10-1981, wherein it was clarified that a sum of Rs. 1,25,000/- were agreed provided the appellant hands over vacant possession of the plot in dispute and since it was not possible for the appellant to hand over the vacant possession it was agreed that he may pay Rs. 90,000/- in all and if vacant possession is handed over the respondent will be liable to pay Rs. 35,000/- also and, therefore, a cheque of Rs. 35,000/- was handed over the appellant and a sale deed was executed for a sum of Rs. 90,000/-. But since the appellant was not in a position to hand over vacant possession, the cheque of Rs. 35,000/- could not be encashed.

3. Issues were framed on 28-11-1981, which are as under :... (In Hindi)

The plaintiff respondent examined himself on 10-9-1981 & 21-1-1982 & closed his evidence. Whereas, the defendant-appellant examined himself on 21-1-1982 and the case was fixed for arguments. Thereafter the respondent moved an application under Order 6, Rule 17 for amendment of the plaint on 27-7-1982, to which a reply was filed by the appellant on 11-8-1982 and the amendment was allowed by the trial court by its order dated 16-9-1982 and the amended plaint was filed and thereafter amended written statement was also filed. The parties did not lead any further evidence after the amendment and after hearing the arguments the suit was decreed by the impugned judgment dated 6-11-1982.

4. Learned counsel for the appellant has vehemently argued that the decree for specific performance cannot be granted as the plaintiff respondent was never ready and willing to perform his part as agreed in the agreement for sale dated 31-8-1980. He has further submitted that the plaintiff did not come with clean hands and his allegations in the plaint are not in confirmity with the agreement for sale for which specific performance is prayed. His evidence is against the facts pleaded in the plaint and the amendment of the plaint was made at very belated stage. He has placed reliance on Gyan Chand v. Daulat Ram 1975 RLW 301, K. Venkata Subaiya v. K. Venkateshwar : AIR1971AP279 , Raj Rani Bhasin v. Kartar Singh : AIR1975Delhi137 , Vishwanath Mehta v. Janki Devi : AIR1978Pat190 and Pyare Lal v. Nathu Lal AIR 1979 All. 1018.

5. Learned counsel for the appellant has further drawn my attention to Clause (5) of the agreement dated 31-8-1980, which provides that in case the appellant does not get the sale deed registered, he will be liable to pay a sum of Rs. 20,000/- as damages and, therefore, a decree for specific performance should not have been granted in favour of the respondent.

6. On the other hand learned counsel for the respondent has supported the judgment of learned District Judge, Jaipur and has submitted that no interference should be made in this appeal and the decision of the learned District Judge in granting decree for specific performance.

7. I have gone through the whole record of case as also the authorities cited by learned counsel for the appellant. It is true that in the original agreement dated 31-1-1980, it is mentioned that the sale price will be Rs. 1,25,000/-, but at the same time it is also mentioned that vacant possession of the plot shall be handed over to the plaintiff. It appears that when the appellant was unable to hand over the vacant possession of the plot to the respondent, the said agreement was modified to the extent that the respondent will pay a sum of Rs. 90,000/- in case the vacant possession is not handed over to him and, therefore, a cheque of sum of Rs. 35,000/- was paid to the appellant vide Ex. 6, wherein it has been specifically mentioned that because it is not possible to hand over the vacant possession to the respondent, the appellant has received a cheque for a sum of Rs. 35,000/-, which will be handed over to the respondent as soon as he gets vacant possession and the respondent will pay cash of Rs. 35,000/- to the appellant and in case vacant possession is not handed over, the respondent will not be entitled to get the sum of Rs. 35,000/-. In pursuance to this changed agreement the appellant moved an application before the Competent Officer under Section 27 Urban Land (Ceilling and Regulations) Act, 1976 and obtained no objection certificate (Ex. 2). Along with the application the applicant had to file a copy of the proposed sale deed, which is also returned along with no objection certificate and since it was not possible for the appellant he should hand over vacant possession. He even executed the sale deed on the stamp paper on 1-3-1981 wherein it has been specifically mentioned that the appellant has received a sum of Rs. 20,000/- on 31-8-1980 and he shall be receiving a sum of Rs. 70,000/- at the time of registration. The said sale deed was duly executed by the appellant on 1-3-1981. The appellant has not denied in his statement that he did not apply and obtain no objection certificate or that he 'had not executed the sale deed on 1-3-1981. It appears that thereafter the appellant changed his mind and, therefore, he did not get the sale deed registered and consequently the respondent had to file the present suit.

8. More over, in my view the amendment was rightly allowed. The order allowing the amendment was not challenged by the appellant before this court either in revision or in this appeal and, therefore, I have to take into consideration only the amended plaint.

9. I have gone through the authorities cited by learned counsel for the appellant and in my view the facts of the present case are typical and absolutely different and distinguishable from those of the authorities cited at the bar and, therefore, these authorities do not help learned counsel for the appellant. Learned District Judge has written a very good judgment and has dealt all the aspects in great detail and I am in full agreement with the observations and conclusions arrived therein and, therefore, I am not discussing the whole matter in detail and since the learned Dist. Judge has granted a decree for specific performance instead of following the condition No. 5 of the agreement dated 31-8-1981 relying on and : [1974]1SCR312 , I am not inclined to interefere with the discretion, which was in my view rightly exercised by the learned District Judge.

10. In view of these discussions, I do not find any force in this appeal. The appeal is, therefore, dismissed with costs.


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