Shri Vinod Gautam v. Shri Amir Chand

1. Exemption allowed subject to just exceptions. C.M. stands disposed of. C.M. No.8949/2014 (for Preponement)

2. Dismissed as infructuous. + C. M. (M) No.463/2014 and C.M. No.8056/2014 (stay)

3. This petition under Article 227 of the Constitution of India impugns the order of the trial court dated 7.3.2014, by which the trial court 2014:DHC:4268 has dismissed an application filed by the petitioner/defendant for dismissing the suit as compromised under Order XXII Rule 3 of Code of Civil Procedure, 1908 (CPC).

4. This matter came up for hearing on 7.5.2014 when at the request of the petitioner, the case was adjourned on account of a bereavement in the family of the counsel for the petitioner. The matter was then listed on 21.5.2014 when once again at the request of the petitioner, the case was adjourned. Today, once again an adjournment is asked for and which in the opinion of this Court is not justified and hence declined. Thereafter, counsel seeks a pass over at the convenience of the main counsel for the petitioner for fixing the case at a specific time post lunch, because the counsel has chosen to go, as per the counsel presently appearing in the Court, to the Gurgaon Courts. Such a practice cannot be accepted otherwise every counsel will make a request for putting up the case at his own convenient time and if which is done, Courts will not be able to function.

5. The application under Order XXIII Rule 3 CPC was filed by the petitioner/defendant in a suit for possession, mesne profits, injunction by the respondent/plaintiff/landlord against the petitioner/defendant/tenant.

6. The case of the petitioner/defendant was that the parties had entered into an agreement to sell on 19.7.2013, and consequently the wife of the petitioner/defendant having agreed to purchase the suit property and the subject suit for possession should hence be dismissed as compromised.

7. By the impugned order, the trial court has dismissed the application by giving the following conclusions:-

(i) The agreement to sell which is relied upon by the petitioner/defendant is dated 19.7.2013 i.e after amendment of Section 53A of the Transfer of Property Act, 1882 by Act 48 of 2001 w.e.f 24.9.2001 and since the agreement is not stamped and registered, the same cannot confer benefit under Section 53A of the Transfer of Property Act, 1882.

(ii) The agreement to sell even if can be looked into on its own will not create a right because the agreement to sell is not a sale deed under Section 54 of the Transfer of Property Act, 1882 and if the petitioner has any right, he had to file a suit for specific performance which has not been filed.

8. To the aforesaid observations of the trial court, this Court would like to add the fact that the agreement which is relied upon by the petitioner/defendant dated 19.7.2013 specifically states that the petitioner/defendant had to make the payment of a sum of Rs.71 lacs by 30.9.2013 but there is nothing found on the record that the petitioner/defendant had performed his part of the contract and offered to pay a sum of Rs.71 lacs by 30.9.2013 and which in any case will be examined in a specific performance suit. At this stage, petitioner/defendant cannot be said to be the owner of the suit property merely because there is an agreement to sell executed in favour of the petitioner/defendant. It is also required to be noted that para 3 of the agreement to sell specifically makes it clear that the subject suit will be withdrawn only on execution of the sale deed, and admittedly since the sale deed is not executed, the subject application directing the suit to be dismissed was misconceived.

9. In view of the above, I do not find any merit in the petition, and the same is therefore dismissed, leaving the parties to bear their own costs.

AUGUST 29, 2014 VALMIKI J. MEHTA, J Ne