Full Text
Date of Decision: 5th January, 2016 RFA No.279/2001
JAGTAR SINGH & ORS. ..... Appellants
Through: Mr. Manish Kohli and Mr. Pradeep Shukla, Advs.
Through: None.
JUDGMENT
1. This first appeal under Section 96 of the Code of Civil Procedure (CPC), 1908 impugns the ex parte judgment and decree dated 12th April, 2001 of the Court of Shri Prithvi Raj, Additional District Judge (ADJ), Delhi of dismissal of Suit No.170/2000 filed by the appellant on 21st December, 2000 for specific performance of an Agreement of Sale of immovable property.
2. The appeal was admitted for hearing and while issuing notice, vide ex parte ad interim order dated 24th July, 2001 the respondent was restrained from alienating or transferring in any manner or creating any third party interest in the suit property. The respondent failed to appear despite service of notice of the appeal also and was vide order dated 6th March, 2002 proceeded against ex parte and the interim order was confirmed. Both, the appellant as 2016:DHC:58 well as the respondent died during the pendency of appeal and upon notice of the application for substitution being issued to the legal representatives of the respondent, Advocate for some of the legal representatives of the respondent appeared and the legal representatives of the appellant as well as respondent were ordered to be substituted. However, the Advocate who had appeared for some of the legal representatives of the respondent also did not appear regularly and though on the last three dates either one of the legal representatives of the respondent appeared in person or an Advocate appeared for some of the legal representatives but today again none has appeared for the legal representatives of the respondent. The appeal being old, it is not deemed appropriate to defer the hearing any further awaiting the legal representatives of the respondent. The counsel for the appellant has been heard and the Trial Court Record requisitioned in this Court has been perused.
3. The appellant instituted the suit from which this appeal arises pleading:-
(i) that the respondent/defendant representing himself to be the exclusive owner of Shop No.B-189, area measuring 70.60 sq. yds. situated at New Subzi Mandi, Azadpur, Delhi – 110 033 with leasehold rights in the land underneath the same approached the appellant/plaintiff for sale of first floor and above portion (whatever can be legally constructed) of the said shop for a total sale consideration of Rs.[2] lacs;
(ii) an Agreement to Sell dated 17th June, 1998 was executed;
(iii) that the entire sale consideration of Rs.[2] lacs was paid by the appellant/plaintiff to the respondent/defendant in cash and receipt whereof was confirmed in the Agreement to Sell;
(iv) that the respondent/defendant in part performance of the
Agreement handed over actual physical peaceful and vacant possession of the first floor and above portion of the shop to the appellant/plaintiff and also agreed that the appellant/plaintiff would be entitled to raise construction over and above the first floor which was unbuilt and the respondent/defendant would not raise any hindrance therein;
(v) that the respondent/defendant also agreed to get all requisite permissions/clearances to execute the Sale Deed;
(vi) though the appellant/plaintiff called upon the respondent/defendant to allow the appellant/plaintiff to raise construction over and above the first floor and to complete the transaction but the respondent/defendant avoided;
(vii) that in September, 1999 the respondent/defendant sold/alienated the basement floor of the said property to the appellant/plaintiff for a total sale consideration of Rs.[6] lacs and also handed over actual physical peaceful and vacant possession of the same to the appellant/plaintiff and executed various documents in that regard in favour of the appellant/plaintiff on 21st September, 1999 and got them registered on 22nd September, 1999;
(viii) on 25th September, 1999 the son of the respondent/defendant Shri
Raj Kumar instituted a suit against the appellant/plaintiff and the respondent/defendant for injunction to restrain them taking forcible possession of the said basement from Shri Raj Kumar;
(ix) a Court Commissioner was appointed in the said proceedings who submitted a Report, of the appellant/plaintiff being in possession of the basement;
(x) Shri Raj Kumar son of the respondent/defendant thereafter withdrew the suit which was dismissed as withdrawn on 7th August, 2000;
(xi) that the aforesaid Shri Raj Kumar on 16th December, 2000 filed another suit against the appellant/plaintiff for possession of the said basement; and,
(xii) that on 18th December, 2000 the appellant/plaintiff finally called upon the respondent/defendant to comply with his obligations under the Agreement to Sell dated 17th June, 1998 and upon refusal of the respondent/defendant the present suit was filed on 21st December, 2000 for specific performance of the Agreement to Sell dated 17th June, 1998 directing the respondent/defendant to execute the Sale Deed in favour of the appellant/plaintiff after obtaining all the requisite permissions and for permanent injunction restraining respondent/defendant from creating third party rights in the property agreed to be sold to the appellant/plaintiff.
4. The respondent/defendant though initially appeared in the suit but did not file any written statement and was proceeded against ex parte; he moved an application for setting aside of the order proceeding ex parte against him but thereafter again stopped appearing and the ex parte evidence of the appellant/plaintiff was recorded.
5. The learned ADJ has vide impugned judgment and decree dismissed the suit observing/finding/holding:- (a) that though under the Agreement to Sell the respondent/defendant was required to apply for and obtain all sale permissions/clearances for transfer of the property agreed to be sold in favour of the appellant/plaintiff but the appellant/plaintiff did not call upon the respondent/defendant to comply therewith; (b) that the perpetual lease of the land underneath the shop was granted by Delhi Development Authority (DDA) in favour of the respondent/defendant for use of the respondent/defendant for fruits and vegetables business;
(c) that the appellant/plaintiff had failed to prove that the respondent/defendant had on the land so leased to him raised structure;
(d) that the perpetual Lease Deed of the land underneath the property also required a notice of any transfer/sale/sub-lease to be given to the DDA within three months of transfer; no such notice also had been given; (e) that in the Agreement to Sell of which specific performance was sought the parties had not made the time of the essence and the appellant/plaintiff had failed to prove that he had at any time called upon the respondent/defendant to complete the transaction; (f) no cause of action had arisen in favour of the appellant/plaintiff; and, (g) that the execution of the Sale Deed in pursuance to the Agreement to Sell was dependent upon various permissions/clearances being received and which had admittedly not been received.
6. The counsel for the appellant/plaintiff has argued that the learned ADJ has erred in presuming that before the Court can order specific performance permissions if any required for execution of the Sale Deed should be in existence. Reliance is placed on, (i) Vishwa Nath Sharma Vs. Shyam Shanker Goela (2007) 10 SCC 595; (ii) Raghunath Rai Vs. Jageshwar Prashad Sharma 1999 V AD (Delhi) 254; (iii) Ajit Prashad Jain Vs. N.K. Widhani AIR 1990 Delhi 42; (iv) Rojasara Ramjibhai Dahyabhai Vs. Jani Narottamdas Lallubhai AIR 1986 SC 1912; (v) Mrs. Chandnee Widya Vati Madden Vs. Dr. C.L. Katial AIR 1964 SC 978; and, (vi) Prakash Chandra Vs. Angadlal AIR 1979 SC 1241 to contend that the proper course is to decree specific performance by directing the respondent/defendant to apply for and obtain for permission and by making the execution of the Sale Deed subject to such permissions being granted.
7. The counsel for the appellant/plaintiff is correct to the aforesaid extent and the impugned judgment is indeed faulty on this ground.
8. However on the basis of pleadings and the evidence I am unable to exercise the discretion implicit in the grant of relief of specific performance of a Agreement of Sale of immovable property in favour of the appellant/plaintiff for the following reasons:-
appellant/plaintiff to construct within three months and that after that he was not entitled to construct the first floor inasmuch as after three months he were not entitled to put ‘malba’ in front and backside of the property and without which no construction was possible.
I. This is more so as the transaction of September, 1999 is not only by execution of Agreement to Sell but also by execution and registration by the respondent/defendant of General Power of Attorney, Special Power of Attorney, Will etc. It is inexplicable why the appellant/plaintiff did not get General Power of Attorney, Special Power of Attorney, Will executed from the respondent/defendant with respect to the property subject matter of Agreement to Sell dated 17th June, 1998 also. No explanation whatsoever is forthcoming.
Sell dated 17th June, 1998 of which specific performance is claimed with the sale of basement with Rs.[2] lacs paid for the first floor and above being adjusted against the sale consideration of basement cannot be ruled out. The appellant/plaintiff has not proved payment of Rs.[2] lacs in cash for first floor and above and separate payment of Rs.[2] lacs in cash for the basement. Interestingly the purported witnesses to the Agreement to Sell of which specific performance is sought and to the Will executed with respect to the basement are the same.
2000 when the suit from which this appeal arises was instituted is fatal to the claim of the appellant/plaintiff for specific performance especially when the appellant/plaintiff in September, 1999 had the occasion to better his rights under the Agreement to Sell dated 17th June, 1998.
2000. There are a large number of seekers of the limited shops/space available in Subzi Mandi and only those who fulfill the eligibility conditions are entitled to shops therein. The counsel for the appellant/plaintiff though on enquiry states that the appellant/plaintiff is in the same trade but fairly admits that there is no inkling to the said effect in the documents. Rather Clause 17 of the Agreement of which specific performance is claimed provides that the appellant/plaintiff will get 2 APMC licences in his name from the APMC Authority. The appellant/plaintiff has neither pleaded nor proved having obtained such licenses. The same also negate the readiness and willingness of the appellant/plaintiff.
9. Thus, though for reasons different from that given in the impugned judgment, I do not find the appellant/plaintiff entitled to the relief of specific performance. Dismissed. No costs. Decree sheet be prepared.