Tarsem Kumar & Ors. v. Satish Kumar & Ors.

Present : Mr. Amit Jain, Advocate for the appellants. Mr. Puneet Bali, Advocate for the respondents. ****

1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the Digest? AJAY TEWARI, J. (ORAL) CM No.12391-C of 2008 For the reasons mentioned in the application, same is allowed. Registry is directed to delete the name of the respondent No.9 – Sham Lal from the array of parties since his estate is duly represented by his son, who is already on record and make necessary corrections in the memo of parties. CM stands disposed of. RSA No.1594 of 2008 This appeal has been filed against the concurrent judgments of the courts below decreeing the suit of the respondents for specific performance of an agreement to sell dated 03.07.1993 to the extent of the share of the appellants. Admittedly the RSA No.1594 of 2008 -2- appellants entered into agreement to sell the property in dispute to the respondent. However, while executing the agreement they also included some property which was owned by their brother. Since the sale deed was not executed, suit was filed. It is argued that the respondent No.1 was ready to perform his part of the sale deed while appellants were avoiding to execute the sale deed even though they stated in their written statement that they were ready to execute the sale deed qua their share of property. Learned counsel for the appellants argued that in fact it was the respondent who was not interested in getting the sale deed executed and further that the respondent had made an unauthorised addition in the agreement to sell - to the effect that the possession had been handed over – and that on this ground alone the respondent was disentitled from seeking the discretionary relief of specific performance. The suit was decreed in favour of the plaintiff- respondent. After the appeal was filed, the brother of the appellant withdrew his appeal after taking due money from the respondent. Subsequently, it has transpired that the third brother of the appellant (on whose behalf unauthorised agreement to sell had been made by the appellant) also sold his share to the respondent No.1. During the appeal it also transpired that pursuant to the trial court decree, the respondent had deposited the remaining sale consideration before the trial court and the same has been withdrawn by the appellant without lodging any protest. The ld. Lower appellate court noticing all these facts, (particularly as regards the allegation of disentitlement of the RSA No.1594 of 2008 -3- appellant to seek specific performance) held that the present was a case where both parties had tried to act extra-smart, since the appellant had also made an agreement to sell the property which was not owned by him. Therefore, on a conspectus of all the facts, the ld. Lower appellate court dismissed the appeal. Following questions have been proposed: a) Whether in the facts and circumstances of the instant case the alleged agreement having been tempered with by the plaintiff/respondent the suit filed by the plaintiff/respondent for specific performance could be decreed? b) Whether in the facts and circumstances of the instant case, the plaintiff/respondent having failed to prove his readiness and willingness or any acquiescence on the part of the predecessor-in-interest of the appellant, the suit filed by the plaintiff/respondent could be decreed? With regard to question No.(a), I am in agreement with the findings of the Lower Appellate Court that in a case where both the parties are guilty of smart practice, it cannot be urged by one party that the other party is not entitled to sue for specific performance Learned counsel for the appellant did not argue question no.(b) but argued that the finding that the appellant had disentitled himself from prosecuting the appeal by withdrawing the money, is incorrect. He has stated that originally when the trial court had decreed the suit, the jurisdiction to hear regular first appeal was in this court and the appellant had filed RFA No.3228 of RSA No.1594 of 2008 -4-

1999. During the pendency of that appeal, the fact of withdrawal of consideration amount had been brought out and even after noticing that this court had only granted conditional permission to make construction and further held that in the event of reversal of judgment the respondent would have to demolish the construction at his own cost. According to the learned counsel for the appellant, this order clearly and categorically washes away the effect of unconditional withdrawal of money by the appellant. As a corollary to this argument, learned counsel for the appellant has further argued that the ld. Lower Appellate Court was enjoined to give his decision as on the date of filing the suit and therefore, subsequent events like unconditional withdrawal of money could have no effect on the merits of the case. In my opinion, the most important fact is the clear and unequivocal admission by the appellant in his written statement that he was still ready and willing to sell his share of property and that would be the closest contemporaneous conduct which would determine the fate of this case. Obviously now, when the prices have gone up, the appellant is raising all these arguments, otherwise when he filed his written statement (within a short time of filing of the suit) he was ready and willing to perform his part of the contract. In these circumstances, the questions proposed do not arise. As regards the argument about the conditional order passed by this Court in RFA No.3228 of 1999, that order was an interim order and had been passed in view of the dispute raised on facts with regard to the entitlement of the respondent to claim RSA No.1594 of 2008 -5- specific performance. That entitlement having been established, the said order would not have the effect of condoning the unconditional withdrawal of the money by the appellant. Thus, holding the proposed questions against the appellant, this appeal is dismissed. February 11, 2010 (AJAY TEWARI) JUDGE