Raj Kumar v. Piara Lal

Mr.Gaurav Mohunta,Advocate for the appellant Mr.Binderjit Singh, Advocate for the respondent **** RAKESH KUMAR GARG J. This is defendant's second appeal challenging the judgement and decree of the Lower Appellate Court, whereby suit of the plaintiff-respondent for specific performance of the agreement to sell dated

10.01.2004 was decreed and appellant was directed to execute the sale deed. As per the averments, plaintiff-respondent filed the instant suit alleging therein that appellant agreed to sell the shop in dispute for a sum of `.11,01,000/- and received a sum of `.3 lacs as earnest money and signed the agreement dated 10.01.2004 in favour of the plaintiff in the presence of witnesses. The balance amount of `.8,01,000/- was to be paid at the time of execution of the sale deed which was fixed on 10.06.2004. It RSA No.836 of 2009(O & M) 2 was further averred that plaintiff-respondent was always ready and willing to perform his part of the agreement. He also issued a notice dated

29.05.2004 through his counsel calling upon the appellant to execute the sale deed. However, appellant replied the notice on 08.06.2004 and refused to execute the sale deed. Plaintiff-respondent was also present in the Office of Sub-Registrar with the balance sale consideration and the expenses for execution of the sale deed. However, the appellant did not turn up. Hence the suit. In the written statement, appellant denied to have executed the agreement of sale in question. He also denied to have received the earnest money. It was further replied that the agreement was forged and fabricated. In the replication, plaintiff-respondent reiterated his case. From the pleadings of the parties, the following issues were framed:

1. Whether the defendant has received the earnest money and executed the agreement to sell on 10.01.2004?OPP

2. Whether the plaintiff has always been ready and willing and is still ready and willing to perform his part of the agreement?OPP

3. Whether the agreement to sell relied upon by the plaintiff is forged and fabricated and without consideration documents?OPD

4. Whether the plaintiff is entitled to the relief of specific performance, as prayed for?OPP

5. Relief. After hearing learned counsel for the parties and considering the evidence on record, the trial Court decided issues No.1 and 2 in favour of plaintiff-respondent and issue No.3 was held against the appellant. But issue No.4 was decided against the plaintiff-respondent and RSA No.836 of 2009(O & M) 3 it was held that plaintiff-respondent was not entitled to the specific performance of the contract. The alternative relief of recovery of ` 3 lacs along with interest was granted. Consequently, the suit was decreed for ` 3 lacs with interest. Aggrieved from the aforesaid judgement and decree, the plaintiff filed Civil Appeal No.10 of 2008 praying for decree of specific performance of the agreement with costs. Defendant-appellant filed Civil Appeal No.18 of 2008 for setting aside the judgement and decree of the trial Court with a further prayer of dismissal of the suit. Both these appeals were decided vide impugned judgement and decree dated 12.12.2008. It may be relevant to mention that before the Lower Appellate Court, the appellant had not disputed the execution of the agreement of sale in question. However, it was argued that the plaintiff- respondent had also executed an agreement to sell for another property (Ex.D-1) in favour of the appellant which was concealed and, therefore, the trial Court had rightly refused the decree for specific performance of the agreement in question. His further plea before the Lower Appellate Court was that a sum of `. 2 lacs was paid as earnest money with the plaintiff, in pursuance of the agreement Ex.D-1, were to be adjusted and therefore a decree for `.1 lac should have been passed against him. However, the Lower Appellate Court, taking note of the fact that separate litigation regarding the alleged agreement Ex.D-1 allegedly executed by plaintiff- respondent in favour of appellant and another agreement executed between the plaintiff-respondent and Kanta Devi, wife of the appellant was pending between the parties, held that the Court was not to adjust any payment paid or received in the other agreements on the same date between the parties as there was no counter-claim pleaded by the parties in their written statement, thus, Civil Appeal No.18 of 2008 filed by the defendant-appellant against the judgement of the trial Court was RSA No.836 of 2009(O & M) 4 dismissed. The Lower appellate Court, on the basis of evidence on record found that plaintiff-respondent was and still ready and willing to perform his part of the agreement. The Lower Appellate Court also found that no hardship was pleaded by the appellant in the written statement and therefore there was no ground to refuse the specific performance of the agreement to the plaintiff-respondent and thus accepted Civil Appeal No.10 of 2008 filed by the plaintiff-respondent and decreed the suit for specific performance of the agreement in question. Not satisfied with the aforesaid judgement and decrees of the Courts below, defendant-appellant has filed the instant appeal challenging the judgement and decree of the Lower Appellate Court passed in Civil Appeal No.10 of 2008 and has chosen not to file any appeal against the decree passed in Civil Appeal No.18 of 2008. In view of the judgement of this Court in Harjeet Singh & ors.vs.Mehar Singh PLR 2010 Vol.159(52), judgement and decree passed in Civil Appeal No.18 of 2008, which has not been challenged by the appellant, operates as res judicata against the appellant. In view of this fact, the present appeal is not maintainable being barred by principle of res judicata. It may also be noticed that in fact the appellant has not raised any grievance against the execution of the agreement in question and even before the Lower Appellate Court also he had only sought adjustment of ` 2 lacs which was allegedly paid by him to the plaintiff- respondent in furtherance of alleged agreement Ex.D-1 executed by the plaintiff-respondent in his favour, meaning thereby, the appellant has admitted the execution of the agreement in question. The Lower Appellate Court rightly denied that adjustment. Counsel for the appellant was unable to find fault with the findings of the Lower Appellate Court on any ground. In view of the RSA No.836 of 2009(O & M) 5 aforesaid reasons, I find no merit in this appeal. No substantial question of law arises. Dismissed.

11.10.2010 (RAKESH KUMAR GARG) JUDGE