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2006 33 1501 24005 Judgement 18-Sep-2020
2006 33 1501 24005 Judgement 18-Sep-2020
REPORTABLE
Versus
WITH
JUDGMENT
Indira Banerjee, J.
1994, 894 of 1994 and 1785 of 1994 and inter alia confirming the
Digitally signed by
Nidhi Ahuja
Date: 2020.09.18
15:38:34 IST
Reason:
No. 91 of 1993 and the decree of dismissal by the Trial Court of the
August, 1982.
3. After about ten days, the Vendor allegedly entered into an oral
Reddy, for sale of 100 sq. yards out of the suit land in his favour, for a
100 sq. yards to Pratap Reddy on the date of the oral agreement
itself.
between the Vendor and Pratap Reddy was allegedly reduced into
Vendor and her husband allegedly agreed to execute the sale deed
with the contesting respondent in Civil Appeal No. 3574 of 2009, Smt
20th January, 1984. The Vendor and her husband Darshan Reddy
contend that the Vendor had also specifically informed the Vendee
that the Vendor had received the sale consideration for 100 sq. yards
from Pratap Reddy, and had delivered possession of 100 sq. yards of
land to him.
with Pratap Reddy in the sale agreement between the Vendor and the
Vendee. However, the Vendee assured the Vendor that she would get
knew Pratap Reddy well and had already spoken to Pratap Reddy.
there was no need for the Vendor to get any clearance from Pratap
Reddy as the Vendee and her husband had been assured by Pratap
of the suit land in favour of Pratap Reddy. The Vendor and her
4
husband Darshan Reddy, as also Pratap Reddy, have alleged that the
21st March, 1984 was conditional upon clearance from Pratap Reddy
in view of the earlier agreement of the Vendor with Pratap Reddy for
sale of 100 sq. yards of the suit. The purported notice, if any, was
alleging that the original sale deed of the suit land in favour of the
Vendor in respect of the suit land had been stolen from his residence,
10. By a letter dated 28th June, 1984, the Vendee replied to the
notice, contending that the document had been handed over by the
agreement of sale dated 21st March, 1984. In the said suit, the
order dated 5th April, 1989 was passed whereby Pratap Reddy was
restraining the Vendee from interfering with his possession over 100
12. In the suit filed by Pratap Reddy, it was alleged that he was
not aware of any agreement of sale between the Vendor and the
13. It is the case of Pratap Reddy, that even if the Vendee had
entered into any agreement as alleged with the Vendor, there could
be no question of sale of 100 sq. yards of the suit land earlier agreed
Reddy with regard to 100 sq. yards was null and void. The Vendor
15. On or about 19th July, 1989, the Vendor and her husband
suit for specific performance. The three suits have, from time to
16. The suit for specific performance, which had been transferred
17. The Trial Court framed the following issues in the suit being
Pratap Reddy, was a bona fide purchaser of 100 square yards of the
suit land.
19. In Original Suit No.92 of 1993, being the suit for declaration,
filed by the Vendee against Pratap Reddy, the following issues were
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framed:
the learned District Judge, Rangareddy disposed of all the three suits.
The suit for specific performance was allowed, in part, holding that
respect of the remaining 200 sq. yards of the suit land. The Vendee’s
suit for declaration against Pratap Reddy was dismissed for non-
21. Since Exhibit A-1, being the sale agreement dated 21 st March,
1984 between the Vendor and the Vendee showed that the sale
consideration for 300 sq. yards land was fixed at Rs.75,000, which
meant that the price fixed per sq. yard was Rs.250/-, the Court held
that the Vendee had to pay Rs.50,000/- to the Vendor, towards sale
under Ex.A1 and a further Rs.5,000/- under the receipt being Ex.A3,
the Trial Court effectively held that the Vendee was liable to pay a
would have to execute a sale deed in respect of 200 sq. yards from
deposit Rs.5,000/- in Court within the time stipulated, the suit would
stand dismissed.
above, the Vendor filed an appeal in the High Court, against the
judgment and decree in the suit for specific performance being O.S. of
1993 which was numbered as A.S. 1785 of 1994. The Vendee also
filed three appeals being A.S. No.892 of 1994 against the judgment
O.S.No.92 of 1993.
which is under appeal in this Court, the High Court inter alia dismissed
all the appeals that is A.S. Nos.892, 893, 894 filed by the Vendee and
A.S. No.1785 of 1994 filed by the Vendor and confirmed the judgment
passed by the Trial Court. While the appeal being C.A. No.3574 of
2009 has been filed by the Vendor, the three appeals being C.A. Nos.
3574 of 2009 being the Vendor submitted that the agreement dated
21st March, 1984 between the Vendor and Vendee was liable to be
25. Mr. Gowtham argued that there was a clause in the agreement
Vendee, in terms whereof the Vendor agreed to register the sale deed
in favour of the Vendee, within 45 days from the date of the said
4.5.1984. Mr. Gowtham submitted that full payment was not made
within the aforesaid date. The appellants after waiting for 20 more
26. Mr. Gowtham argued that the sale agreement was conditional
between the Vendor and Pratap Reddy, had assured the Vendor that
she and/or her husband had already spoken to Pratap Reddy, to get
specific performance. There was no scope for sale of 200 sq. yards of
agreement.
29. The Vendor and her husband Darshan Reddy contended that
they had not refused to execute the registered sale deed as alleged.
settlement with Pratap Reddy as agreed, and had also failed to pay
specifically enforced.
30. The Vendor and her husband Darshan Reddy also asserted that
the Vendee was also not ready to pay the balance sale consideration
and had sought further time for payment on the ground that he did
not have the money. The suit for specific performance was thus, not
maintainable. In any case, the agreement for sale of 300 sq. yards of
yards of land to the Vendee. They have asserted that the Vendee had
taken possession of 200 sq. yards of land, 100 sq. yards having been
the agreement dated 21.3.1984 in its entirety. The Court should have
set aside the purported sale deed in respect of 100 sq. yards of land
in favour of Pratap Reddy and directed the Vendor to sell the entire
believe that the Vendor would, within 11 days from purchase of 300
sq. yards of land (the suit land), enter into an agreement for sale of
100 sq. yards of land, was in any case, subsequent to the Agreement
dated 21.3.1984 was for sale by the Vendor, to the Vendee of 300 sq.
of the entire 300 sq. yards of land was delivered to the Vendee. This
further argued that, the fact that the Vendee had paid Rs.40,000/- to
the Vendor on the date of execution of the sale agreement itself, apart
acknowledged.
approached the Vendor and her husband with the balance amount of
Rs.30,000/- and requested them to register the sale deed, but the
Vendor and her husband refused to receive the amount and instead
the earlier agreement between the Vendor and Pratap Reddy, for
under the said argument to transfer the suit property to the Vendee.
By 4th May, 1984, that is within 47 days from the date of the
that the Appeals are all liable to be dismissed. First of all, on the date
on which the Vendee filed the suit for specific performance of the
agreement against the Vendor and her husband, she was aware of the
against the Vendor and her husband, for specific performance of the
41. Mr. Navare argued that the Vendee filed a second suit against
Pratap Reddy for a declaration that the sale deed executed by the
42. Mr. Navare pointed out that as late as on 5.4.1989, the Vendee
suit for specific performance filed in 1984. The Vendee only added
the prayers. The reliefs claimed by the Vendor in the suit for specific
1. AIR 1954 SC 75
16
44. Mr. Navare submitted that the Vendee chose not to challenge
Procedure (CPC).
45. Mr. Navare submitted that the second suit filed by the Vendee
46. Mr. Navare concluded that the second suit was also hit by
Order II Rule 2, and was thus barred under the law. In any case, the
second suit filed by the Vendor was only for a declaration and there
was no prayer for any consequential relief. The second suit was thus
sale deed with respect to a property will take effect over any
49. Mr. Navare submitted that Pratap Reddy had also filed a suit
50. Mr. Navare emphatically argued that the right which have
51. Mr. Navare submitted that the bar of the second suit under
Order 2 Rule 2 of CPC was raised in the suit, by Pratap Reddy, that
53. Mr. Navare concluded that this Court might decline to invoke
order is illegal. This Court should certainly not invoke its jurisdiction
54. It is not in dispute that the Vendor agreed to sell the entire
55. It is also not in dispute that the Vendee paid Rs.40,000/- to the
Vendor on the date of the agreement itself and also paid a sum of
56. The defence of the Vendor that the Vendee was unable and/or
57. The finding of the Trial Court, affirmed by the High Court that
the Vendee was ready and willing to perform her obligations under
hereinafter.
21.3.1984 was subject to the condition that the Vendee would get the
(iv) Within a month and a few days from the date of execution
59. It is well settled that the onus of proof lies on the party who
by the Vendor, that the Vendee and/or her husband would negotiate
with Pratap Reddy to get his earlier agreement with the Vendor
Trial Court and the High Court rightly did not believe the Vendor.
60. The effective concurrent finding of the High Court and the Trial
Court, that the Vendee had been ready and willing to perform and
61. The concurrent findings of the High Court and the Trial Court
that the Vendee was ready and willing to perform and had performed
62. It is true that the Trial Court had directed the Vendor to pay
by the Court.
63. In any case, the Vendor had filed an appeal against the decree
in the suit for specific performance. The Vendee, who had been
litigating for about 10 years by April, 1994 and had already paid
Rs.45,000/- over 10 years ago, but not got the suit land, could not be
64. Since there was an appeal of the Vendor pending, the failure
65. The question is, whether as argued by Mr. Gowtham, the High
under appeal before the High Court, whereby the Trial Court allowed
the suit for specific performance in part, holding that the Vendee was
consideration of Rs.75,000/-.
66. While Mr. Gowtham has argued that the Courts should not at
the value of the part of the contract left unperformed would be small
compensation.
74. The Court may, under Section 12 of the S.R.A. direct the party
as he can perform, provided the other party pays or has paid the
within the time stipulated in the Agreement dated 21.3.1984, that is,
within 45 days or if not 45, within 47/48 days from the date of its
execution.
thereafter, which was duly acknowledged and also offered to pay the
balance Rs.30,000/- within 30.4.1984 that is, within 45 days from the
date of execution of the contract, which the Vendor did not accept. A
from Canara Bank on 4.5.1984, that is the 47th day of the execution of
the agreement.
Rs.45,000/- had already been paid by the Vendor to the Vendee and
the Vendor had been ready to and had offered to pay the entire
to sell 100 square yards of the suit land to Pratap Reddy by executing
80. Under the Limitation Act 1963 the period of limitation for filing
a suit for specific performance is three years from the date fixed for
82. The Vendee was put to notice of the refusal of the Vendor to
83. The Vendee neither amended her pleadings in the plaint nor
The Court adding Pratap Reddy as defendant in the suit for specific
Section 21(1) of the Limitation Act, that the suit against Pratap Reddy
specific performance.
84. The Vendee did not implead the Vendor as defendant in her
null and void. The suit has rightly been dismissed for non joinder of
being adjudged null and void without impleading the executant of the
document, as defendant.
85. The suit for specific performance being time barred against
Pratap Reddy, and the suit against Pratap Reddy also having been
transferring 100 sq. yards of the suit land to Pratap Reddy. Moreover,
86. Since title in respect of 100 square yards had passed to Pratap
Reddy and the suit for specific performance was barred by limitation,
the Trial Court was constrained to decree the suit for specific
executed in respect of the balance 200 square yards of the suit land,
89. After having entered into an agreement for sale of 300 Sq.
yards of land, with her eyes open, and accepted a major part of the
mouth of the Vendor to contend that the contract should not have
yards meters of the suit land which the Vendor still owned. It is
patently obvious that the Vendor did not disclose any earlier
for breach of agreement to sell the entire suit land, the Trial Court
could not be sold to her. The total price agreed upon being
Rs.75,000/- for the entire suit land, comprising 300 square yards, the
agreed price works out to Rs.25,000/- for 100 square yards and/or
Rs.2,500/- per square yard. The Trial Court very fairly reduced the
into the question of whether the said suit was barred under Order II
true that, the clubbing of suits for hearing them together and
reasons. Such clubbing together of the suits do not convert the suits
into one action as argued by Mr. Navare. The suits retain their
93. The plea of bar under Order II Rule 2 of the CPC is a technical
Oswal v. Deepak Jewellers and Ors.3, this Court held that if the
plea of bar under Order II Rule 2 is not taken, the Court should not
Singh Rathee and Ors.4, this Court held that the plea cannot be
High Court under appeal, confirming the judgment and order of the
Trial Court, that calls for interference of this Court. The High Court
has rightly dismissed the appeals from the judgment of the Trial
Court.
.......................................J.
[ UDAY UMESH LALIT ]
..….…..............................J.
[ INDIRA BANERJEE ]
NEW DELHI
SEPTEMBER 18, 2020