SAVIDA SADH Vs. NARENDER PAL MALIK

JUDGEMENT

(1.) THIS Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment of the trial Court dated 13.8.2001 dismissing the suit for specific performance and injunction filed by the appellant/plaintiff. The suit has been dismissed although the proposed seller/defendant no.1 failed to appear in the proceedings i.e. no written statement was filed, the witness of the appellant/plaintiff was not cross- examined and no evidence was led by the defendant no.1/respondent.

(2.) THE facts as per the plaint are that the appellant/plaintiff entered into an Agreement to Sell of the suit property being commercial space measuring 14'x 15' (fully covered) alongwith 10'x15' of open area facing the street on the south side and forming part of property no. I-C/125, Lajpat Nagar, New Delhi (shown in red in the site plan annexed with the plaint), hereinafter referred to as the suit property. The total sale consideration under the Agreement to Sell dated 1.11.1988 was stated to be RS. 1,75,000/- out of which, a sum of RS.1,50,000/- was paid to the respondent /defendant no.1. The balance amount was payable after the property was to be got converted into freehold and at the time of registration of the sale deed. Till such time, to compensate the respondent/defendant no.1, a nominal amount of rent of RS.500/- per month was payable and was paid. The appellant/plaintiff was put in peaceful possession of the suit property, and which possession has continued to be with the appellant/plaintiff since that date. It was further pleaded in the plaint that a new Government was formed in November, 1993 and which allowed the conversion of the leasehold plots into freehold plots and therefore the appellant/plaintiff requested the respondent/defendant no.1 to get the property converted into freehold, but, the respondent/defendant no.1 became greedy on account of prices of the property having gone up and demanded a sum of RS.3 lacs, and failed to get the property converted into freehold. The subject suit for specific performance therefore came to be filed. The defendant no.2/Municipal Corporation of Delhi ( MCD) was only a proforma party which had filed its written statement. MCD was thereafter deleted from the array of parties.

(3.) BOTH conclusions of the trial Court are clearly misplaced, moreso because the respondent/defendant no.1 has failed to appear in the Court, and therefore the deposition of the appellant/plaintiff made as PW-1 was bound to be believed. The agreement in question Ex. PW1/2 though is titled as lease agreement however, it is settled law that nomenclature of a document is not material and what has to be seen is the substance of the same. When we look at the agreement Ex.PW1/2, it was clear that the agreement in question was really also an Agreement to Sell inasmuch as no one would pay a huge amount of RS.1,50,000/- out of a total amount of RS.1,75,000/- which of course for the sake of convenience is called security deposit. Para 4 of the agreement however clearly shows that amount of RS. 1,75,000/- is a final sale price. Paras 2 to 4 of the Agreement Ex. PW1/2 are relevant, and the same read as under:-