CHANDER LAL VIRMANI Vs. RAM PIARI

JUDGEMENT

(1.) THIS second appeal is of the year 1997 i.e seventeen years old. I am informed that the suit was filed in the year 1967 i.e 47 years back. Besides the aspect of litigation pending for the last 47 years, the biggest hurdle in effective disposal of this case is that there is almost no record of the trial court because the trial court record was destroyed. The only record available before me is the depositions of witnesses, and there are neither any pleadings of the case and nor are there any documents proved and exhibited by the parties in the court below. Yet, this Court has to perform the onerous task of deciding this second appeal as the counsel for the parties have stated no compromise is possible and appeal has to be decided on merits. This Court, therefore, with the assistance of counsels for the parties and the limited record available, has made an endeavour to understand the facts, the issues etc and accordingly decide the RSA. I may also note that most of the facts which are referred to in the present judgment would be the admitted/ common facts as were found/established in the trial court at the time of disposal of the suit. With this preface, let me turn to the facts and issues in the present case.

(2.) THE disputed property is an old property which was initially owned by the Rehabilitation Department. The suit/disputed property is an old construction on a plot land admeasuring 40 sq yds. The suit property bears municipal number R -29, Double Storey, Maszid Road, Shiv Market, RSA 65/1997 to 69/1997 Page 3 of 17 Jungpura, New Delhi. The suit property was allotted by the Ministry of Rehabilitation to one Sh. Chaman Lal, original plaintiff, and who is now represented by his legal heirs the appellants. Sh. Chaman Lal paid 20% of the price of the property to the government and was to pay the balance of Rs.3,380/ - to the Ministry of Rehabilitation. At this stage the defendant (respondent herein) entered into an agreement to sell with Chaman Lal on 07.01.1962 to purchase the suit property for a sum of Rs.5,825/ -. The respondent/ defendant had to pay a sum of Rs.2,425/ - to Chaman Lal/ plaintiff and was to pay the balance payment of Rs.3,380/ - to the Ministry of Rehabilitation. The agreement dated 07.01.1962 entered into between the parties has been proved and exhibited before the court below as Ex. D1. Parties before me also do not dispute this agreement. As per this agreement, a power of attorney (POA) was executed in favour of the respondent/ defendant. After the respondent/ defendant made payment of the balance consideration of Rs.3,380/ - to the Ministry of Rehabilitation, Chaman Lal/ plaintiff had to obtain necessary permission for selling of the suit property to the respondent/ defendant and also transfer the same to the respondent/defendant. Disputes arose between the parties because whereas the respondent/defendant claimed that the POA executed in favour of the respondent/ defendant had to be registered by Chaman Lal/ plaintiff but the same was not got done and thus the respondent/ defendant could not pay the balance sale consideration of Rs.3,380/ - to the Ministry of Rehabilitation, the plaintiff/ Chaman Lal alleged that the respondent/ defendant had committed a breach of contract by not making payment of the balance sale consideration of Rs.3,380/ - to the Ministry of Rehabilitation. Chaman Lal/ plaintiff thereafter paid the balance sale consideration to the Ministry of Rehabilitation and got the sale deed executed in his favour from the Ministry of Rehabilitation. The disputes continued between the parties because Chaman Lal/ plaintiff claimed that the respondent / defendant did not make payment of moneys for completing the sale transaction but the respondent/ defendant on the other hand insisted that the breach of contract was on the part of Chaman Lal/ plaintiff. Notices were exchanged between the parties and some of them have been proved on record of trial court as Ex. DW4/3, Ex. DW4/7, Ex. DW4/9 & Ex. DW4/13. What are the dates of these notices, is not too clear from the judgments of the court below which are available in this case, however, the notices appear to be of the years 1964, 1966 & 1967 as agreed before me by the counsels for the parties. The plaintiff / Chaman Lal thereafter alleging that the respondent/ defendant was only a licencee, cancelled the licence by means of legal notice exhibited as Ex. PW9/8 and the corresponding postal receipt was exhibited as Ex. PW9/9 and whereafter in 1967 the subject suit for possession and mense profit came to be filed.

(3.) THE trial court decreed the suit holding the respondent/ defendant guilty of breach of contract. The first appellate court upturned the judgment of the trial court and dismissed the suit by holding that the respondent/ defendant cannot be said to be guilty of breach of contract. The first appellate court has thereafter come to the following conclusion for allowing the appeal filed by the respondent/defendant: -