K D SHARMA Vs. C K MODY

JUDGEMENT

(1.) This appeal is against the judgment and decree passed on 14.3.90 by Shri Prem Kumar, Commercial Sub Judge dismissing the plaintiff/Appellant's suit.

(2.) On 6.3 80, a suit was filed by the plaintiff against one Shri H K. Mody, (now deceased and represented by his L R.s, the respondents), claiming a decree directing the deft. by a mandatory injunction to sign the deed of sale and to get the same registered in favour of the pff. It was alleged that by an agreement in writing dated 22.10 71, the deft. contracted to sell to the pff. plot No. 21 block 'K' in Hauz Khas, and the house constructed thereon for Rs. 1 80,000%. A sum of Rs. 40.000.00 was paid at the time of execution of the deed. The house was subject to mortgage with L.I.C. It was provided in the agreement that on pff. making payment of Rs. 80.000.00 to enable the deft. to redeem the house to enable him to transfer the property in pff.'s favour, vacant possession would be delivered to the pff. The balance amount of Rs. 60.000.00 was payable at the time of registration subject to the deft. procuring Income Tax Clearance Certificate and redeeming the Life Insurance Mortgage. It is further alleged that in addition to Rs. 40,000.00 paid by the pff. to the deft. at the time of execution of agreement a further sum of Rs. 80.000.00 was paid & pff. was put in possession of the house on 25.11.71 and thereafter pff. has been residing in the house in part performance of the contract. The deft. failed to procure the Income Tax Clearnce Certificate, despite pff.'s request & deft. did not perform his part of the contract. In the meanwhile, with the consent of the deft. the pff. purchased stamp paper worth Rs. 14.400.00 and prepared a draft sale deed but the same was not signed by the deft, who had promised to execute the same. Thus the Deft. failed and neglected to execute the sale deed. The pff. thus claimed a decree for mandatory injunction.

(3.) The case was posted for pff. evidence on 5.9.89. Evidence was not produced and steps were also not taken for summoning any witness. On request case was further adjourned to 26.9.89, on which date again an adjournment was sought. Last opportunity to lead evidence was allowed. The case was directed to be posted on 8.1.90 on payment of Rs. 75.00 as costs. On 8.1.90 none appeared for the pff. The suit was dismissed in default under 0. 9 R. 8, Civil Procedure Code , which was ultimately restored on 20.11.90 subject to payment of Rs, 150.00 as costs. The case was then posted to 27.2.91 for payment of costs and for pffs evidence and and on 143.91 for deft's. evidence. On 27.2.91 pff's evidence was not present. Another adjournment was allowed to adduce evidence subject to payment of Rs. 50.00 as costs. The case was adjourned to 14.3.91 the date already fixed. On 14.3.91 the following order was passed by the court: