JAI KISHAN MEHTA Vs. RAM PRASHAD

JUDGEMENT

(1.) [Ed facts : Parties entered into an agreement of sale of suit house on 14.10.77 for Rs. 40,000.00. Plaintiff paid Rs. 36,000.00 and balance was payable at the time of registration of sale deed which was to take place within one month from the date seller obtained permission of Comp. Auth., under Urban Land (C&R) Act If Deft. failed to perform his part, then pff. was entitled to Rs. 5,000.00. Madanlal & Ors. alleging to be co-owners filed a suit (993/77) in High Court and obtained interim injunction against sale. On 8.9.80, pff. sent notice to Deft. before filing suit. The Deft replied this notice. Pff then filed suit to which Deft. filed W/S. on 3.11.80. As contentions in W/S. differed from the reply to Notice, Deft after filing of reply did not prove and exhibit same After the trial, ADJ held that plaint allegations stood proved but denied the relief of specific performance of agreement to sell and granted alternative relief of damaged and compensation. Pff. appealed to High Court against denial of primary relief.] After detailing above, Judgment proceeds : Lokeshwar Prasad J. 11. We have heard the learned counsel for the parties at length and have also carefully gone through the documents/material on record. On behalf of the appellant the arguments were advanced by Sh. Ishwar Sahai, Senior Advocate whereas on behalf of the respondent the arguments were advanced by Shri Bikramajit Nayar,, Advocate. The learned counsel for the appellant after taking us through the relative facts and the merits of the case, particularly after bringing to our notice the findings rendered by the learned Trial Judge in the impugned judgment urged that in the facts and circumstances of the present case the appellant was entitled to a decree for specific performance and not to a decree for the alternative relief as has been done in the instant case. On the other hand the learned counsel for th? Defs. submitted that the relief of specific performance of the contract could not have been granted to the plaintiff by the learned Trial Judge"due to the following factors : (a) Due to the restraint order passed by the court on an application I. A. No. 3950/77 under Order 39 Rule 1 and 2 read with Section 151 Civil Procedure Code . in Suit No. 993/1977 filed by Shri Madan Lal & Ors. against Deft. (b)?Due to the fact that when the restraint order, referred to at (a) above, was served on the deft., the Pff. had agreed to take the amount of Rs. 36,000.00 back from the deft. and w hen the deft. wanted to pay the amount back, the PIT. did not take the same on the plea that the same be retained by the deft. as the pff. was arranging to procure another property and that the pff. would take the money back from the deft. at that time after deducting the rent that would become due and payable to the deft. in the meantime. It was urged by the learned counsel for the deft. that the moment pff. agreed to take back the amount of Rs. 36,000.00 and the moment the deft. offered to return the above said amount to the pff. the agreement in question was brought to an end and as such there was no question now of its enforcement; (c) The pff. who is the 'dominus Iitus' in the present litigation sought for alternative reliefs in the suit filed by him in the court of Addl. District Judge, Delhi and both the reliefs, sought by plaintiff are to be treated on par with each other and the Court which had tried the subject matter already granted him one relief vide judgment dated 20.2.85 which in other words means that he (Pff) had the benefit of relief and now cannot come to the appellate Court and ask for the relief not granted to him by the trial court. The learned counsel for the deft, while making his submission on the above point placed reliance on Sakku Bai Amnal vs. R. Babu Radiar AIR 1977 Mad 223; Bsndi Chalpathi Rao. vs. Official Assignee AIR 1978 Mad 112 Soma Sundram vs. Chidambaram AIR (38) 1951 Madras 282; and (d) The propriety rights in respect of the property in question vest in the lessor and the respondent being a mere lessee cannot sell or dispose of the same unless permitted by the lessor in terms of the lease deed.

(2.) Regarding (a) above : In our opinion the submission of the learned counsel for the respondent that the relief of the specific performance of the contract could not have been granted to the plaintiff by the learned Trial Judge due !to restraint order passed by this Court in I.A. 3950/77 in Suit No. 993 of 1977, filed by Sh. Madan Lal against the deft. is devoid of substance because the restriction imposed by the above said order, being temporary in nature, it cannot be said that permanent inability had arisen due to which the defendant could not execute the sale deed. It cannot be stated that the nature of the interim order, passed by this Court, was such so as to shake the very foundation of the contract and make it impossible of the performance for all times to come. In our above view, we stand fortified by a decision of the Supreme Court in case Satya-Brata vs. Magneeram Bangar & Co., AIR 1954 SC 44 and Ram Swaroop Gaur vs. Rati Ram AIR 1984 Allahabad 369. The Supreme Court in case Vannarakkal vs. Chandramaath 41(1990) DLT314 have gone to the extent of holding that the rights of an attaching creditor shall not be allowed to override the contractual obligation arising from an antecedent agreement for the sale of the attached property. Moreover, during the course of arguments, the learned counsel for the appellant submitted that S. No. 993/77- Madan Lal & others vs. Ram Parsad, in which the injunction order was passed, has already been dismissed with costs by this Court on 18.1.1982. He further submitted that Sh. Madan Lal & Ors. have filed an appeal RFA (OS) 4/82-Madan Lal vs. Ram Parshad which is still pending and there is no stay or restraint order in the above said appeal. The learned counsel for the respondent, in his usual fairness, was fair enough to concede the correctness of the above facts. Needless to say that as per the settled law the present appeal is continuation of proceedings of Suit No. 88/1980, filed by the appellant in the Court of Addl. District Judge, for specific performance of agreement dated 14.10.1977. In other words, legally speaking, during the pendency of the proceedings, with the dismissal of Suit No. 993/77 on 18.1.1282 the impediment, if any, on account of the restraint order has automatically ceased to exist. In view of the above discussion, the above ground urged for the non-performance of the contract is no longer available to the respondent,

(3.) Regarding (b) above : As already stated, the case of the respondent is that when the restraint order, referred to in the preceding para, was served on the respondent, the appellant had agreed to take the amount of Rs36,000.00 back from the respondent and when the respondent wanted to pay the amount back, the appellant did not take the same on the plea that the same be retained by the respondent as the appellant was arrangi to purchase another property and that the appellant would take the money back from the respondent at that time after deducting the rent that would become due and payable to the respondent in the meantime. The above plea, taken by the respondent, has to be judged on the basis of the material on record including the pleadings of the parties and the evidence adduced by the parties in support of their respective pleas before the Trial Court.