BRAJ BHUSHAN MITTAL Vs. JEET SINGH

JUDGEMENT

(1.) This second appeal has been filed challenging the judgment dated 18.7.2009 and the decree dated 22.7.2009 passed by the learned Additional District Judge, Court No. 11, Meerut in Regular Civil Appeal No.41 of 2008 (Braj Bhooshan Mithal vs. Jeet Singh) dismissing the appeal arising out of O.S. No. 130 of 2008, filed by the plaintiff-appellant which was dismissed by the learned Civil Judge (Junior Division), City Meerut vide the judgment dated 11.3.2008 and the decree dated 17.3.2008, rejecting the plaint as barred by the provisions of Order VII Rule 11 of Code of Civil Procedure, 1908(CPC).

(2.) The facts of the case are that the plaintiff-appellant had instituted O.S. No.130 of 2001(Braj Bhooshan Mithal vs. Jeet Singh) before Civil Judge (Junior Division), City, Meerut for specific performance of contract, directing the defendant-respondent to execute the sale deed in pursuance of the registered agreement to sell dated 04.01.1983, in favour of the plaintiff-appellant in respect of land of Khata No.39, Khasra No.27, area 0-15-0, Khata No.33/1, area 2-0-0 and Khasra No. 84/12 Min. area 1-10-00; total 3 numbers, total area 4-5-0, situated in village Mohammadpur Goomi, pargana, tehsil and district Meerut, after receiving the balance of the sale consideration of Rs.2000/ from the appellant out of the total sale consideration of Rs. 17000/-, as an amount of Rs. 15,000/- had already been paid to the defendant-respondent, at the time of registration of agreement to sell. The plaintiff-appellant's case is that as per the agreement to sell the defendant-respondent had to obtain permission from the competent authority(Ceiling), Meerut and intimate the plaintiff-appellant through registered post, and the plaintiff-appellant had to get the sale deed executed, within a period of one year from the date of receipt of said registered intimation after making payment of the balance of the sale consideration. The plaintiff-appellant sent a notice to the defendant-respondent on 31.12.1993, requesting him to be present at the office of Sub Registrar, Meerut on 28.1.1994 for execution of sale deed but the defendant-respondent did not accept notice sent through registered post. However, notice sent through UPC was served upon the defendant-respondent. On 28.1.1994, the plaintiff-appellant remained present at the office of Sub Registrar, Meerut for execution/registration of the sale deed but the defendant-respondent did not turn up. On the next day the defendant-respondent approached plaintiff-appellant; offered excuses and assured that he would execute the sale deed after completing the requisite formalities but he did not execute the sale deed in spite of many oral and written requests. The plaintiff-appellant as such sent another notice dated 4.1.2001, requesting the defendant-respondent to be present at the office of Sub Registrar, Meerut for execution of the sale deed on 30.1.2001 but on that date also defendant-respondent did not appear and sent an evasive reply. It was also pleaded that time was not the essence of contract and the possession of the land had already been delivered to the plaintiff- appellant at the time of registration of the agreement to sell. The plaintiff-appellant had always been and is still ready and willing to perform his part of the contract.

(3.) The defendant-respondent filed written statement. He denied execution of agreement to sell in favour of plaintiff-appellant. He pleaded that the value of the land in question is Rs.20-00 lac and in the year 1983 it was about Rs.5-00 lac, therefore, question of execution of registered agreement to sell for a sale consideration of Rs. 17,000/- did not arise. The defendant-respondent pleaded that the suit was barred by time and the plaint was liable to be rejected under Order VII Rule 11 C.P.C.