BALVIR KAUR AND ANOTHER Vs. SMT. TARO BAI

JUDGEMENT

(1.) Civil Misc. No. 9961-C of 2011 For the reasons stated in the application, the same is allowed. Delay of 37 days in re-fling of the appeal is condoned.Civil Misc. No. 9965-C of 2011 The present application has been filed under Order 22 Rule 3 read with Section 151 CPC for bringing on record the legal representatives of appellant No. 1-Balvir Kaur, whose names are mentioned in paragraph No. 4 thereof. For the reasons stated in the application, the same is allowed subject all just exceptions. The Registry is directed to amend the memo of parties.Regular Second Appeal No. 3530 of 2011 The respondent/plaintiff had instituted a suit for specific performance of agreement to sell dated 6.2.2006 which had been decreed by the trial Court. The appeal filed by the present appellants/defendants was also dismissed by the lower Appellate Court. Hence, the present regular second appeal has been filed.

(2.) Briefly stated, the respondent/plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 6.2.2006. It was pleaded in the suit that the defendants are owners in possession of the house, detail and description whereof is given in head note of the plaint. It was averred that agreement to sell dated 6.2.2006 was arrived at between plaintiff No. 1 and the defendants for a total sale consideration of Rs. 2,17,000, out of which Rs. 35,000 was paid as earnest money to the defendants in presence of the attesting witnesses. The agreement was read over and explained to the parties. 5.5.2006 was the stipulated date for payment of balance sale consideration and for execution and registration of the sale deed. It was further pleaded that on the date fixed for registration of the sale deed, the plaintiff along with the balance sale consideration and registration expenses remained present in the office of Sub Registrar, Jalalabad, but the defendants never came to perform their part of the agreement to sell. Thereafter, the plaintiff had approached the defendants to perform their part of the agreement but they stated that the sale consideration was Rs. 3,17,000 instead of Rs. 2,17,000. Since the defendants were not performing their part of agreement, the suit for specific performance of agreement to sell dated 6.2.2006 was filed. In the suit, an alternative plea for recovery of Rs. 2,17,000 was also made out of which Rs. 35,000 was sought as refund of earnest money paid and Rs. 1,82,000 as damages.

(3.) Upon notice, the defendants had caused appearance and filed written statement raising preliminary objections regarding maintainability of the suit, locus standi of the plaintiff and cause of action. The defendants admitted that they are owners in possession of the house in dispute. It is further stated that they never agreed to sell the house for a sum of Rs. 2,17,000 but the agreement was executed for a consideration of Rs. 3,17,000. It was further stated that no earnest money was received by the defendants in the presence of the marginal witnesses or the Deed Writer at the time when agreement to sell was written, whereas Balvir Kaur was polio affected.