GURPREET SINGH Vs. CHATTERBHUJ GOEL

JUDGEMENT

(1.) On 18/12/1978, Col. Sukhdev Singh, father of the then minor Gurpreet Singh, moved a petition under S. 8 of the Hindu Minority and Guardianship Act, 1956, for the grant of permission for the sale of H. No.1577, Sector18D, Chandigarh, belonging to the appellant. Vide order dated 11/04/1979, this petition was allowed by the Senior Subordinate Judge, Chandigarh and permission was granted to Col. Sukhdev Singh, acting on behalf of the minor to sell the property in question. As a sequel to the permission having been granted, Col. Sukhdev Singh, as guardian of the appellant, entered into an agreement with the respondent on 4/06/1979 for the sale of the house for Rs. 2,85,000.00 The agreement of sale fixed the schedule of payment as also the date by which the sale deed was to be executed. It appears from the evidence on record that the respondent in order to comply with the conditions of the agreement made arrangements for the payment of the sale price and was willing to have the sale deed executed. It has also come in evidence that Col. Sukhdev Singh, on the other hand seems to have developed some reservation with regard to the proposed sale, with the result that it could not be executed within the stipulated period. On 18/07/1979, the respondent filed a suit for permanent injunction against the appellant to restrain him from alienating the house in dispute to a third party as also a criminal complaint for an offence under S. 420, Indian Penal Code, against Col. Sukhdev Singh. The trial Court, however, vide order dated 31/10/1979, discharged Col. Sukhdev Singh in the criminal complaint. Against the order of discharge, the respondent filed Criminal Revision No.1495 of 1979 and during the pendency of the revision petition, the parties on 4-2-1980 agreed to compromise the dispute. The respondent agreed to pay a sum of Rs. 2,45,000.00 plus interest of Rs.1,35,000.00 as also certain payments towards rent. Col. Sukhdev Singh was also required to obtain the sanction from the Estate Office and to execute the sale deed. Thereafter, the criminal complaint as also the civil suit were agreed to be withdrawn. It appears that once again Col. Sukhdev Singh did not faithfully abide by the terms of the compromise with the result that Crl. Revision No. 1495 of 1979 was ultimately accepted by the High Court vide order dated 11/02/1980, and the order of the trial Court discharging Col. Sukhdev Singh was set aside. Against the order of the High Court, Col. Sukhdev Singh filed Crl. Appeal No. 595 of 1980 before the Supreme Court, which was decided on 2/09/1980, and the order of the High Court was set aside and that of the trial Magistrate restored. The respondent was also given the opportunity to file a suit for specific performance of the agreement dated 4/06/1979. The Supreme Court, vide its aforesaid order also directed that the appellant i.e. Gurpreet Singh would return a sum of Rs. 40,000.00 being the amount of earnest money, which he had received from the respondent.

(2.) In response to the suit filed by the respondent pursuant to the order of the Supreme Court, Col. Sukhdev Singh, as guardian of the minor appellant, filed a written statement controverting the allegations made in the plaint. On facts it was stated that the appellant had always been ready and willing to perform his part of the contract and the default had been committed by the respondent Sh. C.B. Goel. It was also mentioned that the compromise entered into between the parties during the pendency of Criminal Revision No. 1495 of 1979 could not be adhered to because the income-tax clearance certificate was not granted. It was also urged that the agreement to sell dated 4/06/1979, stood rescinded in view of the compromise arrived at between the parties on 4/02/1980 and by the order of the Supreme Court dated 2/09/1980. Objection as to the maintainability of the suit due to the non-compliance with O. 32, R. 3 of the Code of Civil Procedure was taken. The trial Court, after examining the evidence on record, came to the conclusion that the default in execution of the sale deed had been committed by the appellant and that there had been no novation of the contract as the statements in Court were in the nature of a settlement proposed in the Court at the time of the hearing of the case. The learned trial Court, however, declined to grant the decree to the plaintiff-respondent on the ground that the relief in a suit of specific performance being discretionary in view of the provisions of S. 20 of the Specific Relief Act, it was not incumbent on the Court to grant such a decree. The Court held that while granting a decree for specific performance, the interest of the minor was to be kept in view as the primary consideration. It was held that as more than two years had elapsed since the signing of the agreement dated 4/06/1979, and as the prices of real estate in Delhi had risen substantially, during this period, it was not possible for the minor to purchase any property in Delhi with the amount that he was to receive from the respondent. This finding was based on the fact that while securing the permission to sell the property under S. 8 of the Hindu Minority and Guardianship Act, 1956 the Court had ordered that some property be purchased for the minor from the sale proceeds.

(3.) An additional factor which weighed with the Court while declining the relief of specific performance, was that Col. Sukhdev Singh had not been appointed the guardian for the minor appellant in terms of O. 32, R. 3, Civil Procedure Code, and as such, Col. Sukhdev Singh was not competent to defend the suit on behalf of the defendant/appellant. On the reasoning adopted by the learned trial Court it was held that the plaintiff-respondent was not entitled to the decree for specific performance. Dissatisfied with the decree of the trial Court, the respondent preferred an appeal to this Court. The learned single Judge endorsed the findings of the trial Court that the default in complying with the agreement dated 4/06/1979 had been committed by the appellant defendant. On the question of the non-compliance with the provisions of O. 32, R. 3, C.P.C. the learned single Judge held that Col. Sukhdev Singh, though not formally appointed as the guardian, had conducted the cases for the appellant effectively and fought the litigation to the best of his ability and with tenacity. It was held that the non-compliance with the aforesaid provisions of the Civil Procedure Code was an irregularity and as such, was required to be ignored in terms of O. 32, R. 3A, C.P.C. as no prejudice has been suffered by the appellant. The learned single Judge also held that the reasons recorded by the trial Court in denying the relief of specific performance were not germane. The learned single Judge allowed the appeal and decreed the suit. Against the decree of the learned single Judge, the present letters patent appeal has been filed.