KISHAN LAL Vs. CHANDRO

JUDGEMENT

(1.) This Regular Second Appeal has been filed by Kishan Lal plaintiff, challenging the judgments and decrees of the Courts below, whereby the suit for specific performance filed by the plaintiff was dismissed by the Trial Court but on appeal instead of granting the decree for specific performance, the Additional District Judge had decreed the suit of the plaintiff for payment of Rs. 14,000/- along with interest etc.

(2.) The facts in brief are that Kishan Lal plaintiff had filed a suit for specific performance of the agreement to sell dated 21-7-1984 executed by Smt. Chandro defendant, whereby she had agreed to sell her share in the suit land to the plaintiff for a sum of Rs. 10,000/- and had received Rs. 7000/- from the plaintiff at the time of the execution of the agreement to sell and the balance amount of Rs. 3000/- was to be paid at the time of the registration of the agreement to sell before the Sub Registrar, which was to be executed on or before 30-11-1984. It was further agreed-that in case of default by the defendant to perform her part of the contract, the plaintiff would be entitled to get the agreement specifically performed through the Court. It was alleged that the plaintiff was always ready and willing to perform his part of the contract and to get the sale deed executed in his favour but the defendant had been avoiding to perform her part of the contract on the one pretext or the other. It was alleged that he was still ready and willing to perform his part of the contract but the defendant had been putting off the matter on one pretext or the other. It was alleged that the plaintiff had gone to the office of the Sub Registrar on 30-11 -1984 for the purpose of performing his part of the contract but the defendant did not come present there and in this manner she failed to perform her part of the contract. It was accordingly prayed that a decree for specific performance of the agreement to sell dated 21-7-1984 be passed in favour of the plaintiff and against the defendant. The said suit was contested by the defendant controverting the allegations contained in the plaint and alleging therein that the defendant never agreed to sell the suit land and had not entered into the alleged agreement to sell in respect of the suit land with the plaintiff as alleged and that the writing if any in this regard was forged. It was alleged that the defendant had never signed/thumb marked any such agreement with the plaintiff and it was prayed that the suit be dismissed.

(3.) On the pleadings of the parties, the learned Trial Court framed various issues including issue No. 1 as to whether the defendant had entered into an agreement to sell the suit land to the plaintiff in respect of the suit land on 21-7-1984. After hearing both sides, the learned Trial Court, dismissed the suit of the plaintiff holding that the plaintiff had failed to prove the execution of the agreement to sell dated 21-7-1984 and since no agreement for sale has been executed and rather the agreement was forged, there was no question of defendant receiving Rs. 7000/- from the plaintiff at the time of the execution of the alleged agreement. Resultantly, the suit filed by the plaintiff was dismissed with costs. However, in appeal filed by Kishan Lal plaintiff, the learned Additional District Judge, reversed the findings of the trial Court on issue No. 1 and after considering the entire evidence, oral and documentary, it was found held by the learned Additional District Judge that the defendant had entered into an agreement to sell dated 21-7-1984 with the plaintiff. The findings on other issues were also reversed by the learned Additional District Judge and the same were also decided in favour of the plaintiff and against the defendant. However, the learned Additional District Judge, while considering the question as to whether it was a case for specific performance or a case for damages, decreed the suit of the plaintiff only for payment of Rs. 14,000/- (double the amount) with interest instead of specific performance of the agreement to sell only on the ground that the agreement to sell was dated 21-7-1984 whereas the suit was decided by the Trial Court on 21-3-1994 and that the specific performance of the contract at this stage would prove great hardship to the defendant. Reliance was placed on the law laid down by the Honble Supreme Court in the case of Parakunnan Veetill Josephs Son Mathew v. Nedumbara Kuruvulas Son, AIR 1987 SC 2328 (wrongly mentioned as AIR 1987 SC 340). Dissatisfied with the judgment and decree passed by the learned Additional District Judge passing money decree of Rs. 14,000/- instead of specific performance of the agreement to sell dated 21-7-1987, the plaintiff filed the present appeal in this Court.