MEENA RANI Vs. AJAIB SINGH

JUDGEMENT

(1.) THIS is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings of facts recorded by both the Courts below holding that the defendant-appellant is under a legal obligation to perform her part of the agreement dated 21.8.1998 Ex.P4 by executing sale deed in favour of the plaintiff-respondent. The plaintiff-respondent is to pay a sum of Rs. 11,000/- after deducting costs of the suit and in case the defendant-appellant failed to execute the sale deed, the plaintiff-respondent has been held entitled to get the sale deed executed through Court. The plaintiff-respondent has also been found entitled to possession of the suit property at the time of execution of the sale deed and the defendant-appellant is perpetually restrained from interfering in the suit property in any manner whatsoever.

(2.) THE Civil Judge in his judgment dated 5.11.2000 has found that the agreement dated 21.8.1998 Ex.P4 was not a forged document as was alleged by the defendant-appellant. It has further been found that the filing of a suit by the plaintiff-respondent registered as Civil Suit No. 352 of 10.9.1998 Ex.D1 against the defendant-appellant would not constitute a bar for filing the suit for specific performance from which the instant appeal has arisen because in earlier Civil Suit No. 352 of 10.9.1998, the plaintiff-respondent has claimed relief of permanent injunction against the defendant-appellant. At that stage, no suit for specific performance could have been filed because the date of execution of the sale deed fixed between the parties was 21.2.1999. Therefore, on issue No. 1 the findings were recorded by the learned Civil Judge against the defendant-appellant. On issue Nos. 3 and 4, the Civil Judge held that agreement dated 21.8.1998 was validly entered into and a sum of Rs. 54,000/- was paid by the plaintiff-respondent to the defendant-appellant and he had locus standi to file the suit for specific performance. On issue No. 5, the Civil Judge held that the plaintiff-respondent approached the Sub Registrar, Barnala on 19.2.1999 and 22.2.1999 Exs.P5 and P6 showing his presence for performing his part of the agreement and also showing that the defendant-appellant had not come to the office of Sub Registrar, Barnala. The plaintiff-respondent was always willing and ready to perform his part of the contract. It has further been held that he visited the office of Sub Registrar, Barnala along with remaining sale consideration. However, the defendant-appellant is not wiling to perform her part of the contract.

(3.) MR . A.S. Jattana, learned counsel for the defendant-appellant has argued that both the Court below have committed grave error in law by rejecting the argument based on Order II Rule 2 of the Code. The learned counsel maintained that once the plaintiff-respondent had filed Civil Suit No. 352 of 10.9.1998 seeking permanent injunction against the defendant-appellant in respect of the same property, no suit for specific relief could have been filed on 9.3.1999. The learned counsel further submitted that no consideration was ever passed on to the defendant-appellant and the agreement without consideration cannot be accepted in law.