RAMESHWAR DASS GUPTA Vs. KAILASH CHANDER SHARMA

JUDGEMENT

(1.) Impugned in the present regular second appeal is the judgment dated 12.01.2007 passed by learned Addl. District Judge, Fast Track Court, Ambala affirming the judgment and decree dated 31.01.2004 passed by learned Addl. Civil Judge (Sr. Divn.), Ambala Cantt., whereby the suit of the plaintiff was dismissed on the ground that it is barred under Order II, Rule 2 CPC and the plaintiff has no locus standi to file the suit.

(2.) Briefly stated, the plaintiff-appellant had filed a suit for specific performance of the agreement dated 16.01.1995 executed by defendant No.1 with the plaintiff regarding house No.751/10, Sikliqar Mohalla, Ambala Sadar, Ambala Cantt. It was stated that defendant No.1 representing himself to be the exclusive owner of the disputed house agreed to sell the same to the plaintiff-appellant vide agreement to sell dated 16.01.995 for Rs. 1,52,000/-. The sale deed was to be executed on or before 15.04.1995 before the Sub Registrar, Ambala. Rs. 20,000/- were paid as earnest money and balance amount was to be paid before the sub Registrar at the time of registration of the sale deed. The possession was to be delivered at the time of execution of the sale deed. The plaintiff was always ready and willing to perform his part of the contract. However, defendant No.1 turned dishonest and got filed a false suit against himself by his daughter Mamta and others for permanent injunction restraining him and others from alienating the property in question to the plaintiff. On the said pretext, defendant No.1 refused to execute the sale deed, although, no objection certificate was obtained from Municipal committee, Ambala Sadar, Ambala Cantt. The office of the sub Registrar was closed due to holidays from 11.04.1995 to 16.04.1995. Therefore, on 17.04.1995, the plaintiff got his presence marked before the Sub Registrar. Though, defendant No.1 was present there but avoided the execution of sale deed on the pretext of suit filed by Ms. Mamta and others against him. He assured that the sale deed would be got executed later on. Both the defendants now in connivance with each other fully knowing about the agreement to sell dated 16.01.1995, made a deal regarding the house in question. Defendant No.2 purchased the house in question vide sale dated 09.06.1995 for Rs. 1,48,000/-. The actual sale consideration is much higher. Therefore, the sale deed executed by defendant No.1 in favour of defendant No.2 on 09.06.1995 is illegal and not binding on rights of the plaintiff. Defendant No.2 is not a bonafide purchaser. The defendants are bound by said agreement.

(3.) In the written statement, defendant No.1 took the legal objections that the suit is barred under Order II, Rule 2 CPC. Defendant No.1 stated that he had every right to entered into the agreement dated 16.01.1995. The sale deed was to be executed on or before 15.04.1995 but the plaintiff failed to perform his part of the contract. The plaintiff was never ready and willing to perform his part of the contract. The receipt of Rs. 20,000/- as earnest money was also admitted. It was submitted that Ms. Mamta and others filed a civil suit against defendant No.1. No stay was granted in the said suit and defendant No.1 was hotly contesting the said suit. The plaintiff filed a suit for permanent injunction on 05.09.1995 though at that time remedy of the specific performance was available to him. Therefore, the present suit is barred under order II, Rule 2 CPC. It was pleaded that the plaintiff had failed to perform his part of the contract. Defendant No.1 sold his house in question to defendant no.2 at lower price. Defendant No.2 in the written statement took the plea that he is bonafide a purchaser for valuable consideration.