HARBANS ATMA SINGH Vs. RAMESH KUMAR

JUDGEMENT

(1.) This is a defendant's appeal against whom decree for possession by specific performance of the agreement of sale has been passed by the trial Court.

(2.) The defendant Smt. Harbans Atma Singh wd/o Major General Atma Singh was allotted a residential plot on instalments by the Chandigarh Administration from the defence quota in the year 1967. Regular conveyance deed for the said plot was executed between the defendant and the Chandigarh Administration on 27th July, 1971, Photostat copy of which is Exhibit Dy. According to the terms of the conveyance-deed the transferee was to complete the construction of the house on the said site, in accordance with the Punjab Capital (Development and Regulation) Building Rules, 1952 within one year from the date of issue of allotment order, i.e. from 29th May, 1967, provided that the time limit could be extended by the Estate Officer if he was satisfied that the failure to complete the building within the said time was due to some causes beyond the control of the transferee. It was also provided therein that since the plot was allotted at a concessional price, the transferee was refrained, except with the previous permission in writing of the Estate Officer, from transferring by way of sale, gift, mortgage or otherwise the site or any right, title or interest therein for a period of ten years from the date of completion of construction on the said date. Subsequently, on 31st Dec., 1979 the said plot was resumed for non-construction of the building as per the terms of the conveyance-deed. The transferee approached the Chief Commissioner, Union Territory, Chandigarh by way of revision petition against the said order of resumption. Vide order dated 29th May, 1980, copy Exhibit D.4, the learned Chief Commissioner found that it was a fit case in which relief should be granted, the operative part of the order is as under :-

(3.) It is mainly issue No.4 which has been contested on behalf of the defendant in this Court. The findings on other issues as such except issue No.6 were not challenged. According to the learned counsel for the defendant-appellant the plaintiff was not entitled to the relief of specific performance of the agreement in view of the facts and circumstances of the present case. According to the learned counsel, the resumption order passed by the Estate Office was never set aside as such. The learned Chief Commissioner vide his order dated 29th May, 1980, Exhibit DY only restored the site in order to enable the defendant to raise the construction thereon and that was with the condition that the construction was to be completed by 31st June, 1981, failing which the site was to stand resumed. This period was further extended by the Chief Commissioner vide his order dated 7th July, 1981, for one year more from that date, i.e. up to July, 1982. The defendant had to raise the construction in order to save the plot from its resumption and, therefore, after spending a sum of Rs.4/5 lacs the building was constructed on the said plot within the extended period. The plaintiff had filed an application in this suit for injunction restraining the defendant from raising any construction. Though the application was dismissed by the trial Court, in appeal in the High Court, it was stated on behalf of the defendant that the construction will be raised by her at her own risk. Since the resumption could only be avoided if the construction was raised by her within the time, so this statement was made by her in the High Court. According to the learned counsel as per the terms of the agreement, Exhibit P.1, sale-deed was to be executed on or before 5th June, 1980 or after 30 days of receipt of "No Objection Certificate" from the Estate Office. Since this permission by the Estate Officer was refused and in the absence of any such permission no transfer could be made as per the term of the conveyance-deed as well as the terms of the agreement. According to the learned counsel all these facts were known to the plaintiff at the time of the agreement and knowing fully well about it he entered into an agreement, Exhibit P1, and since the permission had been refused by the Estate Officer, vide order Exhibit DX, dated 11th Feb., 1982, the contract as such was frustrated and was made impossible for its performance. Under these circumstances, argued the learned counsel, the question of specific performance of the agreement did not and could not arise. In support of his contention reference was made to Mrs. Chandnee Widya Vati Madden v. Dr.C.L. Katial, AIR 1964 SC 978, Golab Ray v. Muralidhar Modi, AIR 1964 Orissa 176, Ganga Singh v. Santosh Kumar, AIR 1963 All 201 and Shib Kumar Banerjee v. Rasul Bux, AIR 1959 Cal 302. On the other hand, the learned counsel for the respondent submitted that it is the act and conduct of the defendant on account of which the necessary permission could not be obtained from the Estate Office. No application was filed by the defendant within time provided in the agreement of the sale. An application was filed during the pendency of the suit and since the necessary documents particularly the copy of the agreement of sale were not filed along with the said application, permission was not granted by the Estate Officer. Thus, the defendant could not be allowed to take benefit of her own wrong. According to the learned counsel if the plot could have been transferred to him within time stipulated between the parties the construction could be raised by the plaintiff himself within time allowed by the Chief Commissioner and, therefore, the question of resumption of the plot for non-construction of the building thereon did not arise. Fault, if any, was of the defendant and, therefore, it does not lie in the mouth of the defendant to plead that the decree for specific performance could not be granted. In any case, argued the learned counsel, the defendant has failed to bring on record the necessary facts which may disentitle the plaintiff from specific performance of the agreement. In support of its contention reference was made to Mademsetty Satyanarayana v. G. Yelloji Rao, AIR 1965 SC 1405.