JASWANT SINGH Vs. MUKHTIAR SINGH

JUDGEMENT

(1.) THE present regular second appeal has been filed against the judgment and decree passed by the learned courts below decreeing the suit filed by the plaintiff-respondent for specific performance of the contract.

(2.) THE suit was filed on the allegation that the agreement was entered into between the parties on 6.11.1999 vide which defendant Nos. 1 to 3 had agreed to sell land measuring 4 bighas in favour of the plaintiff and defendant No. 4 in the ratio of 2:1. It was also alleged that a sum of Rs. 2,40,000/- was paid to the defendant Nos. 1 to 3 as earnest money. However, no date for the execution of the sale-deed was fixed. It was the case of the plaintiff- respondent that he went to the office of Sub-Registrar, Ahmedgarh on 6.6.2000 for execution of sale-deed along with the remaining sale consideration and, therefore, waited for the defendant Nos. 1 to 3 in the compound of Sub- Registrar, Ahmedgarh, but they did not come present. It was also case of the plaintiff that he had got his presence recorded on 6.2.2002 before the Sub- Registrar, Ahmedgarh. But the defendant-appellants did not come present. It was further pleaded in the plaint that defendant Nos. 1 to 3 were requested several times to execute the sale-deed of the suit land, but they did not show their readiness and willingness to execute the sale. It was also pleaded that few days before filing of the suit, the defendants refused to execute the sale-deed in favour of the appellants and were trying to alienate the land to other person. On notice being issued in the suit, defendant Nos. 1 to 3 appeared in Court but in spite of availing number of opportunities they failed to file written statement and ultimately the defence of defendant Nos. 1 to 3 was struck off. Defendant No. 4 was also proceeded ex parte. The agreement to sell was proved by producing marginal witnesses and the plaintiff also stepped into witness-box as PW-2. He also examined PW-3 Suresh Kumar, Clerk, office of Sub-Registrar, Ahmedgarh as well as Head Constable Gurwinder Singh PW-4.

(3.) CONSEQUENTLY , in this regular second appeal, the learned counsel, Mr. Mutneja appearing on behalf of appellants, vehemently contended that as defendant No. 4 had failed to appear in the case, no decree for specific performance could be passed. The contention of the learned counsel for the appellants was that if one of the parties to the contract does not institute the suit, then a decree for specific performance cannot be passed and, therefore, the judgments and decrees passed by the learned Courts below cannot be sustained. In support of this contention, learned counsel for the appellants placed reliance upon judgment of the Hon'ble Supreme Court in Mukesh Kumar and others v. Col. Harbans Waraich and others, 1999(4) RCR(Civil) 687 : 1999(9) SCC 380, wherein the Hon'ble Supreme Court had been pleased to lay down as under :