RALLI Vs. SATINDERJIT KAUR

JUDGEMENT

(1.) THIS is defendant's second appeal directed against the judgment and decree of the Courts below whereby suit for possession by way of specific performance of sale agreement dated 2. 6. 1979 has been decreed.

(2.) PLAINTIFF (respondent herein) filed suit for possession by way of specific performance of sale agreement dated 2. 6. 1979 of land measuring 13 kanals 14 marlas situated at village Dhandari Kalan, Tehsil and District Ludhiana, on payment of Rs. 2,09,715.00 as remaining sale consideration or in the alternative for the recovery of Rs. 42,000.00 towards earnest money and damages thereon. Suit was filed on the plea that Gahi, Geeto and Meeto were the owners of land measuring 36 kanals 6 marlas and they entered into agreement to sell dated 2. 6. 1979 of land measuring 20 kanals 11 marlas for a sum of Rs. 3,35,610.00 i. e. @ Rs. 27.00 per sq. yard. The land was to be, sold by way of two sale-deeds, to be completed on or before 31. 8. 1979 and 31. 12. 1979. The earnest money of Rs. 21,000.00 was to be adjusted in the second sale deed. The vendors were to get permission from the Prescribed Authority under the Urban Land Ceiling Act and the sale-deeds were to be executed within one month from the date of obtaining the requisite permission. In case the Prescribed Authority declined permission, it was stipulated that the agreement shall stand cancelled and the vendors would be liable to return the earnest money at the rate of 18 per cent per annum as interest. Plaintiffs pleaded that one of the vendors, namely Geeto expected a sale-deed of his share of the land measuring 6 kanals 7 marlas for a consideration of Rs. 1,11,895.00, but the other two vendors manipulated the refusal of permission from the Prescribed Authority under the Urban Land Ceiling Act. The permission was declined on 25. 2. 1981. It was further pleaded that the plaintiff had filed suit for injunction but the same was dismissed being not maintainable. Plaintiff further pleaded that she had been ready and willing to perform her part of the agreement. She thus, prayed that the suit for possession by way of specific performance of agreement of sale be decreed. Defendants, Gahi and Mehta sons of Sawan against whom suit had been filed, contested the suit. In their written statement, they averred that they had always been ready and willing to perform their part of the agreement and to execute the sale-deed in favour of the plaintiff, out it was the plaintiff who always avoided to perform her part of the contract and to get the sale-deed executed. They averred that notices were sent to the plaintiff from time to time for execution or the sale-deed, but the plaintiff failed to perform her part of the contract. It was further submitted by them that even now, they are ready and willing to perform their part of the contract on payment of balance sale consideration. In regard to the permission which was to be obtained from the Authority appointed under the Urban Land Ceiling Act, defendants averred that the said permission was applied for but was refused. Defendants, however, admitted that such a permission was not required for as the land in question being an agricultural land was outside the purview of the Urban Land Ceiling Act. In the prayer clause, defendants submitted that suit for specific performance may be decreed but plaintiff be advised to get the sale-deed executed immediately on payment of balance sale consideration, failing which the amount of earnest money shall be forfeited. Plaintiff instead of offering to pay the balance sale consideration as asked for by the defendants in their written statement, filed replication reiterating that they are ready and willing to perform their part of the contract. trial Court on the basis of pleadings of the parties framed the following issues:

(3.) MR . H. L. Sibal, Sr. Advocate, counsel for the defendants, contended that the approach of the Courts below in not permitting the legal representatives to take the plea regarding the suit being barred by time or barred under Order 2 Rule 2, and Section 11, Code of Civil Procedure, is clearly erroneous. Counsel contended that the pleas on merits taken by the deceased-defendants and the legal representatives remained the same and only additional legal pleas were taken. He contended that the legal representatives can urge all contentions which the deceased could have urged except those personal to the deceased. According to him, there is no legal bar in the way of the legal representative to take the pleas which are not personal to the deceased' defendants. Mr. Sibal contended that the suit for specific performance is barred under Order 2 Rule 2, Code of Civil Procedure, inasmuch as the plaintiff filed suit for injunction on 19. 5. 1981 when a right had accrued to her to sue for specific performance of the contract on account of breach allegedly committed by the defendants in not executing the sale-deed on or before the dates fixed under the agreement. Counsel contended that one of the issues in the suit for injunction was in regard to readiness as willingness on the part of the plaintiff to perform her part of the contract. The finding oh that issue Was returned against the plaintiff and it was held that she was not ready to perform her part of the contract. Counsel contended that in view of the finding recorded on this issue, suit for specific performance cannot be decreed as the finding in regard to willingness on the part of the plaintiff to perform her obligation under the contract would operate as res-judicata. Counsel further contended that the suit is patently barred by time inasmuch as the last date fixed in the agreement for execution of the sale-deed was 31. 12. 1979 and so, the suit for specific performance could have been brought within three years from the date so fixed, but the suit has been brought much beyond the period prescribe under Article 54 of the Limitation Act. It is next urged by Mr. Sibal that the agreement of sale provided that in the event of refusal of sanction by the Competent Authority appointed under the Urban Land Ceiling Act, agreement of sale shall stand cancelled and the plaintiff would be entitled only to the return of earnest money along with interest at the rate of 18 per cent per annum with effect from the date of execution of the agreement. Counsel contended that on account of refusal by the Competent Authority to grant sanction, the contract became frustrated and so, the suit for specific performance was not competent. It is finally urged by Mr. Sibal that the plaintiff is not entitled to the equitable relief of specific performance of the contract.