SUNITA & ORS Vs. RAJENDER SINGH & ANR

JUDGEMENT

(1.) Briefly stated, facts of the case are that plaintiff Rajender Singh had filed a suit against defendants Smt.Sunita - wife, Asha and Vicky @ Neshu - minor sons, Kajal - minor daughter and Smt.Bharto - mother of Sh.Raj Singh - deceased son of Lakhmi Chand, resident of village Bari, Tehsil Ganaur, District Sonepat seeking possession by specific performance of contract.

(2.) As per the case of the plaintiff, Sh.Raj Singh - deceased had entered into an agreement with the plaintiff to sell his agricultural land measuring 3 Kanals 0 marlas i.e. 6 marlas being 6/148 share of the land comprised in Khewat No.12 min, Khata No.17 min, rectangle and killa No.54/9 (7-8), 2 Kanals 14 Marlas i.e. 54/160 share comprised in rectangle and killa No.54/12(8-0), situated in the revenue estate of village Bari, Tehsil Ganaur, District Sonepat on 10/4/2006; that the plaintiff had paid a sum of Rs.4.00 lacs to Sh.Raj Singh - deceased as earnest money; that initially the date of execution of sale deed was fixed as 16/8/2006, however, as 'No Objection' Certificate was required to be issued by late Sh.Raj Singh; the plaintiff had agreed to cooperate for the purpose; that Sh.Raj Singh - deceased could not arrange such certificate within a stipulated period, therefore, with consent of plaintiff and Raj Singh, the date for execution of sale deed was extended firstly to 16/12/2006 and thereafter to 31/1/2007; however, due to non procurement of 'No Objection' Certificate, Sh.Raj Singh avoided the matter on one pretext or the other; that Sh.Raj Singh had filed a civil suit against the plaintiff with a dishonest intention to grab the earnest money; that the said suit was contested by the plaintiff; that Sh.Raj Singh had not agreed to accede to request of the plaintiff to execute the sale deed; that after his (Raj Singh's) death, his wife, children and mother had inherited his estate; that they are bound to execute the sale deed in favour of the plaintiff in terms of the agreement to sell. According to the plaintiff, the legal notices dtd. 10/4/2006, 31/1/2007, 6/4/2009 and 8/5/2009 were issued to the defendants by the plaintiff calling upon them to execute the sale deed in respect of the suit land in terms of agreement entered into between the plaintiff and deceased Raj Singh, predecessor-in-interest of defendants after procuring 'No Objection' Certificate from the concerned department; that the defendants were directed to intimate the plaintiff or his Advocate in writing by one month's prior notice after receipt of 'No Objection' Certificate to execute the sale deed but the defendants did not do so. According to the plaintiff, he was ready to perform his part of contract so as to get the sale deed executed by making payment of balance sale consideration to Sh.Raj Singh during his life time and thereafter the defendants, but the latter dragged their feet in the matter giving rise to a cause of action to the plaintiff to bring the suit in question.

(3.) On notice, the defendants had appeared and defendants No.1 to 4 had filed a joint written statement contesting the assertions in the plaint. Inter alia, they had raised a preliminary objections that suit was not maintainable in the present form and it was time barred; that as per the terms and conditions of the agreement to sell dtd. 10/4/2006, the date of execution for the sale deed was fixed as on or before 16/12/2006 but on that date, the plaintiff failed to get the sale deed executed by paying the balance sale consideration amount; that at request of the plaintiff, the defendants extended the date for execution of the sale deed. According to the defendants, their predecessor-in-interest was ready and willing to perform his part of contract, whereas it was not so with respect to the plaintiff; that the suit of the plaintiff was barred under Order 2 Rule 2 CPC because the suit was subsequent suit, which is not triable in the eyes of law; that the plaintiff could have filed a counter claim in the suit filed by Raj Singh. According to the defendants, no cause of action arose to the plaintiff to bring the present suit; that the plaintiff has no locus standi to file the same; that the suit is bad for non-joinder and misjoinder of necessary parties; that the suit is liable to be dismissed with special costs under Sec. 35(A) CPC. On merits, the defendants repeated on oath the assertions taken in the preliminary objections while refuting the averments in the plaint. They came up with a prayer for dismissal of the suit.