SUKHDEV MITTAR Vs. RAMESHWAR DASS GUPTA

JUDGEMENT

(1.) This is a defendant's appeal and has been directed against the Judgment and decree dated 1.6.1998 passed by Additional District Judge, Ferozepur, who affirmed the Judgment and decree dated 25.11.1994 passed by the trial Court vide which the suit of the plaintiff-respondent for possession by way of specific performance was decreed. Both the courts have gone against the defendants for the reasons given in the Judgments and I need quote the same in this order.

(2.) Two folds contentions were raised by the learned counsel for the appellants : (1) That the agreement Ex.P.1 was determinable at the instance of either of the parties and in this case the defendant-appellants had repudiated the contract and in these circumstances the suit for possession by way of specific performance could not be filed. At the most the plaintiff was entitled to the earnest money besides Rs. 5,000/- as fine. (2) That the defendants by deriving the power under the agreement Ex.P-1 gave the notice in writing to the plaintiff which was received by the plaintiff-respondent on 12.9.1998, still he filed a suit for permanent injunction on 14.9.1998 and in these circumstances his present suit for possession by way of specific performance is barred under Order 2 Rule C.P.C.

(3.) I have considered the submissions raised by the learned counsel for the appellants and in my opinion these are totally devoid of any merit. The contents of agreement Ex.P-1 have been read by me with the assistance rendered by the learned counsel for the parties. The intention of the parties can be gathered without any variation or without giving any other meaning to the agreement itself. It was agreed by the defendant No. 1 that he would execute the sale-deed on or before 20.9.1988. There was also a clause in the agreement that the vendee will be entitled to the refund of the amount of Rs. 5,000/- in addition to the penalty, but this does not detract the plaintiff not to sue for possession. It is true that the plaintiff received the notice on 12.9.1988, but it is the contract for the sale of immovable property where the time was never the essence of the contract. In these circumstances, the plaintiff could wait upto 20.9.1988 which was the date of performance of the sale deed as agreed upon between the plaintiff and defendant No. 1. Prior to 20.9.1988 the plaintiff could not sue for possession and at that time he could only file a suit for injunction with a prayer to restrain the appellant No. 1 from alienating the suit property. The moment the cause of action for the specific performance accrued on 20.9.1988 he could file a suit for possession by way of specific performance. The cause of action of the injunction suit was totally different than the one which was included in the suit for specific performance. It may also be mentioned here that the suit for injunction which was filed by the plaintiff was withdrawn by him on 17.1.1989 while the suit for specific performance was instituted on 20.12.1988. Even this will not make a difference as I have already stated above that the cause of action of the injunction suit was totally different and independent from the suit for possession by way of specific performance. In this regard reliance can be placed on Kapoor Singh v. Surinder Singh, (1993-2)104 P.L.R. 18, where the facts are practically identical. The learned counsel for the appellants relied upon a Judgment of this Court Surjeet Kumar v. Anil Kumar, (1997-3)117 P.LR. 636. The facts of the cited case are totally different. When the suit was filed in the cited case the cause of action for possession by way of specific performance had already matured in favour of the vendee and in these circumstances there was a clear bar under Order 2 Rule 2 C.P.C. When the plaintiff filed the suit for injunction on 14.9.1998, his suit for specific performance could be defeated by the defendant by saying that the time of the performance of the contract is yet to lapse. The defendant cannot take the advantage of his own wrong by unilaterally writing a letter to the plaintiff that he does not want to perform the contract. Sanctity to the contract has to be given by the law courts. It is a case where violation has been made by the vendor with regard to the immovable property and the law is very clear that in such like cases specific performance has to be granted to the vendee unless the case of the plaintiff is covered under Section 14(d) of the Specific Relief Act. There is no dispute with the proposition of law that the relief of specific performance is a discretionary one, but such discretion has to be exercised according to judicial pronouncements and judicial norms. In the present case the defendant's intention appears to be otherwise. He after entering into the agreement of sale with the plaintiff disposed of the property to somebody else which clearly shows that he has no intention to perform and oblige his part of the contract under the agreement which was entered between him and the plaintiff. Both the Courts below have gone against the appellants. I do not see any reason to interfere in the Judgments of the Court below. No merit. Dismissed. No order as to costs.