HARI SINGH Vs. GURDIAL SINGH

JUDGEMENT

(1.) Unsuccessful plaintiffs Hari Singh and Darbara Singh sons of Shri Gurnam Singh, have filed the present appeal against the Gurdial Singh, Kaur Singh and Ajmer Singh, respondent No. 1 to 3, respectively and it has been directed against the judgment and decree dated 19.12.1979, passed by the Court of Additional District Judge, Bhatinda, who affirmed the judgment and decree dated 28.10.1978, passed by the Court of Sub Judge, 1st Class, Bhatinda who dismissed the suit of the plaintiffs for specific performance.

(2.) The brief facts of the case are that plaintiffs filed a suit for possession of agricultural land measuring 11 marlas 3 marlas, through specific performance of the contract dated 7.3.1974, by getting a regular sale deed executed by defendant No. 1 Gurdial Singh or in the alternative for the payment of Rs. 2,000/- along with interest at the rate of 1 per cent per annum till realisation. The case set up by the plaintiffs was that defendant No. 1 Gurdial Singh had entered into an agreement of sale dated 7.3.1974. Vide this agreement, he agreed to sell his agricultural land measuring 11 Kanals 3 Marlas for a sum of Rs. 11,430/- and as per the terms of the agreement the sale deed was to be executed on or before 22.4.1974. The defendant No. 1 received a sum of Rs. 1,000/- as cash from the plaintiff as earnest money and agreed to accept the balance at the time of the execution of the, sale deed after adjusting Rs. 7,000/- (mortgage money) as the land was under mortgage with defendants Nos.2 and 3. The defendant No. 1 also agreed that in case he commits default to perform his part of the contract, the plaintiffs will be entitled to get the sale deed executed through Court. The plaintiffs were also given the right to claim Rs. 2,000/-. In case the plaintiffs committed default the defendant was to forfeit the earnest money paid by the plaintiffs. Defendant No. 1 decided not to sell the property to the plaintiffs and started negotiations for the sale of the suit land with defendant Nos.2 and 3. The plaintiffs came to know about it and they filed a suit for specific performance of the contract on 9.4.1974 against all the defendants and they obtained a temporary injunction. The plaintiffs further stated that they appeared in the office of the Sub-Registrar on 22.4.1974 and they waited for defendant No. 1 but he did not turn up nor he executed the sale deed in their favour. It is further alleged by the plaintiffs that the plaint dated 9.4.1974 of the earlier suit was defective one and it did not disclose any cause of action. The trial Court instead of rejecting the plaint, dismissed the suit of the plaintiffs being premature and on account of non-disclosure of the cause of action. The plaintiffs under the circumstances could not file the second suit in a proper form after the date fixed in the agreement had expired for the execution of the sale deed. The plaintiffs could file an appeal against the decree dated 31.5.1976 passed by the Trial Court. The learned District Judge accepted the appeal and rejected the plaint under Order 7 Rule 11 C.P.C. and the decree dated 31.5.1976 was set aside. The plaintiff were always ready and willing to perform their part of the contract. It was further pleaded by the plaintiffs that defendant No. 1 executed the sale deed in favour of defendants No. 2 and 3 on 11.6.1976 for a fictitious consideration of Rs. 11,000/-. Defendants No. 2 and 3 fully knew about the agreement dated 7.3.1974 executed in favour of the plaintiffs by defendant No. 1. The sale deed dated 11.6.1976 was executed by defendant No. 1 in favour of defendant No. 2 and 3 with a mala fide intention. The plaintiffs could not file the suit for specific performance of contract earlier because of their previous suit which was dismissed by an illegal order and as such there was a bona fide mistake on the part of the plaintiffs. The plaintiffs had to file an appeal to get the illegal order of dismissal set aside and, therefore, the plaintiffs are entitled to exclude the time spent in the prosecution of the prior suit and the appeal because the same were prosecuted with due diligence and all bona fides in good faith. The plaintiffs in these circumstances prayed for a decree of possession against the defendants No. 1 to 3 and in the alternative they prayed for the recovery of Rs. 2,000/- by way of damages along with interest.

(3.) Notice of the suit was given to the defendant. Defendant No. 1 contested the suit by stating that the suit is hopelessly barred by limitation and as such it is liable to be dismissed; that the suit is not maintainable; that the plaintiffs have got no cause of action. According to defendant No. 1 he never executed any agreement; that the plaintiffs might have obtained his signatures or thumb-impression due to fraud as defendant No. 1 is an uneducated person. It was also stated by the defendant that plaintiffs filed a suit for possession on 9.4.1974 but the learned Court refused to give the discretionary relief and the plaint dated 9.4.1974 did not disclose the cause of action. Even in the ground of appeal, the plaintiffs admitted that the plaint does not disclose the cause of action. The plaintiffs are not entitled to the exclusion of the time spent in the previous litigation and it will amount to take away the valuable right of the defendant. The plaintiffs never acted in good faith nor they prosecuted the suit with due diligence.