MUMTAZ AHMAD QAISAR Vs. MOZAHIR IMAM

JUDGEMENT

(1.) The Defendants have filed this First Appeal against the ex-parte judgment and decree dated 06.11.2008 passed by the learned Subordinate Judge I, Biharsharif, Nalanda in title suit No. 162 of 2004.

(2.) The Plaintiff-Respondent filed the aforesaid title suit for specific performance of contract dated 21.07.2004 alleging that the Defendants-Appellants were in need of money so, they decided to sell the suit house. The negotiation was finalized on 05.04.2004 for Rs. 2,10,000. On the said date, Rs. 10,000 was paid and it was agreed that the sale deed shall be executed by 31st October, 2004 after receiving balance consideration amount. Subsequently, the Defendants demanded money as they were in dire need and the Plaintiff paid Rs. 87,000 on 15.04.2004 through Draft No. 371965. Again, the Plaintiff paid Rs. 12,000 through Demand Draft No. 766290 on 16.04.2004 and again, the Defendants took Rs. 1,000 and Rs. 10,000 against the grant of receipt. The Plaintiff again paid Rs. 75,000 through Demand Draft No. 756896 on 25.05.2004. As such, the Plaintiff had paid in total Rs. 1,85,000. The further case is that it was agreed that the Defendants shall get house in question vacated from the tenant till July, 2004. Subsequently, the Defendants changed their intention to sell the house in question to the Plaintiff and they disclosed that they would not sell the house under agreement and promised to return Rs. 2,25,000 including Rs. 40,000 as compensation over and above the payment of Rs. 1,85,000 by 31st October, 2004 and in case Defendants failed to return the aforesaid amount, the Plaintiff will become owner of the house in question. The Defendants neither paid the aforesaid amount nor received the balance consideration money for executing the sale deed. Legal notice was sent to the Defendants on 05.11.2004 and lastly, the Defendants refused to execute the sale deed through telephone. The Plaintiff was always ready and is still ready to perform his part of the agreement.

(3.) It appears that after service of notice, when the Defendants did not appear, ex-parte hearing started against them on 11.11.2005 and the Plaintiff examined five witnesses. In the meantime, the Defendants appeared on 26.12.2005 and filed a petition to recall the ex-parte hearing and permit them to contest the case which was allowed on 03.01.2006 on condition of payment of cost of Rs. 150. The Defendants paid the cost but did not file written statement and remained absent till 11.07.2006. Therefore, the Defendants were debarred from filing written statement by order dated 11.07.2006. Subsequently, the Defendants again appeared on 30.08.2007 and filed a petition for permission to contest the case and also to file written statement. The said application was rejected on 26.09.2007 and thereafter, the impugned judgment and decree was passed ex-parte.