RADHA KISHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Appellants-plaintiffs have preferred this civil regular first appeal under Sec. 96 of the Code of Civil Procedure, 1908, assailing judgment and decree dtd. 3/12/1990 passed in civil suit No.358/1987 by the Court of Additional District Judge No.2, Jaipur City whereby and whereunder civil suit for specific performance of contract and permanent injunction filed by appellants-plaintiffs has been decided in the manner that instead of decreeing plaintiffs' suit for specific performance and issuing directions to respondents-defendants to execute and register the sale deed, pursuant to their decision dated 15/16/4/1980, in respect of suit shop which is already in possession of plaintiffs, a decree against defendants to refund the full sale amount of Rs.46,441.00has been passed by the trial Court by its own and plaintiffs have been held entitled for interest thereupon at the rate of 12% per annum from the date of suit i.e. 18/10/1985 until payment.

(2.) The relevant facts of the case as culled out from the record are that plaintiffs instituted civil suit for specific performance of contract and permanent injuncstion on 18/10/1985 stating inter alia that plaintiffs were tenant in the suit shop No.5/10 situated in Temple of Shri Anand Bihari Ji at Ramganj Bazar, Jaipur belonging to Devasthan Department. There has been a policy of the State Government to dispose of the unprofitable properties of Devasthan Department and in a meeting of Devasthan Properties Disposal Committee (hereinafter referred as "the Disposal Committee") took place in the month of December, 1973, a decision was taken to dispose of properties of temple of Shri Anand Bihari Ji. Thereafter, proceedings were postponed for a long period and finally, the Disposal Committee under the chairmanship of Revenue Secretary of the State Government, in its meeting dated 15/16/4/1980 took a decision to dispose of the vacant and unprofitable properties of Devasthan Department. Vacant properties were to be disposed of by way of public auction and in respect of properties occupied by tenants, it was decided that rent would be determined according to the norms prescribed under the Rajasthan Nazool Buildings (Disposal by Public Auction) Rule, 1971 by the Public Works Department and cost would be determined at the rate of 200 times of the rent. One month notice would be given to tenants asking to pay the due rent and the cost of property as determined within a period of one month in order to sale the property occupied by tenant and in case tenant remain fail to deposit the determined sale amount, properties would be auctioned after dispossession of the tenant. In pursuance of such decision of the defendants, rent of plaintiffs' shop was determined at the rate of Rs.232.20 per month and value of shop was assessed 200 time of the determined rent. Vide letter dtd. 22/7/1982, plaintiffs were given an offer to deposit due rent arrears of Rs.22,786.29 and the sale price of shop is Rs.46,441.00, totaling Rs.69,187.00 within one month in single installment, then only shop can be sold to plaintiffs. Plaintiffs accepted the offer and deposited the entire demanded sum of Rs.69,187.00 within a period of one month and in one installment on 20/8/1982 vide receipt No.502 of book No.222403. This receipt clearly contends that a sum of Rs.69,187.00 has been received as sale price of shop. Plaintiffs have pleaded that, thus a concluded contract arrived at and completed between plaintiffs and defendants. The possession of shop continued with plaintiffs as part performance of contract, plaintiffs have been ready and willing to get sale deed executed and registered and for this purpose plaintiffs regularly contacted to employees of defendants and offer to deposit the stamp charges but defendants postponed the issue by saying that let the draft sale deed be prepared. Later on, when plaintiffs realized that defendants are not taking interest in execution of the sale deed in favour of plaintiffs rather are trying to sell the shop in question to other person, plaintiffs served one legal notice dated 15/ 19/3/1985 upon defendants, asking to execute the sale deed. This notice was issued under Sec. 80 of CPC and was delivered through registered post as well as under postal certificate (UPC) to all defendants. Thereafter, plaintiffs instituted the present civil suit on 18/10/1985.

(3.) Defendants were served and put in appearance through Advocate on 23/11/1985. Defendants took time for filing written statement but despite giving several opportunities even after giving opportunities on cost of Rs.50,.00 then on Rs.100,.00 defendants did not file their written statement and therefore, their written statement was closed vide order dtd. 19/9/1986. Plaintiffs adduced their evidence and plaintiff- Radha Kishan deposed his statement as Pw.1 and one witness Rampal deposed his statement as Pw.2. No cross-examination was made by defendants from Pw.1 and Pw.2. In documents, letter of defendants dtd. 22/7/1982, through which plaintiffs were informed about decision of the State Government to sell the tenanted shop in question of plaintiffs to them, on deposition of amount of (22,786.29/- + 46,441/-), total 69,187/- within one month was exhibited as (Ex.1), receipt dtd. 20/8/1982, depositing the entire amount by plaintiffs was exhibited as (Ex.2) and legal notice dated 15/ 19/3/1985 was exhibited as (Ex.3), receipts of registry (Ex.4 to Ex.7), acknowledgment receipts (Ex.8 to Ex.10) and UPC receipt (Ex.11) were produced. Plaintiffs concluded their evidence on 22/1/1987. The suit was adjourned for final hearing on various dates. At this stage, defendants moved application dtd. 27/5/1987, asking for opportunity to file written statement. Plaintiffs opposed the application and the trial Court after considering the conduct of defendants dismissed their application vide order dtd. 20/5/1988. Nevertheless, granted opportunity to defendants to lead evidence to rebut the case of plaintiffs. It may be noticed that defendants never challenged order dtd. 19/9/1987 and 20/5/1988, closing their right of written statement and orders have attained finality. As such defendants have not filed any written statement to plaintiffs' suit. Thereafter, defendants produced Radha Kishan as Dw.1 in their rebuttal evidence and produced subsequent decision of the Disposal Committee dtd. 19/2/1987 (Ex.A1), letter of Assistant Commissioner dtd. 31/8/1982 (Ex.A2). Defendants moved an application under Order 18 Rule 17 CPC, asking for crossexamination from witnesses of plaintiffs and this application was dismissed vide order dtd. 12/8/1988. Defendants produced one reply notice which is undated along with an application under Order 13 Rule 2 CPC, which was allowed vide order dtd. 15/5/1989. This reply notice was exhibited as (Ex.A3).