RAMBHAROSI Vs. BHAGIRATH

JUDGEMENT

(1.) This appeal has been filed against the order dated 18-8-2012 passed by the District Judge Dholpur dismissing the appellant-plaintiff's (hereinafter 'the plaintiff') application under Order 39 Rules 1&2 Code of Civil Procedure filed along with the suit for specific performance of a purported agreement dated 1-10-2010 between the plaintiff and the respondent-defendant (hereinafter 'the defendant').

(2.) The learned trial court vide its impugned order dated 18-8-2012 has held that the agreement to sell dated 1-10-2010 propounded by the plaintiff did not prima facie make out a case for the reason that it was neither stamped nor registered nor notarised. The trial court further held that the thumb impression of the defendant Bhagirath was denied by him and that further ground for suspicion as to the agreement to sell propounded lay in the factum that witnesses to agreement dated 1-10-2010 did not detail their address. In these circumstances the learned trial court found that aside of prima facie case for the plaintiff being not made out, balance of convenience and irreparable injury were also absent for the plaintiff-applicant in the event interim directions as sought were not to be granted.

(3.) Mr. Manish Sharma, learned counsel appearing for the plaintiff submitted that in terms of the proviso to Sec. 49 of the Registration Act, 1908 an agreement to sell is not required to be registered. He submitted that the lacuna with regard to agreement dated 1-10-2010 not being stamped can be and will be rectified by the plaintiff by resort to proviso to Sec. 35 of the Rajasthan Stamp Act, 1994 on payment of requisite penalty. He submitted that the agreement was duly drawn and signed by an Advocate Ramesh Chand Jha as also signed by two identifiable witnesses Rakesh and Laxmi Narayan. He submitted that it is not unusual that a vendor denies his signatures or thumb impression on an agreement to sell and nothing can turn on such a denial alone. Learned counsel for the plaintiff further submitted that a sum of Rs.90,000.00out of Rs.100,000.00agreed as consideration between the plaintiff vendee and the defendant vendor was paid by the plaintiff and receipted by the defendant under a receipt no doubt denied. It is submitted that in a suit for specific performance preservation of property is fundamentally important lest a judgment and decree in favour of the plaintiff if subsequently passed is rendered incapable of execution.