OMKAR BISHNOI Vs. RAJENDRA KUMAR

JUDGEMENT

(1.) The instant appeal by the appellant-defendant is preferred under Order 43, Rule 1(d) read with section 104 Code of Civil Procedure to assail order dated 7th of Sept. 2015, passed by Addl. District Judge No. 3, Bhilwara (for short, 'learned trial Court'). By the order impugned, learned trial Court rejected the application of appellant-defendant under Order 9, Rule 13 Code of Civil Procedure for setting aside ex parte decree dated 17th of August 2010.

(2.) Succinctly stated, the facts of the case are that first respondent-plaintiff instituted a suit for specific performance of contract and perpetual injunction against appellant and second respondent Smt. Gatu Bai, inter-alia, on the ground that both of them executed an agreement to sale in respect of their joint khatedari land in three different Khasras bearing No. 7755, 7759 and 7774 ad-measuring 2 bighas 2 biswas, 18 biswa, and 1 bigha 11 biswas respectively, total 4 bighas and 11 biswas. The agreement to sale unfurled that rival parties agreed on a rate of Rs. 57,500 per bigha with total consideration amount to the tune of Rs. 2,51,525. The respondent-plaintiff pleaded in the plaint that as per agreement to sale dated 10th of June 2004, appellant and second respondent accepted earnest money of Rs. 26,101 on the same day and subsequently further accepted a sum of Rs. 64,000. For the remaining amount of Rs. 1 Lakh, it was agreed between the parties that same would be paid at the time of execution of sale deed stipulating the date of registration of sale deed in the agreement as 10th of July 2004. Besides that, it was pleaded in the plaint that the agreement was signed by appellant as the power of attorney of second respondent also, and two other witnesses. In order to claim relief of specific performance of contract, it is averred in the plaint that respondent-plaintiff was ready and willing to perform his part of contract but the appellant and second respondent did not pay any heed to the requests. It is further pleaded in the plaint that appellant and second respondent after accepting part of the consideration amount from respondent-plaintiff, made an affirmative attempt to frustrate his cause by partitioning the agricultural land and mutating it in different names, a significant fact, which was revealed to the plaintiff when he obtained certified copies of the revenue records. With these pleadings, prayer for specific performance of contract as well as perpetual injunction is made. A further relief is also sought by the respondent-plaintiff in the suit for recovery of a sum of Rs. 87,330.50 from appellant with interest @12% per annum.

(3.) The suit was contested by the appellant-defendant as well as second respondent. The appellant in his written statement denied all the allegations made in the plaint. While repudiating the alleged agreement to sale, it is pleaded in the written statement by the appellant that he never signed it and it is a spurious document. A prayer was made for dismissal of the suit while incorporating certain objections also. On behalf of second respondent, a separate written statement was filed stating therein that the agricultural land mentioned in Para 1 of the plaint was partitioned as a consequence of decree dated 28th of Nov. 2006 passed by a Court of competent jurisdiction. Asserting that as per revenue record khasra numbers have changed, she pleaded ignorance about execution of agreement to sale. The second respondent also pleaded in the written statement that she never executed any power of attorney in favour of appellant. Plea of limitation is also incorporated in the written statement.