Dalip Singh vs Banarsi Dass

Paramjeet Singh, J.—Instant regular second appeal filed by the appellant-defendant is directed against the judgment and decree dated 06.01.1986 passed by learned Sub Judge 1st Class, Jagadhri, whereby suit of the respondent plaintiff has been decreed for refund of Rs. 5000/- with proportionate costs and relief for specific performance of contract has been declined, as well as against the judgment and decree dated 01.10.1986 passed by learned Additional District Judge, Ambala whereby appeal preferred by the appellant-defendant against the judgment and decree dated 06.01.1986 has been dismissed and cross-objections filed by the respondent-plaintiff has been allowed and the judgment of the Court of first instance has been modified and suit of the plaintiff has been decreed for specific performance. For convenience sake, hereinafter parties will be referred to as they are arrayed in the Court of first instance i.e. appellant as defendant and respondent as plaintiff.

The detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, brief facts relevant for disposal of this second appeal are that plaintiff filed a suit for possession by way of specific performance against the defendant on the ground that defendant vide agreement dated 15.01.1977 had agreed to sell land measuring 49 kanals 6 marlas situated in Village Malakpur Bangar to the plaintiff for a sum of Rs. 35,000/-. A sum of Rs. 5000/- was paid by the plaintiff to the defendant as earnest money. Defendant agreed to get his land redeemed from the bank and to execute the sale deed on or before 15.06.1977. Defendant executed the receipt about the payment of Rs. 5,000/- in favour of the plaintiff. It is further averred that the plaintiff was and has always been ready and willing to perform his part of contract. He has been keeping with him the entire sale consideration along with expenses of stamp and registration. Plaintiff is still ready and willing to perform his part of the contract. The defendant was asked several times by the plaintiff to honour his commitment but he failed to perform the same.

Upon notice, defendant appeared and contested the suit. He denied the agreement of sale or accepting Rs. 5000/- as earnest money. The alleged receipt executed by him with respect to receipt of amount was also denied. However, it was averred that the agreement to sell and the receipt were got executed from him by fraud and mis-representation, as such, there was no question of performing his part of the contract. It was further averred that two documents were got prepared by the defendant to support the case of his friend Raj Kumar. In the additional plea, the defendant took the plea that two documents were got prepared from him fraudulently.

Plaintiff filed replication controverting the pleas taken by the defendant and reiterating the allegations made in the plaint

On the basis of the pleadings of the parties, the Court of first instance framed the following issues:--

"1. Whether the defendant executed an agreement to sell of the property in question in favour of the plaintiff and received an amount of Rs. Five thousand as earnest money against receipt as alleged in the plaint? OPP

Whether the plaintiff had been and is ready and willing to perform his part of the contract? OPP

Whether the plaintiff is entitled to recover Rs. 35,000/-. from the defendant as damages as alleged in the plaint? OPP

Whether the alleged agreement and receipt were not prepared fraudulently and the same was not binding upon the defendant as alleged in the written statement? OPD

Whether the agreement in question is inadmissible in evidence for want of required stamp? OPD

Whether the defendant is entitled to special costs under Section 35-A CPC? OPD

Relief."

The Court of first instance after perusal of the evidence led by the parties recorded issue-wise findings and decreed the suit of the plaintiff for refund of Rs. 5000/- with proportionate costs and relief claimed for specific performance of the contract was declined vide judgment and decree dated 06.01.1986. Against that, the defendant preferred an appeal, which has been dismissed by the lower appellate Court vide judgment and decree dated 01.10.1986 however, cross objection filed by the plaintiff has been allowed and the judgment of Court of first instance has been modified and the suit has been decreed for specific performance of contract. Hence, this regular second appeal.

I have heard learned counsel for the appellant and perused the record.

At the time of admission, no substantial question of law was framed. During the course of arguments, learned counsel for the appellant referred to the following substantial questions of law which were taken on record vide order dated 09.08.2011:--

"i) The learned trial Court passed the judgment and decree for refund of earnest money along with proportionate costs on the statement made by the counsel for the plaintiff/respondent at the Bar. The respondent never filed any appeal against the said judgment and decree. Whether in the facts and circumstances of the case the lower appellate Court could set aside the said judgment and decree of the trial Court and grant a decree for specific performance of the alleged contract?

ii) Whether the lower appellate Court was justified in law in observing that it could not be believed that the counsel for the plaintiff had agreed to give up the claim of specific performance of the contract, without there being any material on record to contradict the statement duly recorded in the judicial proceedings before the trial Court, more particularly when the plaintiff did not file any appeal against the said judgment and decree of the trial Court nor ever challenged the said statement of fact, recorded the judgment of the trial Court, before the Court in which it was made?

iii) Whether, a statement of fact, mentioned in the judicial proceedings could be challenged by filing cross objections/appeal before the higher Court or whether the plaintiff had to approach the same court for rectification/modification of the statement suffered by him?

iv) Whether the discretion exercised by the trial Court that too on the statement of the counsel for the plaintiff/respondent could have been interfered with by the lower appellate Court while entertaining cross objections?

v) Whether in the facts and circumstances of the case, the judgment and decree passed by the lower appellate Court is sustainable in law as also on facts?

Learned counsel for the appellant vehemently contended that the judgment passed by the Court of first instance has been wrongly modified by the lower appellate Court. Learned counsel further contended that the trial Court has passed the judgment in view of the statement of learned counsel for the plaintiff made at bar before the Court and has recorded a finding on issue No. 3 which reads as under:--

"9. Issue No. 3

The learned counsel for the plaintiff stated at the bar that he was not claiming the relief of specific performance of the contract nor he was claiming any damages but his client would be satisfied if a sum of Rs. Five thousand paid by him along with proportionate cost of the suit was given to him. As already discussed, I have come to the conclusion that the plaintiff had paid a sum of Rs. Five thousand to the defendant at the time of execution of agreement to sell. The plaintiff was thus, certainly entitled to take back his amount. It is not a fit case where any damages for non-performance of the contract should be granted nor it was claimed before me. It, therefore, order that the plaintiff was entitled to take back this earnest money of Rs. Five thousand. The issue is decided accordingly."

Learned, counsel for the appellant contended that lower appellate Court on the basis of surmises and conjectures has come to the conclusion that such a statement could, not have been made by the counsel for the plaintiff before the trial Court and has relied upon the facts of the case only on the ground that the suit has been filed by the plaintiff after spending Rs. 9870/-. Learned counsel for the appellant further made reference to the fact which would have weighed with the Court while recording above finding, viz. admittedly, the agreement is dated 15.01.1977, sale deed was to be executed on or before 15.06.1977 and the suit was filed on 13.06.1980 just a day before completion of three years. Furthermore, the plaintiff did not lead any evidence for four years. This has been noticed in the order of the trial Court. In those circumstances, such statement would have been made. Once the decree is passed by consent, same cannot be challenged in appeal. Learned counsel for the appellant relied upon a judgment of Hon''ble Supreme Court in Daljit Kaur and another v. Muktar Steels Pvt. Ltd. and another, 2014 (1) R.C.R. (Civil) 625.

None appeared on behalf of the respondent to rebut the arguments.

I have considered the contentions raised by learned counsel for the appellant and perused the record.

From the arguments raised by the learned counsel for the appellant, following substantial question of law arises for consideration:--

"Whether judgment and decree of Court of first instance is a consent decree and has been validly passed on the statement of counsel for the plaintiff in Court of first instance and the Court of first instance has exercised the discretionary jurisdiction validly in the facts and circumstances of this case? "

Perusal of record shows that the agreement is dated 15.01.1977 and the sale deed was to be executed as per the terms of the agreement on or before 15.06.1977. The suit was filed on 13.06.1980 after about three years from the date fixed for execution of sale deed and just one day before the expiry of period of limitation of three years. The delay on the part of the plaintiff in filing the suit clearly indicates the intention of the plaintiff. The decree was passed on 06.01.1986 about 10 years after the date fixed for execution of the sale deed. In such circumstances, consent has been given by the learned counsel for the plaintiff which has not been challenged before the Court of first instance by filing any specific affidavit by the plaintiff that he had never instructed his counsel in the trial Court to make such a statement nor review application was filed for review of the judgment and decree of the Court of first instance. Perusal of the power of attorney filed in Court of first instance reveals that plaintiff has authorised his counsel in the Court of first instance to make any type of statement including compromise of the case etc. So, counsel for the plaintiff was competent to make statement on behalf of the plaintiff for refund of earnest money. Any such statement of the counsel for the plaintiff is binding upon the plaintiff. Once the decree has been passed with consent, no appeal lies in view of judgment of Hon''ble Supreme Court in Daljit Kaur''s case (supra). Considering the statement of the counsel and the fact that the suit was filed after considerable delay, the discretion has been exercised by the trial Court in accordance with law and rightly passed the judgment and decree for refund of earnest money and declined relief of specific performance. Delay on the part of plaintiff itself defeats the right of specific performance. In view of above discussion, the substantial question of law is answered in favour of the appellant. Resultantly, instant regular second appeal is allowed and the judgment and decree of the trial Court is upheld and judgment and decree of the lower appellate Court for decreeing the suit for specific performance is set aside. Decree sheet be prepared accordingly. No order as to costs.