Lala Sumer Chand Goel (Dead) through L.Rs. vs Rakesh Kumar

U.S. Tripathi, J.—The defeated defendant has preferred this second appeal against the judgment and decree dated 23.3.1984 passed by Sri K, K. Srivastava. the then learned Additional District Judge, Saharanpur in Civil Appeal No. 337 of 1980 confirming the decree of specific performance passed by trial court and also awarding decree of recovery of Rs. 500 arising out of Original Suit No. 10 of 1979.

The respondent Rakesh Kumar. (hereinafter, called the plaintiff) filed suit against original appellant Lala Sumer Chand Goel. [hereinafter called the defendant) for specific performance of contract dated 9.9.1975 executed by defendant in favour of plaintiff and for recovery of Rs. 500 on the ground that the defendant Lala Sumer Chand Goel entered into a contract of sale with the plaintiff on 9.9.1975 to sell the property detailed at the foot of the plaint for a sale consideration of Rs. 4.000. The plaintiff paid whole sale consideration of Rs. 4.000 to the defendant on 9.9.1975 and the defendant in lieu of it executed an agreement to sell. The defendant also handed over possession of the disputed property to the plaintiff. The sate deed was to be executed after obtaining permission for sale and defendant had to Inform the plaintiff regarding permission. The plaintiff had also showed himself the holder of general power-of-attorney on behalf of his real brother Dharam Chand and had also right to transfer the share of Dharam Chand. After execution of the agreement deed, the plaintiff met Dharam Chand. who informed him that he had not executed any power-of-attorney in favour of plaintiff. Thereafter, plaintiff demanded from the defendant the said power-of-attomey. but he evaded and failed to show on the ground that it was lost somewhere. The plaintiff had to pay a sum of Rs. 500 to Dharam Chand regarding his share. Dharam Chand also executed a deed on 13.9.1975. The defendant assured to execute sale-deed in respect of his share in the property in suit excluding the share of Dharam Chand. The defendant neither executed sale-deed despite of service of registered notice nor returned the amount of Rs. 500, hence the suit.

The defendant contested the suit. However, he admitted the execution of deed of agreement dated 9.9.1975. after receipt of Rs. 4,000 as sale consideration and also admitted the delivery of the possession of the property in suit to the plaintiff. The defendant denied that Dharam Chand Goel had any interest or share in the property in suit. He never entered into the agreement to sell on behalf of Dharam Chand nor he assured the plaintiff about any power-of-attorney being held by him on behalf of Dharam Chand. The contention to that effect existed in the agreement dated 9.9.1975, was challenged as being a result of fraud and he was not liable to refund Rs. 500. He further contended that the plaintiff never served any notice dated 12.9.1978 calling upon him to execute sale-deed and he never refused to accept said notice. He further contended that defendant had always been ready and willing to perform his part of the contract. On receipt of notice dated 26.9.1978. the defendant went to the office of Sub-Registrar on 30.10.1978, and was ready to execute the sale deed. There he came to know that the office of Sub-Registrar was closed on 1.11.1978. He again went to the office of Sub-Registrar on 2.11.1978 and remained present there during whole day, but the plaintiff did not turn up. Thereafter, on 6.11.1978 the defendant served a notice to the plaintiff Intimating him that the agreement to sell dated 9.9.1975. has been repudiated and cancelled. It had come to end and the consideration received has been forfeited. The plaintiff was further called to deliver vcant possession of the property in dispute within 15 days along with damages at the rate of Rs. 80 per month. Therefore, the defendant was no longer bound by agreement dated 9.9.1975, to execute sale-deed in favour of plaintiff.

The trial court framed necessary Issues arising out of above pleadings of the parties and on considering the evidence of the parties, held that the agreement dated 9.9.1975, had not come to an end by alleged revocation, as the time was not essence of the contract between the parties and no notice dated 8.11.1978, was served on the plaintiff. The agreement dated 9.9.1975. was not proved to be invalid or fraudulent. Dharam Chand was also owner of the half share of the property in suit. The plaintiff was ready and had been ready and willing to perform part of his contract. The defendant himself was not ready and willing to execute to perform the part of his contract and that plaintiff was not entitled to recover a sum of Rs. 500 from defendant in this suit, but could file separate suit for the same. With the above findings, the trial court decreed the suit for specific performance of contract dated 9.9.1975. but dismissed the suit for recovery of Rs. 500.

Aggrieved with the above judgment and decree of trial court, the defendant filed Civil Appeal No. 337 of 1980 and the plaintiff filed Civil Appeal No. 393 of 1980. Both the appeals were taken together and decided by the lower appellate court by a common judgment. The lower appellate court on reappraisal of the evidence of the parties concurred with the trial court that the plaintiff had been ready and willing to perform his part of contract and defendant failed to perform his part of contract and the agreement dated 9.9.1975 could not be repudiated and. therefore, there was no force in the appeal preferred by defendant. Regarding the appeal of the plaintiff, the lower appellate court held that excess payment of Rs. 500 was subject-matter of the same suit and since the plaintiff had paid a sum of Rs. 500 to Dharam Chand regarding his share, which was included in the amount of sale consideration on the wrong assurance of the defendant that he had general power-of-attorney on behalf of Dharam Chand and. therefore, separate suit for refund of Rs. 500 was barred by Order II. Rule 2. C.P.C. and the plaintiff was entitled to recover the above amount of Rs. 500 from the defendant in the same suit. With these findings, the lower appellate court dismissed the Civil Appeal No. 337 of 1980 filed by the defendant with costs throughout and allowed the appeal filed by plaintiff and also decreed the suit of the plaintiff for recovery of Rs. 500 with costs throughout.

Aggrieved with the above judgment and decree the defendant has come up in this second appeal.

This second appeal was admitted on substantial questions of law Nos. 4 and 5 only taken in the grounds of appeal, which are as below ;

(1) (IV) Whether the lower appellate court was right in awarding the decree for recovery of Rs. 500 to the plaintiff in this suit?

(2) (V) Whether the contract of sale was effective in law and whether the appellant was not the sole owner of the property in suit?

Heard the learned counsel for the parties in detail and perused the record.

FINDING

Point No. 1 :

It may be mentioned at the very out set that the plaintiff had sought relief for specific performance of contract dated 9.9.1975 and for recovery of Rs. 500, which he paid to Dharam Chand as the defendant had wrongly told the plaintiff that he was holding power-of-attorney on behalf of Dharam Chand and had got right to enter into agreement to sell regarding share of Dharam Chand also in the property in suit and later on. It was disclosed that Dharam Chand had not executed any power-of-attorney and. therefore, plaintiff had to pay a sum of Rs. 500 to Dharam Chand. The trial court decreed the suit for specific performance of contract dated 9.9.1975 and dismissed the suit for recovery of Rs. 500 on the ground that plaintiff may recover the same in separate suit.

Against the above judgment and decree of the trial court the defendant filed Civil Appeal No. 337 of 1980 and the plaintiff filed Civil Appeal No. 393 of 1980 against the dismissal of the suit for recovery of Rs. 500. The lower appellate court dismissed the Civil Appeal No. 337 filed by the defendant and allowed Civil Appeal No. 393 of 1980 by the plaintiff and decreed the suit for recovery of Rs. 500. The defendant filed this second appeal against the judgment and decree in Civil Appeal No. 337 of 1980 and had not filed any appeal against the judgment and decree in Civil Appeal No. 393 of 1980. However, in this second appeal the plaintiff mentioned in the memo of appeal that appeal was being filed against the judgment and decree dated 23.3.1984 passed by Sri K. K. Srivastava, Additional District Judge. Saharanpur in C. A. No. 337 of 1980, Lala Sumer Chand Goel v. Rakesh Kumar, confirming the decree of specific performance passed by the trial court and decreed for recovery of Rs. 500 arising out of Original Suit No. 10 of 1980. This mention will not mean that this second appeal has also been filed against the judgment and decree in Civil Appeal No. 393 of 1980. In this way, the decree in Civil Appeal No. 393 of 1980 has become final.

Assuming that the point of entitlement of the plaintiff for relief of recovery of Rs, 500 from the defendant in Suit No. 10 of 1979 raised in this very second appeal, the trial court had not held that plaintiff was not entitled to recover the above amount, but had simply held in the finding on Issue No. 5 that for recovery of Rs. 500 plaintiff had to file separate suit. The lower appellate court considered this point in detail and reversed the finding of the trial court on the ground that cause of action for recovery of Rs. 500 from defendant as well as the suit for specific performance of contract was the same, therefore, the separate suit for recovery of Rs. 500 would evidently be not maintainable as it may be barred by provisions of Order II, Rule 2, C.P.C.

I have also considered this aspect. Both the Courts below have recorded a finding of fact that Dharam Chand had share in the property in suit and when the plaintiff came to know that defendant was not holding power-of-attorney of Dharam Chand to enter into transaction regarding share of Dharam Chand also, he separately paid a sum of Rs. 500 to Dharam Chand and got another deed dated 13.9.1975 executed from him. Since the plaintiff had paid entire sale consideration amount to Rs. 4,000 to the defendant, which included a sale consideration of the share of Dharam Chand also, the defendant can be said to have obtained above sum of Rs. 500 regarding share of Dharam Chand by misrepresentation of fact and, therefore, cause of action for recovery of Rs. 500 as well as specific performance of contract was the same.

Rule 2 of Order II, C.P.C. says that every suit shall include whole of the claim which the plaintiff is entitled to make in respect of the cause of action : but a plaintiff may relinquish any portion of his claim in order to bring the suit within jurisdiction of any Court.

Sub-rule (2) of Rule 2 of Order II, C.P.C. says that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

It is thus clear that the claim for recovery of Rs. 500 was based on the cause of action on which Suit No. 10 of 1979 was filed and, therefore, subsequent suit for recovery of Rs. 500 would have been barred by provisions of Order II. Rule 2, C.P.C. Therefore, there is no error in the above finding of the lower appellate court and plaintiff was legally entitled to claim relief of recovery of Rs. 500 from the defendant in the same suit. Point No. 1 is answered accordingly.

Point Wo. 2 :

The learned counsel for the defendant/appellant contended that in the property in suit, the defendant as well as Dharam Chand had share and according to plaintiff, the defendant executed agreement of sale regarding his share as well as the share of Dharam Chand on the ground that he was holding general power-of-attorney of Dharam Chand. That the plaintiff himself alleged that defendant was not holding power-of-attorney of Dhararn Chand as disclosed by Dharam Chand and he had separately obtained an agreement to sell dated 13.9.1975 from Dharam Chand. Therefore, on the own showing of the plaintiff, the defendant was not sole owner of the property in suit and. therefore, the agreement of sale, which related to entire property was not effective under law and could not be enforced.

It is pertinent to mention at the very out set that the plaintiff had filed suit for specific performance regarding the share of defendant only and regarding share of Dharam Chand. he had obtained a separate agreement to sell dated 13.9.1975. which had not been included in the suit. The defendant has admitted in clear and unequivocal terms that he had entered into an agreement with the plaintiff to sell the property in suit for consideration of Rs. 4,000 and got executed agreement deed dated 9.9.1975 after receiving entire sale consideration of Rs. 4.000 and also delivered possession of the property to the plaintiff. No doubt, he contended that insertion of the fact that he was holding power-of-attorney of Dharam Chand was obtained by fraud but this contention was rejected by both the courts below and cannot be re-agitated in this second appeal, as it was pure question of fact. Therefore, the agreement to sell was valid to the extent of share of the defendant in the property in suit and the plaintiff had sought relief for enforcement of specific performance of the said contract regarding the share of the defendant only. Therefore, it cannot be said that agreement to sell was not effective under law.

Moreover, this plea was not specifically taken either before the trial court or before the appellate court and the plea taken before the trial court in paragraph 15 of the written statement was that the allegations that Dharam Chand Goel has any interest or share in the property in dispute were absolutely wrong and denied. The defendant had never entered into an agreement to sell on behalf of Dharam Chand aforesaid nor he assured the plaintiff about any alleged power-of-attorney. He further contended in paragraph 16 of the written statement that Dharam Chand has no right, title or interest in the property in dispute. In view of above pleadings, the defendant cannot be permitted to say that agreement to sell dated 9.9.1975 was defective in law because it also Included the share of Dharam Chand.

The learned counsel for the defendant appellant further contended that defendant had repudiated the contract and, therefore, the plaintiff was not entitled to get it enforced. The alleged repudiation was on the ground that plaintiff had never been ready and willing to perform his part of contract, while the defendant had always been ready and willing to perform. He went to the office of Sub-Registrar on 30.10.1978 and 2.11.1978 while the plaintiff did not turn up and, therefore, by notice dated 8.11.1978 he repudiated the contract.

Both the courts below have recorded a concurrent finding of fact that the plaintiff had been ready and willing to perform his part of contract and the defendant failed to perform his part of contract. Both the courts below also recorded concurrent finding of fact that the contention of the defendant that he repudiated the contract by notice dated 8.11.1978 has not been proved. The above findings are pure findings of fact and also are based on evidence on record and, therefore, cannot be re-agitated in this second appeal. Therefore, the contention of alleged repudiation of contract could not be established by the defendant.

The trial court has also recorded a finding of fact that time was not the essence of contract between the parties and if the sale deed was not executed on the date alleged by the defendant, it cannot be said that it stood repudiated by lapse of time specially when there was no plea that suit was barred by time.

In this way. there is no force in the above contention of the learned counsel for the defendant appellant that alleged contract was repudiated and is not enforceable under law.

The learned counsel for the defendant appellant also contended that in view of Section 20 of Specific Relief Act. relief of specific performance is discretionary and instead of granting relief for specific performance decree for recovery of sale consideration or compensation may be granted as the prices of the property has increased and defendant would be put to loss. This question was also considered by the Apex Court in the case of S.V.R. Mudaliar (Dead) by Lrs. and Others Vs. Rajabu F. Buhari (Mrs) (Dead) by Lrs. and Others, , and it was held as below :

"If merely because the prices have risen during the pendency of litigation, we were to deny the relief of specific performance if otherwise due. this relief could hardly be granted in any case, because by the time the litigation comes to an end sufficiently long period is likely to elapse in most of the cases. This factor, therefore, should not normally weigh against the suitor in exercise of discretion by a Court in a case of the present nature."

Moreover, in the instant case, entire sale consideration was received by the defendant on the date of agreement to sell and he had also delivered the possession of the property to the plaintiff. In the facts and circumstances of the case, the defendant at this stage cannot claim that relief for specific performance be denied on the ground that by lapse of time, price of the property has increased.

In view of above discussions and observations, tt can be safely held that contract of sale was effective in law and both the Courts rightly decreed the suit for specific performance of contract.

In views of findings on point Nos. 1 and 2, the second appeal has no force and is liable to be dismissed.

The second appeal is, accordingly, dismissed with costs throughout.