RSA No.3478 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.3478 of 2008
Date of decision: 10.11.2008
Joginder Singh ......Appellant
Versus
Baljinder Kaur ......Respondent
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. A.K. Khunger, Advocate for the appellant.
Rakesh Kumar Garg, J.
This is plaintiff’s second appeal challenging the judgment and
decree of the Lower Appellate Court whereby while, dismissing the appeal
filed by the Baljinder Kaur-defendant, the Lower Appellate Court has
modified the judgment and decree of the trial Court and has held that
instead of specific performance of agreement to sell Ex.P-1 the plaintiff-
appellant is entitled to a money decree in the sum of Rs.35,000/- with costs
and with interest at the rate of 9% per annum with effect from the date of
execution of the agreement to sell Ex.P-1 till its realization.
Briefly stated, the plaintiff-appellant filed a suit for specific
performance of agreement to sell dated 21.5.1999 against the defendant-
respondent alleging therein that the defendant-respondent agreed to sell
the suit land in favour of the plaintiff-appellant for a sum of Rs.35,000/- and
after receiving earnest money in the sum of Rs.30,000/-, the defendant
executed an agreement to sell dated 21.5.1999 in favour of the plaintiff in
the presence of its scribe and attesting witnesses. The sale deed was to
be executed and got registered by the defendant on or before 25.6.1999
after receiving the balance sale price of Rs.5,000/-. The plaintiff also
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alleged that he was always ready and willing and is still ready and willing
to perform his part of the contract. However, the defendant-respondent
backed out from the agreement. Hence, the suit.
The suit was contested by the defendant-respondent by filing
her written statement wherein she denied having agreed to sell the suit
land in favour of the plaintiff and has denied having executed any
agreement in favour of the plaintiff. She also denied having received any
earnest money as alleged by the plaintiff and with these denials prayed for
the dismissal of the suit with costs.
After hearing the parties and going through the pleadings, the
trial Court decided all the issues in favour of the plaintiff and consequently
vide judgment and decree dated 5.4.2008 decreed the plaintiff’s suit for
specific performance of the agreement to sell dated 21.5.1999 (Ex.P-1) and
directed the defendant-respondent to execute the sale deed in terms of the
agreement in favour of the plaintiff on receipt of balance sale consideration
failing which the appellant was entitled to get the decree executed through
the Court.
Aggrieved by the aforesaid judgment and decree dated
5.4.2008 passed by the trial Court, the defendant filed an appeal. While
dismissing the appeal vide impugned judgment and decree dated
13.8.2008, the Lower Appellate Court modified the judgment and decree of
the trial Court by moulding the relief ie. instead of specific performance of
agreement to sell Ex.P-1, the appellant was held entitled to the alternative
relief of money decree.
Not satisfied with the judgment and decree of the Lower
Appellate Court, the plaintiff filed the present appeal in this Court.
Mr. A.K. Khunger, learned counsel for the appellant has
vehemently argued that the Lower Appellate Court has erred in law while
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moulding the relief to grant alternative relief of money decree in favour of
the plaintiff and denying the decree of specific performance of agreement
to sell Ex.P1 as granted by the trial Court in favour of the appellant.
Elaborating further his argument, learned counsel for the appellant has
argued that there was no reason for the Lower Appellate Court to mould
the relief as it has been proved on record that the plaintiff-appellant was
ready and willing and is still ready and willing to perform his part of the
contract and only a sum of Rs.5,000/- was to be paid by him which was not
a big amount and therefore, the findings of the Lower Appellate Court in
this regard are liable to be set aside.
I have heard learned counsel for the appellant and perused the
record. I find no force in the contentions raised by him. While passing the
impugned judgment and decree, the Lower Appellate Court observed as
under:-
“The readiness and willingness to perform his part of the
contract is necessarily to be proved by the vendee
plaintiff Joginder Singh by leading cogent and
convincing evidence. The suit was filed by the plaintiff
before the learned Lower Court without affixing the court
fee/stamp duty and he could make up the deficiency of
court fee only after obtaining three adjournments for the
purpose, which shows that at the time of filing the suit
the plaintiff did not have money with him even to affix the
court fee. The cross examination of the plaintiff Joginder
Singh as PW2 can be referred to, where he has stated
that on the stipulated date, when he went to the Sub
Registrar Office for getting the sale deed registered, he
had got only Rs.400-500/- with him. He was unable to
RSA No.3478 of 2008 4tell as to how much money he had with him when he
filed the suit for specific performance before the learned
Lower Court. He further admitted that he is a debtor of
the Punjab & Sind Bank also. All these factors create a
reasonable doubt if the plaintiff had financial sources to
pay the balance consideration sum or not. It remains
doubtful if he has been ready and willing to perform his
part of the contract or not. In these circumstances the
court feels that the ends of justice would meet if the
decree passed by the learned Lower Court upholding
the execution of the agreement to sell Ex. P1 is
maintained, but the alternative relief of money decree is
granted to the plaintiff. Accordingly, appeal filed by the
appellant-defendant Baljinder Kaur is dismissed with
costs with a modification that instead of specific
performance of agreement to sell Ex. P1, the
respondent- plaintiff Joginder Singh is entitled to a
money decree in the sum of Rs.35000/- with costs and
interest at the rate of 9% per annum with effect from the
date of execution of the agreement to sell Ex. P1 till its
realization.”
From the above observations, it is clearly made out that the
plaintiff-appellant in his statement admitted that when he went to the Office
of Sub Registrar for getting the sale deed registered, he had got only
Rs.400-500/- with him. He was also unable to tell as to how much money
he had with him when he filed suit for specific performance before the trial
Court. He also admitted that he is a debtor of the Punjab and Sind Bank.
It is also a matter of record that the plaintiff-appellant filed the present suit
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without affixing the Court fee. He could not make up the deficiency in the
Court fee. He did so only after obtaining three adjournments for the
purpose. On appreciation of these facts, the Lower Appellate Court has
recorded a finding of fact that the appellant had no financial source to pay
the balance consideration sum and it remained doubtful if he has been
ready and willing to perform his part of the contract or not and in these
circumstances, the Lower Appellate Court moulded the relief and instead of
granting the specific performance of the agreement Ex.P-1 passed a
decree for the alternative relief of money decree.
Even otherwise, the relief of specific performance of an
agreement is discretionary and equitable. The Lower Appellate Court on
appreciation of evidence has recorded a finding of fact regarding the
financial sources of the appellant to pay the balance sale consideration as
doubtful and thereafter has exercised its judicial discretion not to grant a
decree of specific performance of an agreement in favour of the appellant.
I find no reason to interfere in the aforesaid discretion exercised by the
Lower Appellate Court in regard to grant of alternative relief of money
decree.
For the reasons recorded above, there is no merit in this
appeal. No substantial question of law arises.
Dismissed.
November 10, 2008 (RAKESH KUMAR GARG) ps JUDGE RSA No.3478 of 2008 6 RSA No.3478 of 2008 7