Prem Chandra vs Satish Chandra Gupta

Instant second appeal under Section 100 of the CPC has been filed against the judgment and decree dated 15/04/2024, passed by Additional District Judge Court No.7, Lucknow, in First Appeal No.60339 of 2018, whereby a aforesaid appeal filed by the plaintiff was allowed, setting aside the judgment and order dated 30/10/2018 passed by the Civil Judge (Senior Division), Mohanlalganj, Lucknow, whereby the trial court directed refund of earnest money along with 8% annual interest and relief of specific performance of agreement to sale has been rejected. .

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Learned counsel for the appellant submits that the plaintiff/respondent has filed Original Suit No.6 of 2012 before the court of Civil Judge (Senior Division), Mohanlal, in respect of Khasra No.640chha, 640cha situated at village -Moharikala, Pargana & Tehsil Mohanlalgan, District Lucknow, total area 0.506 hectare regarding which an agreement to sale was executed by the defendant. However, no possession was given to the prospective vendee. According to the plaintiff, he has paid Rs.2,00,000/as an earnest money, out of total sale consideration Rs.16,00,000/- on 16/02/2009. It was also stipulated in agreement to sale that the sale deed will be executed by the defendant owner after taking permission from the competent authority. The learned trial court rightly dismissed the suit of the plaintiff but directed the defendant to pay Rs. 4,20,000/- to the plaintiff with 8% per annum interest within a month of the judgment.

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Feeling aggrieved by the judgment of the trial court, the plaintiff filed First Appeal before the court of the District Judge, which was allowed by impugned judgment and order dated 15/04/2024, and the plaintiff's suit was decreed, and the defendant-appellant has been directed to execute the sale deed within six months in compliance of agreement to sale dated 16/02/2009, failing which the plaintiff will be entitled to get the sale deed executed through the court. The land was declared non-agricultural vide order dated 15.06.2011 passed by Deputy Collector, Mohanlalganj, Lucknow.

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Learned counsel for the appellant/defendant submits that there are certain legal issues involved in the matter and due to legal impediments in respect granting of decree for specific performance of contract in relation to the property in suit. He also submitted that the land was acquired by Avas Vikas Parisad during pendency of the suit and the suit property belongs to a member of the Scheduled Caste, therefore, for want of requisite permission from the District Magistrate (Collector), the sale deed could not be executed. He also argued certain legal and factual points, which are mentioned in the grounds of appeal.

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The appeal is admitted on following substantial questions of law:-

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(i) Whether lower Appellate Court committed error of law that if Section 28 and 29 of U.P. Awas and Vikas Parishad Act is equivalent to Section 4 and 6 of Land Acquisition Act, then in view of notification u/s 28 & 29 of U.P. Awas and Vikas Parishad Act, the decree of specific performance legally can not be passed whereas by operation of said notification, the appellant would be restrained from alienating the property in question?

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(ii) Whether Lower Appellate Court committed error of law as if agreement to sale is void ab-initio, being violative of Section 157AA of U.P.Z.A.L.R. Act, then same can be enforced and decree of specific performance can be granted?

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(iii) Whether Lower Appellate Court committed error of law

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while decreeing specific performance of agreement to sale without following the specific terms/conditions of agreement although said conditions was not fulfilled?

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(iv) Whether Lower Appellate Court committed error of law while setting aside decree of trial court that contract/agreement provides condition that in case any hurdle comes, the respondent has right to get refund of the amount paid to appellant as per Section 16(A) of Specific Relief Act as the respondent may be compensated in terms of money than decree for specific performance of contract?

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(v) Whether Lower Appellate Court committed error of law while ignoring the legal position that if the land has been acquired under the provision of law (i.e. U.P. Awas Vikas Parishad Act u/s 28, 29) then decree of specific performance of agreement/contract can not be granted?

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(vi) Whether Lower Appellant Court committed error of law while ignoring the proposition that if by operation of law, any contract comes within the purview of section 56 of Contract Act due to supervening impossibility or illegality of the act agreed to be done and is covered under the doctrine of frustration then such contract cannot be enforced/performed between the parties?

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(vii) Whether Lower Appellate Court committed error of law while decreeing the suit that specific performance without addressing the point that decree cannot be passed in favour of respondent/plaintiff without compliance of the terms of the contract and without obtaining permission of sale by the SDM u/s 157AA of U.P.Z.A.&L.R. Act which is statutory requirement?

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