Specific performance of a house-sale agreement was challenged on grounds including absence of counsel, disputed execution, hardship and price escalation. The Court rejected the challenges, declined payment at market price and dismissed the second appeal, finding no substantial question of law.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No.3576 of 2013 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.3576 of 2013 (O&M) Date of decision: 16.05.2014
Dayal Singh
....Appellant
Versus
Avtar Singh and another
....Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Mr. Divanshu Jain, Advocate for respondent No.1.
Mr. Harit Sharma, Advocate for respondent No.2.
RAKESH KUMAR GARG, J
Defendant No.1 has filed the instant appeal challenging the judgments and decrees of the Courts below whereby suit for possession by way of specific performance of agreement dated 29.3.1995 filed on behalf of plaintiff-respondent has been decreed.
Plaintiff-respondent filed the instant suit seeking a decree of possession by way of specific performance of agreement dated 29.3.1995, with a further prayer to restrain the appellant from alienating the suit property in any manner and in alternative praying
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for a decree for recovery of ` 6,90,000/- to be passed in his favour and against the appellant.
As per the averments made in the suit, appellant being owner of house No.HM-26, Phase 1 SAS Nagar, Mohali entered into an agreement to sell the said house with the plaintiff-respondent on 29.3.1995 for a sum of 6,00,000/- and received an amount of 2,80,000/- as earnest money and agreed to execute the sale deed on or before 27.5.1995, after having necessary permission and Income Clearance Certificate. It was further averred that appellant received another amount of 35,000/- on 5.5.1995 and extended the date of execution of the sale deed to 27.7.1995 and further received 15,000/- on 9.6.1995 and extended the date for execution of the sale deed till 27.9.1995 and again on receipt of 15,000/- on 27.9.1995 extended the date for execution of the sale deed till 10.11.1995. Thus, the appellant received the total amount of 3,45,000/- as earnest money.
It is the further case of the plaintiff-respondent that he was and is still ready and willing to perform his part of the contract and remained present along with remaining sale consideration in the office of Sub Registrar on the stipulated date i.e.10.11.1995. However, appellant failed to turn up in spite of the fact that respondent-plaintiff sent a telegram dated 6.11.1995 to him informing him to be present before the Registrar on the stipulated date.
It is the further case of the plaintiff-respondent that he got
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issued a notice dated 15.11.1995 upon appellant-defendant to comply with the terms of the notice, but to no effect, hence the present suit.
Upon notice, appellant filed written statement which was amended later on. The appellant controverted the claim of the plaintiff-respondent and raised various preliminary objections to the effect that relief of specific performance cannot be granted because on 29.3.1995 the price of house in dispute was not less than 10,00,000/- and now is not less than 45,00,000/-. On merits, it was averred that appellant never entered into an agreement to sell of house No.HM-26 Phase 1 SAS Nagar, Mohali on 29.3.1995 for a sum of 6,00,000/-. It was denied that appellant received an amount of2,80,000/-. It was further averred that agreement dated 29.3.1995 entry of extension dated 5.5.1995 were forged. Rest of the allegations were denied being wrong and dismissal of the suit was prayed for.
Defendant/respondent No.2 put in appearance through counsel but failed to file written statement.
Replication was filed to the written statement of defendant No.1, in which the plaintiff denied and controverted the plea taken in the written statement reaffirmed his plea taken in the plaint.
From the pleadings of the parties, following issues were
framed:-
i. Whether the defendant had entered into an agreement
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to sell for the disputed house with plaintiff on 29.3.1995 for a sum of Rs.6 lacs after receiving an amount of Rs.2,80,000/- from the plaintiff, as alleged? OPP
ii. Whether the plaintiff is ready and willing and still ready and willing to perform his part of the contract as alleged? OPP
iii.Whether the plaintiff is entitled to the relief of possession by way of specific performance of the agreement to sell dated 29.3.1995? OPP
vi.Relief.
In order to prove their case, parties led oral as well as documentary evidence.
Upon appraisal of the evidence, trial Court decided all issues in favour of the plaintiff-respondent and consequently decreed the suit.
The trial Court after appreciation of evidence recorded a finding that due execution of the agreement to sell in question was proved from the testimony of PW7-Tarlochan Singh, who has categorically deposed to the effect that on 29.3.1995, an agreement to sell Ex.P1 was executed between the parties in his presence and
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that of Rajinder Singh on receipt of 2,80,000/- Dayal Singh endorsed the agreement proved on record as Ex.P1 and receipt was also executed by Dayal Singh proved on record as Ex.P2. He further deposed to the effect that on 5.5.1995 Avtar Singh handed over a cheque of 35,000/- to Dayal Singh and receipt Ex.PW7/A was executed and the date for final settlement was extended to 27.7.1995 and endorsement of the same is Ex.P3.
The said witness further deposed to the effect that on 9.6.2005 Dayal Singh received 15,000/- from Avtar Singh and the date was extended to 27.9.1995 vide receipt Ex.P4. He further deposed to the effect that on 8.9.1995 Dayal Singh received another amount of 15,000/- from Avtar Singh and extended the date for execution of sale deed to 10.11.1995 vide receipt Ex.P5.
Plaintiff also stepped into witness box as PW6 and proved on record Ex.P1 agreement dated 29.3.1995 and reiterating the averments made in the suit.
Not only this, trial Court also noticed the fact that in his cross-examination, Dayal Singh-DW1-appellant admitted that he has taken two drafts from the plaintiff for ` 50,000/- each and deposited the same in his own account. Though in his further cross examination, he also admitted that these two drafts also find mentioned in the receipt dated 29.3.1995 written on the back of the agreement and proved on record as Ex.P2. Plaintiff-respondent also examined Davinder Parshad DW9, document expert who vide his
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report Ex.PW9/A opined that the standard signatures and questioned signatures tally with each other and are of the same person vide his report Ex.PW9/A. It may also be noticed that appellant had also produced handwriting expert DW2-Rana Bansal who opined that the disputed signatures under Ex.P1 did not tally with his specimen or standard signature and were written by two different persons.
Keeping in view the fact that handwriting science is not a perfect science and weak type of evidence and discarding the report of both the experts, the trial Court on the basis of evidence on record and the admission of the appellant held that agreement to sell in question was duly executed by the appellant.
The trial Court further reached to the conclusion that receipt of further amounts by the appellant and extensions in the stipulated date for execution of the sale deed are also proved on record and thus, defendant entered into an agreement to sell for sale of said house for a sum of 6,00,000/- and received 3,45,000/- in total as earnest money and agreed to execute the sale deed on 10.11.1995 in favour of the plaintiff but failed to execute the sale deed on or before the stipulated date.
The trial Court on the basis of affidavit Ex.P7 dated 10.11.1995 attested from Executive Magistrate, Mohali and the telegram dated 6.11.1995 proved on record as Ex.P8, (whereby plaintiff-respondent called upon the appellant to come present for execution and registration of the sale deed) and Ex.P6 notice dated
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15.11.1995 and the fact that major portion of the sale consideration was paid by the plaintiff to defendant held that plaintiff was always ready and willing to perform his part of the contract as there was no reason for him to resile from the agreement. Thus, in the facts and circumstances of the case, trial Court decided all the issues in favour of the plaintiff and against the defendant-appellant.
Feeling aggrieved from the aforesaid judgment and decree of the trial Court, appellant filed an appeal before the First Appellate Court which was dismissed by the lower Appellate Court vide impugned judgment and decree dated 19.8.2013. The relevant part of the judgment reads thus:-
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endorsement Ex.P3. He also deposed that on 9.6.1995 Dayal Singh was further paid Rs.15,000/- vide receipt Ex.P4 and on 8.9.1995 he was further paid Rs.15,000/- vide Ex.P5. Avtar Singh plaintiff of course reiterated his plaint allegations. Being an attesting witness of the agreement and on all the above said payments in the wake of that agreement the evidence of Avtar Singh becomes significant and I find that it does carry evidential weight to lend assurance to plaintiff's case. He was searchingly cross-examined but nothing came out which might show his evidence in any poor light. He is dis-interested witness having no bias against defendant. Dayal Singh however did suggest that he had joined Tarlochan Singh Property Dealer's business as partner and then they fell out, for which reason he had deposed against Dayal Singh. This suggestion could not however be made good by an evidence. No specific deal was suggested to have been transacted jointly by Tarlochan Singh and Dayal Singh and there is nothing what ever to indicate that he ever worked with Tarlochan Singh. There is thus no reason to doubt Tarlochan Singh's corroborative evidence, which being also consistent carries a ring of truth. Yet again, defendant was constrained to admit
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that he has deposited two of the drafts mentioned in endorsement in his bank and the amount thereof was credited to his account. He could not explain away this circumstance, which clearly indicates that he did receive the payments mentioned on the back of Ex.P1. He tried to explain that the amount of Rs.1 lac was owning to him by Tarlochan Singh PW7 and the particulars were given to him in that context. This is shown to be untrue. Firstly, there is no evidence of any amount being owed by Tarlochan Singh to him and secondly, why should those payments have been mentioned as part of earnest money in the receipts. In these circumstances, the learned lower Court was quite right in holding that Dayal Singh did execute the agreement to sell in Avtar Singh's favour and also received the aforesaid payments.
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signatures under Ex.P1 did not tally with his specimen or standard signature. A contrary opinion had also been given by another handwriting expert PW9 Devinder Parshad examined by plaintiff. The science of handwriting is not an exact science and handwriting expert is always supposed to give an opinion which suits the party calling him. The evidence of handwriting expert was also thus rightly discarded. There is nothing to discard the evidence of Avtar Singh that he had always been ready and willing to perform his part of the agreement and which is borne out by his consistent statement and affidavit Ex.P7 which clearly goes to show that on the stipulated date i.e. 10.11.1995 while he remained present in the office of Sub Registrar along with the balance sale consideration, sale deed under agreement Ex.P1 could not be executed for want of presence of defendant Dayal Singh.
14.In these circumstances, I am in full agreement with the
findings arrived at by the learned lower Court on all these issues which stand affirmed coupled with the decision rendered on the basis thereof. As a result the impugned judgment and decree under appeal is upheld and consequently, the appeal in hand stands dismissed. Decree sheet be prepared. Lower Court
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record be sent back forthwith. Appeal filed be consigned to the record room. Pronounced in open Court.”
Still not satisfied, defendant No.1 has filed the instant appeal challenging the judgments and decrees of the Courts below stating that the following substantial questions of law arise in this
appeal:-
In support of his case, learned counsel for the appellant
has vehemently argued that the lower Appellate Court has erred at
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law while deciding the appeal against him in the absence of his counsel. According to the counsel for the appellant, once appeal is admitted and fixed for hearing, the same cannot be dismissed on merits in the absence of appellant or his advocate and could have been dismissed in default only and thus, the lower Appellate Court has committed an error of law and jurisdiction in dismissing the appeal filed by him, in the absence of his counsel and without hearing him. In support of his case, learned counsel for the appellant has relied upon a judgment of Hon'ble the Supreme Court in the case of Secretary, Department of Horticulture, Chandigarh and another vs. Raghu Raj, 2009 AIR (SC) 514. In the aforesaid case, regular second appeal which was filed in the year 1980 and was pending for final disposal after admission for more than two decades was dismissed on merits in the year 2006 in the absence of counsel, who could not remain present and there was no default on the part of the appellant as well as his advocate and when the appellant came to know about dismissal, he filed an application for recalling of the aforesaid order immediately.
Thus, in the aforesaid case, on the totality of the circumstances, Hon'ble the Apex Court found that it would have been appropriate if the High Court had granted the counsel an opportunity to make argument by adjourning the matter and it was observed that once the appeal is admitted and placed for hearing, it could not be decided on merits in the absence of the appellant or his advocate.
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However, in the instant case, it is relevant to notice the various zimni orders passed by the Lower Appellate Court. The zimni orders as produced before this Court by the respondents in C.M.No.5782-C-2014 read thus:-
Present: Appellant Dayal Singh in person Sh. T.C. Gupta, Adv. for resp. No.1 Respondent No.2 ex parte
Today this case was listed for arguments, but the appellant again filed an application for adjournment on the ground that he has again approached Sh. J.S. Bains, Advocate, who earlier was representing him in this case and he has agreed to argue the case if he is given an adjournment of six weeks. Keeping in view the quarrelsome nature of the appellant and his daughter and the fact that he is habitual complainant as well as the contents of the application filed today, the case is adjourned to 7.3.2011 for arguments.
Sd/-
ADJ/Mohali
11.02.2011
Present: Appellant in person
Respondent No.1 with counsel Sh. Rajesh Gupta Adv.
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Respondent No.2 ex parte
In the morning session, the application for posting the present appeal to after the lunch session was moved on the ground that the counsel for the appellant is busy in arguing one Criminal Appeal before the Hon'ble High Court and would be available here only in the after lunch session. The case has been called several times but again the appellant is stating that his counsel has not come present as he is still busy in the Hon'ble High Court for arguments. The case was received on 13.09.2011 by this court as per the transfer order passed by the Ld. District Judge, Ropar and it was made clear to both the parties to instruct their counsel to address the arguments on the date fixed. However, it is observed that the parties are not adhering to the directions of this court. Still in the larger interest of justice, the next date is fixed for arguments for 30.11.11. On request of the parties, the matter will be taken up at sharp 2.00 pm on that date.
Sd/-
ADJ/17.11.11
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Present: Dayal Singh appellant in person
Sh. Rajesh Gupta Adv for respondent No.1 Res. No.2 ex parte
An application for withdrawal of the Vakaltnama of Sh.JS Bains Advocate counsel for the applicantappellant has been moved. In separately recorded statement, Dayal Singh has also stated that he wants to engage a new counsel in the present appeal and the earlier counsel may be permitted to withdraw his Vakaltnama. He has also prayed for grant of time of 1 ½ months for engaging a new counsel for addressing arguments. In view of the application as well as the statement suffered by the appellant in the court, the matter is now adjourned to 11.1.12 for enabling the appellant to engage a new counsel for addressing arguments.
Sd/-
Present: Sh. Dayal Singh applicant in person Sh. Rajesh Gupta Adv for the respondent No.1 Res. No.2 ex parte
Even today, the appellant has not produced any counsel to be engaged by him for addressing
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arguments. In separately recorded statement, he has again stated that he had talked with 3-4 Advocates but they will be available only after Assembly elections are over. He has also submitted that one and half months time may be granted to him. He has also submitted that the brief pertaining to the case is still lying with his earlier counsel Sh. JS Bains Advocate which is yet to be made available to the newly engaged counsel. He has also submitted that he is not in a position to address any arguments without engaging a new counsel. Apart from this, he has orally prayed that stay of the execution may be granted, otherwise, he will move an application before the Ld. District Judge and has also placed in my hand one photo copy of without date application purported to have been moved before the Ld. District & Sessions Judge. Therefore, in these circumstances, when it is the applicant himself who is unable to address arguments and to engage a counsel for addressing arguments on any of the aspect of the present appeal and at the same time, he wants that the stay of the operation of the orders should be granted to him, then they are mutually inconsistent prayers. It
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was explained to the appellant that he should address the arguments either himself or through his counsel so as to enable this court to pass appropriate order, but it appears that he is only interested in getting the stay orders and is deliberately not making any efforts to address the arguments either himself or through his counsel. Once again, the matter is adjourned to 24.02.12 in view of the recorded statement of the appellant with liberty to him to address the arguments himself or through counsel and even if he wants to adduce written arguments, he may do so if so advised.
Sd/-
ADJ/11.1.12
Present: Appellant in person
Sh. HS Bassi Adv for the appellant
On 31.1.12, an application with a prayer for grant of stay from the proceedings of the executing court in an execution application No.4 of 5.2.11 was moved, the notice of which was served upon the respondents Avtar Singh and PUDA. Avtar Singh
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has come present today in the court in person and has suffered statement that his counsel is not available today as he is busy at Mohali in some other case. Sh. Sajjan Singh Sr. Assistant has also come present on behalf of PUDA, Mohali., Sh. HS Bassi Advocate has filed Vakalatnama on behalf of the appellant/applicant. In view of the request made by the respondents and the undertaking given by him that he will produce his counsel for addressing arguments on 6.2.12, the matter stands adjourned to said date for consideration
on the application as well as for hearing arguments on the main case.
Sd/ADJ/4.2.12
Present: Appellant with counsel Sh. HS Bassi, Advocate
Sh. Rajesh Gupta, Adv. counsel for the respondent No.1
Respondent No.2 ex parte
Appeal has been received back from the learned District Judge, Ropar whereby the reference made by this Court has been declined on the ground that the learned counsel for the
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appellant would address arguments on 24.02.2012 in view of his undertaking given in writing before the said court. The perusal of order of learned District Judge, Ropar would show that the appellant as well as the respondent are directed to address the arguments on 24.02.2012. Today, the appellant has come present alongwith his counsel Sh. H.S. Bassi, Advocate and has stated in a separately recorded statement that he wants to change his counsel for addressing the arguments and has prayed for some time. Since the parties have already undertaken to address the arguments on the main appeal on 24.02.2012 vide undertaking given before the Learned District, Ropar, accordingly, the appeal is adjourned to be put up on 24.02.2012 for the said purpose on which both the parties would bring their counsel duly instructed to address the arguments.
Sd/ADJ/8.2.2012
Present: Appellant in person.
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Sh Rajesh Gupta Adv. for the respondent Avtar Singh
The appellant has again submitted that his counsel is not available for addressing the arguments and on the other hand, the Ld. counsel for respondent Avtar Singh has moved an application pointing therein that the appellant himself is delaying the matter by not addressing arguments. At this, the appellant states that arguments will be addressed on 24.02.12 i.e. the date for which, the appeal was fixed for arguments earlier. However, he is pressing upon the court to pass stay orders on the execution. On a query put by this court as to when his counsel is available for addressing arguments, he has not given any date and has reasserted that the arguments will be addressed only 24.02.12. At the same time, he and his three daughters who have also come present in the court are again pressing upon to stay the proceedings but when asked to argue the matter, they pose reluctance. On the last date of hearing, when Sh. HS Bassi Advocate for the appellant and the respondent were present, then a direction was made to address the
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arguments on today on the stay application as well as the main case which is pending since 6.2.2008 and is targeted for disposal in Action Plan-2011 being one of the oldest four cases pending in this category. However the appellant himself is reluctant to assist the court and he only appears to be interested in getting stay orders from the court. Even on earlier dates, the appellant has been acting in utter annoyance to this court as whenever the case is fixed for hearing, he seeks adjournments. However, despite all the persuasions and the adjournments taken by him on undertaking, he has failed to address the arguments and even does not appear to be ready to address the arguments in the near future. It is pertinent to mention here that the file was taken up on the application of the appellant himself. The appellant and his daughters have acted today in derrogance of the court by creating scene. In this view of the matter, the present appeal is referred to the Ld. District & Sessions Judge, Ropar for 8.2.2012 with a request to withdraw the same from
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the list of this court and to entrust the same to some other court. Ahlmad is directed to send the file immediately Parties are directed to appear before the Ld. District and Sessions Judge, Ropar on the date fixed at 10:00 a.m sharp.
Pronounced 6.2.12 Sd/-
(Kanwaljit Singh)
Addl. District 85 Sessions Judge, Ropar
8.2.2012
Present: Sh. H.S. Bassi, Adv for appellant
None for respondent.
Reference perused. Sh. H.S. Bassi, Adv appearing for appellant suffered statement that he will address arguments on behalf of appellant on main appeal on 24.02.2012. In view of this undertaking given in writing by counsel for appellant, reference needs not be accepted. File be sent back to court of Sh. Kanwaljit Singh. Addl. District Judge, Ropar for disposal in accordance with law. File be sent to that court
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today itself. Ld. Counsel for appellant will abide by this undertaking of addressing arguments on main appeal on 24.02.2012 and so will learned counsel for respondent do.
Announced District Judge, 8.2.2012 Ropar
Present: Dayal Singh appellant in person Respondent Avtar Singh in person
Even today no arguments are addressed by the appellant nor he has engaged any counsel till today. Earlier the appeal was pending in the Court of Shri R.S. Rai, Additional District Judge, Mohali but was received on 13.09.2011 by way of transfer by this Court. Even after giving an undertaking before the Ld. District Judge to address the arguments by 24.02.2012 the appellant has failed to comply with his statement as well as directions issued by the Ld. District Judge. The matter is being delayed unnecessarily. The appellant is not cooperating and submits that it is difficult for him to bring a lawyer from Chandigarh to Rupnagar. Accordingly, a
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reference is made to the Ld. District Judge, Rupnagar to withdraw the present appeal from the list of this Court and to entrust the same to some other Court having jurisdiction. The file be sent to the Ld. District Judge, Rupnagar today i.e. 30.07.2012.
16.08.2012:
Present: Dayal Singh appellant in person Respondent Avtar Singh in person
Case received by transfer. It be registered. Dyal Singh appellant has come present in person. Perusal of the file goes to show that on the previous dates when the present appeal was taken up by Appellate Court, one after other adjournment was requested by the appellant himself. In this view of the matter the present appeal could not be disposed of the matter in question is covered under the action plan cases. Today one
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appellant has requested for an adjournment and has stated that that he has not engaged any counsel. In view of the request one last opportunity is granted to appellant as well as respondent to address arguments on this appeal on the next date of adjournment i.e. 22.08.2012.
sd/-
(Manjot Kaur)
ADJ, Mohali
Present: Dayal Singh appellant in person Respondent Avtar Singh in person
Today, this case was listed for arguments, appellant Dyal Singh, who is present in person today in the court has refused to get his presence marked in person and has stated that he wants to move transfer application. In view of the above, case stands adjourned to 29.10.2012 for further proceedings.
Sd/-
(Manjot Kaur)
ADJ, Mohali
21.12.2012
Present: Appellant Dayal Singh in person Respondent Avtar Singh in person
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Appellant Dayal Singh who is present in person today has requested for an adjournment on the ground that he would definitely argue the case in case proceedings of this appeal are not stayed by the higher court. In view of the request, case stands adjourned to 31.1.2013 for
arguments.
Sd/-
(Manjot Kaur) ADJ,
Mohali
Present: Appellant Dayal Singh in person Sh. T.C. Gupta Adv counsel for respondent
Today the appeal was listed for arguments but appellant Dayal Singh request for an adjournment and suffered a statement that he undertakes to argue the appeal himself or through his Advocate after 14.05.2013 the date already fixed by the Hon'ble High Court in Revision Petition No.1164 and in case he did not argue the appeal, the court may decide the appeal itself after going through the file. In view of the above, the appeal stands adjourned to 20.05.2013 for arguments.
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Sd/-
(Manjot Kaur)
ADJ, Mohali 22.02.2013
Present: Appellant Dayal Singh in person
Shri Rajesh Gupta Adv. counsel for respondent Today three applications, one for re-examination of witness namely Avtar Singh, Tarlochan Singh Punia and Rajinder Singh, second for permitting appellant Dyal Singh to engage an Advocate for defending the appeal and not to mark his presence during the course of arguments and third one for adjournment of the appeal sine-die since matter being sub judice before the Hon'ble High Court in Civil Revision No.1164 of 2012 have been filed.
8.12.2011, Dayal Singh appellant, suffered a statement before the court of Shri Kanwaljit Singh Bajwa learned Addl. District Judge, Ropar
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that he may be granted some time for engaging new counsel and one and half months were given to him for engaging new counsel. On 11.1.2012 he again sought time for engaging counsel as he was unable to address arguments. On 8.2.2012, appellant Dayal Singh suffered a statement before the court of learned Addl. District Judge Ropar that he would argue the main appeal on 24.02.2012. Thereafter the present appeal was received by way of transfer in this court on 16.08.2012 and appellant Dayal Singh failed to address arguments in this case. On 22.02.2013, Dayal Singh appellant gave an undertaking that he will argue the appellant himself after 14.05.2013, the date fixed by the Hon'ble High Court in revision petition No.1164 and in case he did not argue in this case, the appeal be decided by the court itself after going through the file.
3. On the last date of adjournment, appellant who is appearing in person and counsel for respondent had been directed to address arguments in this case positively. Today the
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case was listed for arguments. Although, appellant has come present in person and placed on file applications as referred to above, he has not argued his case. The applications submitted by him today coupled with the applications already filed by him on the previous dates would be decided along with the main appeal.
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Singh appellant.
Sd-
(Manjot Kaur) ADJ/Mohali 30.07.2013
Present: Shri J.S. Bains Adv counsel for appellant Shri T.C. Gupta Adv for respondent Today while the case was fixed for orders, power of attorney has been filed by Shri J.S. Bains Advocate for the appellant, repeatedly for an adjournment to advance arguments, it is pertinent to mention over here that on 30.07.2013 after having giving opportunity to the appellant to argue his case, counsel for respondent had been heard and thereafter case stood fixed for orders. However, in the interest of justice and in order to afford opportunity to the appellant to get his case argued, case stands adjourned to 19.08.2013 for arguments of appellant, which could be his ultimate opportunity to advance arguments if any and in the absence of the same, decision would be announced.
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Sd/-
(Manjot Kaur)
ADJ/Mohali 16.08.2013
A perusal of the aforesaid zimni orders would show that in the instant case, it is the appellant himself who has not allowed the Lower Appellate Court to proceed with the appeal. Various zimni orders would show the conduct of the appellant. At one stage, appellant is withdrawing his power of attorney given in favour of a particular counsel and engaging new counsel and after 2-3 dates, the same counsel is engaged again.
Not only this, he also made complaints and sought transfer of the appeal from the board of various Presiding Officers. He also filed an application specifically stating that his presence be not marked in the case, in the absence of his counsel. Even the lower Appellate Court on various occasions, as noticed in the various zimni orders found that appellant was of quarrelsome nature and he was habitual complainant. It may further be noticed that appellant had filed a transfer application and on that application, District Judge, Ropar, had transferred the case to another Presiding Officer making it clear to both the parties to instruct their counsel to address the argument on the date fixed. However, appellant failed to adhere the aforesaid directions of the District Judge, Ropar and again sought the date on 17.11.2011.
Thereafter also, after withdrawing the 'Vakalatnama' in
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favour of the particular counsel, appellant did not engage any counsel for addressing the arguments in the appeal as noticed in the order dated 11.01.2012 and sought adjournment. In fact, a perusal of the aforesaid order dated 11.01.2012 would show that appellant himself was present in the Court and has stated that he was not in a position to address any argument without engaging new counsel and in fact, he tried to over-reach the Court by making a prayer either execution be stayed or he will move an application before the District Judge. Noticing his conduct, the lower Appellate Court had observed that appellant was only interested in getting the stay order and deliberately not making any efforts to address the arguments either himself or through his counsel. Still the case was adjourned giving him an opportunity to adduce written arguments, if he so advised.
From the perusal of the order dated 8.2.2012, it is made out that Presiding Officer had made reference to the District Judge for transfer of the case which was declined in view of the undertaking given in writing before the District Judge on behalf of the appellant that arguments will be addressed on 24.2.2012.
Still appellant came present along with counsel Sh.H.S.Bassi, Advocate stating separately that he wants to change his counsel for addressing the arguments and thus, got the adjournment.
It is pertinent to mention that on 6.2.2012, Sh. Kanwaljit Singh, the then Additional District and Sessions Judge, Ropar who
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was interested with the appeal in question had made a reference to the District and Sessions Judge, Ropar, with a request to withdraw the said appeal from his Court noticing the fact that despite of persuasion and adjournment taken on undertaking that appellant has failed to address the argument and even does not appear in the near future.
Order dated 8.2.2012, which is also on the filed of the District Judge, Ropar clearly shows that Sh. H.S.Bassi, Advocate appearing on behalf of the appellant had suffered statement that he will address arguments on main appeal on 24.02.2012 and in view of the aforesaid undertaking given, reference was sent back. However, no arguments were addressed on behalf of the appellant as thereafter, again he got the date to change his counsel. In the order dated 30.07.2012, the Presiding Officer has clearly stated that appellant is not cooperating for addressing the arguments. Again on 03.10.2012, the case was adjourned as appellant has failed to engage new counsel. On 21.12.2012, no counsel was present in the Court but appellant was present in the Court and he refused to get his presence marked in person and stated that he wanted to move transfer application. Thereafter, again on many dates, appellant did not argue the case. On 22.02.2013, adjournment was sought by suffering statement to argue the appeal himself or through his counsel after 14.5.2013. Thereafter, the appellant move an application for permitting him engaging a new counsel and not to
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mark his presence during the course of argument. Thus, the Appellate Court had no option but to decide the appeal filed on behalf of the appellant on merits vide impugned order. Thus, in the instant case, it is the conduct of the appellant himself because of which the arguments were not addressed before the lower Appellate Court and the appeal was kept pending without any plausible reason.
In view of the various zimni orders passed, appellant cannot blame the Presiding Officer for disposing of his appeal on merits in the absence of his counsel. The facts in the case of Secretary, Department of Horticulture, Chandigarh and another
vs. Raghu Raj (supra) are clearly distinguishable than the case in hand. The aforesaid judgment was given by Hon'ble the Supreme Court in the facts and circumstances of that case and cannot be applied in the instant case.
At this stage following observations of Hon'ble the Supreme Court in the aforesaid judgment itself may also be noticed which read thus:-
27. Now, it cannot be gainsaid that an advocate has no right to remain absent from the Court when the case of his client comes up for hearing. He is duty bound to attend the case in Court or to make an alternative arrangement. Non-appearance in Court without `sufficient cause' cannot be excused. Such absence is not only unfair to the client of the
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advocate but also unfair and discourteous to the Court and can never be countenanced.
In the instant case, appellant has not suffered on account of default or non appearing of his counsel, neither court was unfair to him. In fact, it was the appellant himself who was to blame for his conduct. It is well settled that no litigant can be allowed to waste Court's precious time. Reliance can be placed on order dated 20.5.2009 passed by a Division Bench of this Court in CWP No.18346 of 2005 while dismissing the review petition.
In view thereof, the argument raised on behalf of the appellant is without any merit and is rejected.
Faced with this situation, learned counsel for the appellant has further argued that execution of the agreement to sell in question was doubtful as the same is full of cuttings and interpolations and the same should have been rejected outrightly and a decree for specific performance of such an agreement to sell cannot be allowed. However, a perusal of the document in question, photocopy of which has been shown before this Court would show that the overwriting on the date of the execution has been initialed by Dayal Singh-appellant himself and the said overwriting seems to be in routine. The execution of the agreement to sell in question and the various extensions for execution of the sale deed have been duly proved. In fact, no argument has been addressed before this Court against the findings of the Courts below and thus, the argument as
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raised is rejected.
Learned counsel for the appellant has further argued that he moved an application for leading additional evidence which is necessary for just decision of the case. However, the same has been rejected by the Lower Appellate Court illegally and thus, the impugned judgments and decrees of the Courts below are liable to be set aside on this ground alone.
At this stage, it may further be noticed that separate order dated 19.8.2013 of the lower Appellate Court is also on record whereby application of the appellant for leading additional evidence was rejected.
A perusal of the aforesaid order would show that appellant moved an application dated 6.11.2009 for leading additional evidence seeking permission to summon register of stamp vendor to prove as to who purchased judicial paper upon which the agreement in question was scribed, record from the office of Sub Registrar, SAS Nagar, Mohali to show the details of the sale deed dated 11.9.1995, vide which appellant became the owners of the house. The same was contested by the respondents stating that the aforesaid facts were in the knowledge of the appellant. Appellant filed another application on 25.5.2011 for leading additional evidence to summon record of Court file of civil suit No.316/29.5.1990 decided on 11.2.1993 by the Court of Sh. B.C.Gupta, Civil Judge, Kharar, file of civil appeal No.31 of 31.3.1993 decided on 10.8.1994 by Sh. Baldev
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Singh, Additional District Judge, Ropar, besides re-examination of plaintiff's witnesses. The above additional evidence was sought to be produced on the ground that his counsels had not discharged their duties faithfully. Again the said application was contested stating that the aforesaid litigation was to the knowledge of the appellant from the very beginning and has has not taken any step to produce the same at the time when an opportunity was granted to him.
Appellant filed third application dated 20.5.2013 for leading additional evidence by summoning Court file of civl Suit No.614 of 13.12.1995 titled as Avtar Singh vs. Dayal Singh decided on 10.12.2007 to prove that power of attorney dated 13.12.1995 was not accepted by Sh. Rajesh Gupta, Advocate. The said application was also contested by the respondent stating that the same was not maintainable as the suit giving rise to the appeal was argued on behalf of the plaintiff-respondent by Sh. Rajesh Gupta, Advocate with his consent and in the presence of respondent to which respondent and he had no objection to that.
Appellant filed another application dated 18.7.2013 for leading summoning the concerned stamp vendor along with his register dated 27.3.1995 from whom stamp papers were purchased on which alleged agreement to sell was drafted. However, the above said application was contesting stating that additional evidence is already on the record.
Appellant moved another application dated 24.7.2013, for
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grant of permission to lead additional evidence of Sh. S.S.Jaspal, GPA of M.S.Ahluwalia original owner of house in question. Appellant further moved an application dated 30.07.2013 for re-examination of plaintiff's witnesses. Appellant moved another application dated 27.7.2013 for producing in evidence judicial file and registry of the house in question along with record of civil suit No.316 decided by the Court of Sh. B.C.Gupta on 11.02.1993 and the appeal decided against the said decision on 10.8.1994.
All these applications were decided by the lower Appellate Court observing as under:-
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by him before the lower Court or such evidence is required by the appellate Court to enable it to pronounce judgment or for any other substantial cause. The grounds which have been relied upon by the appellant for grant of permission to lead additional evidence, do not fall within the four corners of Order 41 Rule 27 CPC so as to entitle him to the relief prayed for. It is not case of appellant that lower Court refused to admit into evidence which has been referred to in the above applications. It is also not his case that such evidence was not within the knowledge at the time when he was leading evidence before the lower Court. The evidence which is sought to be adduced by appellant by way of above referred two applications would not further substantiate the cause of the appellant. On the other hand, the interest of justice do require that the above applications be dismissed. The manner in which appellant has all along contested this appeal clearly goes to show that because of moving one application after the other, his intention was to linger on the decision of appeal and nothing else. Appeal was filed on 6.2.2008. Thus, a period of more than
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five years have passed but the appellant has not cooperated with the Court to enable it to decide the appeal. In the said circumstances finding no merit in the above referred two applications for additional evidence, they stand dismissed.”
It may further be noticed that appellant has also filed an application on 30.11.2011 for amendment in the grounds of appeal stating that he was not owner of the property in question on the date of the execution of the agreement to sell and as such was not having any power and legal capacity to enter into alleged agreement to sell. However, the application was dismissed by the lower Appellate Court observing that in para No.1 of the written statement, appellant admitted himself being owner of the said house and therefore, he could not have been allowed to wriggle out of his admission to the prejudice of the plaintiff-appellant at the appellate stage and the application of the appellant for adjourning the appeal sine die on the ground that matter was was sub-judice in before this Court in Civil Revision No.1164 of 2012 titled as Dayal Singh vs. Avtar Singh was dismissed being not maintainable as there were no orders to stay the proceedings.
Para No.14 of the aforesaid order dated 19.8.2013, may also be noticed which reads thus:-
“14. On the last date of adjournment i.e. 16.8.2013 power of attorney had been filed by Shri. J.S.Bains,
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Advocate for appellant requesting for an adjournment to grant him an opportunity to put forth arguments on behalf of the appellant. Today despite the fact that the case has been called umpteen number of times since morning neither appellant nor his counsel has come present. On 30.7.2013, after giving an opportunity to the appellant to put forth his arguments on the various applications filed by him and on the main appeal, counsel for respondent Shri Rajesh Gupta, Advocate was heard and the case stood adjourned to 14.8.2013 for orders. On 14.8.2013 since orders were not ready, the case stood adjourned to 16.8.2013 for orders. On 16.8.2013 Shri J.S.Bains Advocate had put in appearance for the appellant and on his request the case stood adjourned for today i.e. 19.8.2013 for leading arguments from the side of appellant. Today neither appellant nor his counsel put in appearance. Present appeal was filed way back in the year 2008 and since then several opportunities have been afforded to the appellant to argue his case. For one reason or the other, he has been seeking time from the Court and which was given to him. Present appeal is the
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oldest one pending in this Court, also listed in the five years old cases. Since opportunity has already been granted to the appellant to put forth his arguments but he has intentionally not argued the main case and after having heard the learned counsel for the respondent in this appeal, vide my separate detailed judgment of even date, appeal filed by the appellant stands dismissed.”
At this stage, it may further be noticed that neither appellant has raised any substantial questions of law in this regard nor such application for allowing him to lead additional evidence has been filed. Even it could not be shown before this Court as to how the prayer on behalf of the appellant was justified.
Another argument has been raised on behalf of the appellant that on the date of execution of the alleged agreement to sell in question, appellant was not the owner of the house in dispute ad the same was transferred in his name on 27.10.1995 i.e. much after the execution of the alleged agreement to sell dated 27.3.1995 and in view of the aforesaid fact that he was not competent to execute the agreement to sell being not owner of the property in dispute, no decree for specific performance could be passed against him. The argument raised is without any merits and liable to be rejected. In view of the fact that appellant in para No.1 of the written statement has specifically admitted that he is owner of the house in
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dispute.
Another argument has been further raised that the Courts below have ignored the material fact i.e. it is the case of the hardship, appellant has no other house or plot in the area of SAS Nagar or Chandigarh. It is the only house in occupation of the appellant where he is residing. Even if it is held that the agreement to sell has been executed in view of the facts and circumstances of the case, alternative relief was to be granted in favour of the plaintiffrespondent and there was no occasion to decree the suit for specific performance. Again it may be noticed that in his pleadings, appellant has not raised any defence of hardship. It is well settled that plea of hardship cannot be accepted in the absence of any pleadings. Moreover, appellant at the time of execution of agreement to sell in question was well aware of the fact that he was not having any other house and he had agreed to sell the same in his own wisdom and cannot be given any benefit on this account.
In the end, counsel for the appellant has further raised a plea that market value of the suit property was not less than 10 lakhs in the year 1995 and at present when the suit was decreed, its market value is 45 lakhs. Therefore, the Courts below were duty bound to consider this aspect of the agreement to sell as the Hon'ble Supreme Court has held that if the decree for specific performance passed in favour of the vendee and during the said period, the prices have escalated, then the sale deed is to be executed on the basis of
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the existing market price of the property. Counsel for the appellant has cited a judgment in this respect i.e. Satya Jain (died) through LRs and others vs. Anis Ahmed Rushdie (died) through LRs and others 2013(1) RCR (Civil) 369.
Again argument as raised on behalf of the appellant on the basis of the judgment of Hon'ble the Supreme Court as noticed above is liable to be rejected as in the aforesaid case, period of 40 years had elapsed and the Supreme Court had intervened in the said case on its peculiar facts.
It is necessary to notice the following paragraphs of the aforesaid judgment which read thus:-
28. The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the
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experienced judicial mind can perceive without any real difficulty. It must however be emphasized that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. Such a view has been consistently adopted by this Court. By way of illustration opinions rendered in P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi 2007 (2) R.C.R (Civil) 290:2007(2) R.A.J.82:(2007) 10 SCC 231 and more recently in Narinderjit Singh v. North Star Estate Promoters Ltd.2012 (3) R.C.R.(Civil) 16:2012 (3) Recent Apex Judgments (R.A.J) 84: (2012) 5 SCC 712 may be usefully recapitulated. 29. The twin inhibiting factors identified above if are to be read as a bar to the grant of a decree of specific performance would amount to penalizing the plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour. From another perspective it may also indicate the inadequacies of the law to deal with the long delays that, at times, occur while rendering the final verdict in a given case. The aforesaid two features, at best, may justify award of additional compensation to the
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vendor by grant of a price higher than what had been stipulated in the agreement which price, in a given case, may even be the market price as on date of the order of the final Court.”
Thus, Hon'ble the Supreme Court has noticed that by efflux of time and escalation of price of property, by itself cannot be a valid ground to deny the relief of specific performance and the ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty as noticed by this Court in the instant case.
Thus, keeping in view the conduct of the appellant himself in delaying the decision, and the fact that this Court does not find a fit case allowing the prayer made on behalf of the appellant for payment of market price.
No other point was argued.
Thus, no substantial questions of law, as raised, arise in
this appeal.
Dismissed.
May 16, 2014 savita
(RAKESH KUMAR GARG) JUDGE
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3 issues framed by the court
Could the appeal be decided on merits without counsel where the appellant repeatedly obstructed argument despite opportunities?
Could an unpleaded claim of hardship defeat specific performance?
Did escalation in property prices justify directing payment of the current market price?
Colour shows how this judgement treated each authority
Secretary, Department of Horticulture, Chandigarh and another vs. Raghu RajDistinguished¶272
Secretary, Department of Horticulture, Chandigarh and another vs. Raghu Raj, 2009 AIR (SC) 514 · Who else cites this
CWP No.18346 of 2005Relied on¶279
Satya Jain (died) through LRs and others vs. Anis Ahmed Rushdie (died) through LRs and othersDistinguished¶333
Satya Jain (died) through LRs and others vs. Anis Ahmed Rushdie (died) through LRs and others 2013(1) RCR (Civil) 369
Dayal Singh
Avtar Singh
PUDA
RAKESH KUMAR GARG
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
