IMPORTANT POINT
Not approaching the Court with clean hands - consequence.

JUDGMENT

Jagdish Singh Khehar, J.

1. Leave granted.

2. The impugned order herein dated 17.10.2011 was passed by a Division Bench of the Delhi High Court (hereinafter referred to as, the High Court), whereby, it dismissed, by a common order, FAO (OS) no. 516 of 2009 and FAO (OS) no. 517 of 2009. Both the aforesaid intra-court appeals had been filed by Sushil K. Chakravarty (hereinafter referred to as, Sushil K.C.) through his legal heirs Arun K. Chakravarty (hereinafter referred to as, Arun K.C.) and Sunil K. Chakravarty (hereinafter referred to as, Sunil K.C.) in respect of agricultural land measuring 8 bighas and 5 biswas with a farm house built thereon alongwith tubewell, electrcitiy connection etc. falling within the revenue estate of village Chhatarpur, Tehsil Mehrauli, New Delhi. This property has also been described as Maharani Rosary. It would be relevant to mention, that the instant impugned order arises out of two suits, one filed by M/s. Tej Properties Pvt. Ltd. (hereinafter referred to as, Tej Properties), bearing CS (OS) no. 2501 of 1997, against Sushil K.C. and the other filed by Sushil K.C., bearing CS (OS) no. 1348 of 1996, against Tej Properties. In order to effectively understand the controversy in hand, it will be necessary to briefly record the details of the litigation between the rival parties, arising out of the two suits referred to above, which eventually led to the passing of the common impugned order dated 17.10.2011.

CS (OS) no. 2501 of 1997

3. Tej Properties filed CS (OS) no. 2501 of 1997 on 13.11.1997 in the High Court, praying for specific performance of an agreement to sell, executed by the plaintiff Tej Properties with the defendant Sushil K.C. on 17.3.1992. The aforesaid agreement was in respect of agricultural land owned by the defendant Sushil K.C., measuring 8 bighas and 5 biswas, with a farm house built thereon along with tubewell, electrcitiy connection etc., falling within the revenue estate of village Chhatarpur, Tehsil Mehrauli, New Delhi. The agreement to sell, is in respect of the same property, which bears the description – Maharani Rosary. The agreement dated 17.3.1992 contemplated a total consideration of Rs.60,00,000/-, out of which a sum of Rs.22,00,000/- was passed on to the defendant as earnest money. Of the said payment, Rs.20,00,000/- was passed on by cheque (comprising of two cheques of Rs.7,00,000/- each, and one cheque of Rs.6,00,000/-). The balance Rs.2,00,000/- was paid in cash. The grievance projected by the plaintiff Tej Properties in the instant suit was, that even though it had approached Sushil K.C. on a number of occasions, requiring him to complete the sale transaction, Sushil K.C. had failed to give effect to the agreement to sell dated 17.3.1992. The plaintiff Tej Properties asserted, that it was willing to perform its part of the contract, but the defendant Sushil K.C. failed to take any steps in complaince with the obligations vested in him, under the agreement to sell dated 17.3.1992.

4. According to the pleadings in CS (OS) no. 2501 of 1997, the necessity of filing the instant suit for specific performance arose after the plaintiff Tej Properties received a notice from the counsel representing the defendant Sushil K.C. informing him, that the defendant Sushil K.C. had filed a suit for declaration and recovery of immovable property, which was subject matter of consideration under the agreement to sell dated 17.3.1992.

5. The defendant Sushil K.C. entered appearance in CS (OS) no. 2501 of 1997 and filed a written statement on 6.3.1998. Thereafter, Sushil K.C. stopped appearing in the said civil suit. He was also not represented through counsel thereafter. Sushil K.C. was accordingly proceeded against ex-parte in CS (OS) no. 2501 of 1997 on 1.8.2000. The plaintiff Tej Properties filed its affidavit of evidence on 9.12.2002. Sushil K.C. died on 3.6.2003, i.e., during the pendency of CS (OS) no. 2501 of 1997. It would be relevant to mention, that the defendant Sushil K.