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2011 Supreme(HP) 2185
2011 (2) H.L.R. 860
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mr. Justice Surinder Singh, J.
Shri Hussan Lal ..Appellant.
Versus
Shri Ramesh Chander ..Respondent.
RSA No.582 of 2001.
Decided on : 17th May, 2011.
Mr. H.K. Bhardwaj, Advocate.
Mr. Ajay Chandel, Advocate.
The main legal point established in the judgment is that a suit for specific performance can be maintainable even in the absence of a written agreement if the parties' conduct indicates the validity of the oral agreement.
Headnote:
specific performance - contract - [Code of Civil Procedure] - [Section 100] - [Summary: The court discussed the identification of the land, maintainability of the suit for specific performance in absence of a written agreement, and misreading and misinterpretation of evidence on record. The court found that the land was properly identified, the suit for specific performance was maintainable, and there was no misreading or misinterpretation of evidence. The court's decision was influenced by the clear identification of the land and the subsequent conduct of the defendant.]
Fact of the Case:
The plaintiff filed a suit seeking specific performance of an oral agreement for the sale of land. The defendant contested the suit, claiming that the agreement was uncertain and the plaintiff had not performed his part of the contract.
Finding of the Court:
The court found that the land was properly identified, the suit for specific performance was maintainable, and there was no misreading or misinterpretation of evidence. The court held that the plaintiff had proved his readiness and willingness to perform his part of the contract.
Issues: The issues included the proper identification of the land, maintainability of the suit for specific performance in absence of a written agreement, and misreading and misinterpretation of evidence on record.
Ratio Decidendi: The court's decision was influenced by the clear identification of the land and the subsequent conduct of the defendant, which indicated the validity of the oral agreement.
Final Decision: The court dismissed the appeal, finding no merit in the defendant's arguments.
SURINDER SINGH, J. Having failed in both the Courts below, the appellant filed the present Second Appeal, which is admitted on the following substantial questions of law:
1. Whether a decree for specific performance can be passed without proper identification of the land?
2. Whether a suit for specific performance is maintainable in the absence of written agreement/ contract?
3. Whether the impugned judgment and decree is result of misreading and misinterpretation of the evidence on record?
2. Precisely the facts giving rise to the present Regular Second Appeal preferred under Section 100 of the Code of Civil Procedure are that the respondent to be referred as ‘the plaintiff’ hereinafter, filed a suit against the appellant now to be called as ‘the defendant’, for seeking relief of specific performance of oral agreement qua “Ahata abadi” marked by letters CDEF shown in red colour in the site plan Ext.P1, as detailed in the plaint, which is half of the total land marked by letters ABCD and a part of khasra No.2758, as per Jamabandi for the year 1976-77, situated near Bhai Jawahar Singh Dharamsala in the Municipal Area of Una town, now referred as ‘the suit land’ by executing sale-deed by the defendant in favour of the plaintiff, in alternative for the recovery of `6,800/- inclusive of interest, or any other relief which the Court deems fit in the circumstances of the case.
3. The case of the plaintiff has been that the suit land is owned by the defendant. On 28th August, 1987 the defendant agreed to sell it in his favour for a consideration of `77,000/-, which was agreed by the plaintiff and he paid an advance amounting to ` 5,000/-and the defendant executed the receipt Ext.P2 to this effect. It is also the case of the plaintiff that the defendant had agreed to bear all the expenses with respect to the registration of the sale-deed to be executed within one year. The possession of the suit land was delivered to the plaintiff on the same day. It is alleged that the plaintiff approached the defendant on different occasions impressing upon him to execute the sale-deed and receive the balance amount, but he put him off on one pretext or the other. Finally, on 4th January, 1990, the plaintiff approached the defendant at his residence at Delhi and requested him to visit Una to execute the sale-deed. The defendant promised to visit Una for the said purpose in the month of February, 1990, but did not keep his commitment. Since the plaintiff has been ready and willing to perform his part of the contract and the defendant adopted dilatory-tactics, as such he sent a legal notice dated 20th March, 1990 (Ext.P3) through his counsel by post, which was received by the defendant and the acknowledgement due, is Ext.P5 signed by him. Despite that the defendant even did not visit Una to execute the sale-deed, but sent his reply Ext.P6 through his Advocate. Finally, the plaintiff decided to file the present suit seeking direction to the defendant to execute the sale-deed and in alternative sought the recovery of the aforesaid amount alongwith interest.
4. The suit was resisted and contested by the defendant and raised the preliminary objections of maintainability and cause of action. However, on merits, he admitted the agreement as alleged for a consideration of `77,000/- and also the receipt of `5,000/-, as earnest money. It is the case of the defendant that he informed plaintiff that it was not possible to sell the suit land adjoining to Rameshwar Kapila till its mutation is sanctioned and after the sanction of mutation in his name he requested the plaintiff to get the sale-deed executed on payment of balance amount of `72,000/- within one month, but he always pretended that his FDRs have not yet matured. Thus, he failed to perform his part of the contract. According to the defendant, the plaintiff could not arrange for the money within one month from the date of sanction of mutation in the name of the defendant, thus the advance amoun
