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1995 Supreme(P&H) 1052
PUNJAB & HARYANA HIGH COURT
N.K.Kapoor, J.
Bhag Ram
Versus
Pala Singh
R.S.A. No. 2337 of 1983,
C.M. No. 10 of 1995,
Decided On : SEPTEMBER 13, 1995
A subsequent purchaser of property is entitled to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff and are bona fide purchasers for valuable consideration, but the plea that the plaintiff must always be ready and willing to perform his part of the contract is only available to the vendor or his legal representatives.
Headnote:
SPECIFIC PERFORMANCE - AGREEMENT OF SALE - BONA FIDE PURCHASER - READINESS AND WILLINGNESS TO PERFORM - SECTION 16(C) EXPLANATION (I) SPECIFIC RELIEF ACT, 1963 - ORDER 2 RULE 2 C.P.C. - ORDER 41 RULE 22 C.P.C. - APPLICATION FOR AMENDMENT OF WRITTEN STATEMENT - MAINTAINABILITY OF SUIT - BAR OF ORDER 2 RULE 2 C.P.C.
Fact of the Case:
Plaintiff filed a suit for specific performance of an agreement of sale dated 9.11.1978, alleging that the defendants agreed to sell the suit land for a sum of Rs. 91,250/- and received a sum of Rs. 10,000/- at the time of execution of the agreement. As part performance of the agreement, defendant No. 1 sold 1/3rd share of the land to the plaintiff vide registered sale deed dated 25.1.1979. The suit was filed with regard to the remaining 2/3rd of the land. The defendants contested the suit, claiming to be bona fide purchasers of the suit land for valuable consideration without any knowledge of the agreement of sale in favor of the plaintiff.
Finding of the Court:
The trial court held that the defendants were bona fide purchasers for valuable consideration and without any notice of the prior agreement of sale. The lower appellate court reversed this finding, holding that the defendants had knowledge of the earlier agreement. However, the lower appellate court upheld the trial court's finding that the plaintiff was not ready and willing to perform his part of the agreement.
Issues: 1. Whether the defendants are bona fide purchasers of the suit land for value and consideration and without any notice of the prior agreement of sale? 2. Whether the plaintiff has been ready and willing to perform his part of the contract? 3. Whether the plaintiff is entitled to specific performance of the agreement to sell dated 9.11.1978?
Ratio Decidendi: 1. The court held that the finding of the lower appellate court that the defendants had knowledge of the earlier agreement was erroneous, as the earlier sale deed did not make mention of the agreement between the plaintiff and defendant No. 1. 2. The court also held that the finding of the lower appellate court that the plaintiff was not ready and willing to perform his part of the agreement was unsustainable, as it was contrary to the statutory provision contained in Section 16(c) Explanation (i) of the Specific Relief Act, 1963, which states that it is not essential for the plaintiff to tender to the defendant or to deposit in court any money except when so directed by the Court. 3. The court further held that the plaintiff's application for amendment of the written statement, seeking to raise the objection of maintainability of the suit on account of bar of Order 2 Rule 2 C.P.C., was meritorious, but it declined to allow the amendment as it would have resulted in reopening of the whole matter and unnecessarily prolonging the trial.
Final Decision: The court upheld the conclusion of the courts below that the plaintiff was not entitled to specific performance of the agreement, but modified the decree to allow the plaintiff to recover a sum of Rs. 10,000/- along with interest from the defendant-vendor.
N.K.Kapoor, J.
1. This is unsuccessful plaintiffs regular second appeal against the judgment and decree of the Additional District Judge affirming in appeal the judgment and decree of the trial Court.
2. Plaintiff filed a suit for specific performance of the agreement dated 9.11.1978 on the ground that defendants agreed to sell the suit land for a sum of Rs. 91,250/- and received a sum of Rs. 10,000/- at the time of execution of agreement. As part performance of the agreement defendant No. 1 sold 1/3rd share of the land as detailed in the agreement to the plaintiff vide registered sale deed dated 25.1.1979. It is with regard to the remaining 2/3rd of the land for which the plaintiff was ever ready and wiling to perform his part of the obligation and the defendants reluctance to admit the plaintiffs claim, which has led to the filing of the present suit. In the plaint, it has been further averred that the plaintiff earlier filed a suit for permanent injunction restraining the defendant from alienating the land to defendant No. 2 or to any other person and also obtained ex-parte ad interim injunction on 23.5.1979. Since defendant No. 1 sold the suit land to defendants 2 and 3 so the suit for injunction was got dismissed as withdrawn and the present suit was filed challenging the sales executed by defendant No. 1 in favour of defendant No. 2 and 3.
3. Notice of the suit was served upon the defendants. Defendant No. 1 did not contest the suit. Defendants 2 and 3 filed written statement and controverted all the material averments made by the plaintiff in the plaint. They denied the execution of the agreement of sale. They further maintained that they are bona fide purchaser of the suit land for valuable consideration without any knowledge of the agreement of the sale in favour of the plaintiff. They further claimed to be in possession of the suit land.
4. On the pleadings of the parties, the following issues were framed :-
1) Whether Pala Singh defendant No. 1 entered into an agreement of sale dated 9.11.1978 in respect of the suit in favour of the plaintiff on receipt of consideration of Rs. 10,000/-? OPP.
2) Whether defendants 2 and 3 are bona fide purchasers of the suit land from Pala Singh defendant for value and consideration and without any notice of the prior agreement of sale? OPD 2 and 3.
3) Whether the plaintiff has been ready and willing to perform his part of the contract? OPP.
4) Whether the plaintiff is entitled to specific. performance of the agreement to sell dated 9.11.1978? If so on what terms and conditions? OPP.
5) What is the effect of purchase of 1/5th share of land by the plaintiff from Pala Singh defendant? OPP.
6) Whether the plaintiff is estopped from instituting the present suit on account of his own act and conduct? OPD.
7) Whether this court has got no jurisdiction to try the suit? OPD 2 and 3.
8) Relief.
5. Issue No. 1 was decided in favour of the plaintiff. Under issue No. 2 the Court held defendants 2 and 3 to be bonafide purchaser for a valuable consideration. Under issue No. 3 it was held that it is not proved that the plaintiff was ready and willing to perform his part of the agreement. Issues 4 and 5 were decided against the plaintiff. Issues 6 and 7 were decided against the defendants. Resultantly, suit of the plaintiff was ordered to be dismissed.
6. The unsuccessful plaintiff challenged the order of dismissal before the lower appellate Court. Findings on issues 2, 3 and 4 were challenged by the appellant. The learned counsel for the appellant with a view to seek reversal of the findings in respect of aforesaid three issues once again highlighted the agreement dated 9.11.1978 vide which defendant No. 1 agreed to sell 73 kanals of land for a consideration and in part performance of this agreement even sold 1/3rd share of 73 kanals of land for a valuable consideration of Rs. 30,000/-. Court noticed that a sum of Rs. 10,000/- paid as earnest amount at the time of execution of agreement was
