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PUNJAB & HARYANA HIGH COURT
G.C.Mittal and H.S.Bedi JJ.
Gurpreet Singh
Versus
Chatterbhuj Goel
Letter Patent Appeal No. 734 of 1983,
Decided On : APRIL 29, 1991
SPECIFIC PERFORMANCE - GUARDIAN AD LITEM - O. 32, R. 3, C.P.C. - APPOINTMENT OF GUARDIAN - EFFECT OF NON-COMPLIANCE - DISCRETIONARY RELIEF - COMPROMISE - RESCISSION - DAMAGES.
Fact of the Case:
The appellant, a minor, through his guardian Col. Sukhdev Singh, filed a petition under S. 8 of the Hindu Minority and Guardianship Act, 1956, for permission to sell a house. Permission was granted, and Col. Sukhdev Singh entered into an agreement with the respondent for the sale of the house. However, the sale was not executed due to various reasons, including a criminal complaint filed by the respondent against Col. Sukhdev Singh. The parties eventually agreed to a compromise, but the respondent later resiled from the agreement. The respondent filed a suit for specific performance of the agreement, which was decreed by the trial court. The appellant appealed, and the single judge upheld the decree of the trial court.
Finding of the Court:
The court held that the non-compliance with the mandatory provisions of O. 32, R. 3 and 4 of the Code of Civil Procedure made the decree void and must also presume to have caused prejudice to the appellant. The court also held that the discretionary relief by way of a decree for specific performance is not liable to be given to the respondent, considering the hardship to the appellant, the respondent's conduct in rescinding the compromise, and the fact that the respondent had prayed for a decree for damages in the alternative.
Issues: 1. Whether the non-compliance with the mandatory provisions of O. 32, R. 3 and 4 of the Code of Civil Procedure made the decree void? 2. Whether the discretionary relief by way of a decree for specific performance is liable to be given to the respondent?
Ratio Decidendi: 1. The court held that the non-compliance with the mandatory provisions of O. 32, R. 3 and 4 of the Code of Civil Procedure made the decree void and must also presume to have caused prejudice to the appellant. The court relied on the decision of the Calcutta High Court in Nirmal Chandra V/s. Khandu Ghose, AIR 1965 Cal 562, which held that the mandatory provisions of Order 32 had not been complied with and, as such, the decree in the earlier suit was vitiated. 2. The court held that the discretionary relief by way of a decree for specific performance is not liable to be given to the respondent, considering the hardship to the appellant, the respondent's conduct in rescinding the compromise, and the fact that the respondent had prayed for a decree for damages in the alternative. The court relied on the decision of the Karnataka High Court in Ranganayakamma V/s. Govinda Narayan, AIR 1982 Kant 264, which held that a decree for specific performance will not be given merely because it is lawful to do so, and where there is hardship to the defendant, and no such hardship to the plaintiff, the decree will not follow.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the learned single judge, and dismissed the suit for grant of decree of specific performance. However, the court granted a decree for recovery of Rs. 2,25,000.00 as damages, with the stipulation that the appellant shall deposit the same with the Registrar of this Court within a period of six months from the date of this judgment for payment to the respondent.
HARJIT SINGH BEDI, J.
1. On 18/12/1978, Col. Sukhdev Singh, father of the then minor Gurpreet Singh, moved a petition under S. 8 of the Hindu Minority and Guardianship Act, 1956, for the grant of permission for the sale of H. No.1577, Sector18D, Chandigarh, belonging to the appellant. Vide order dated 11/04/1979, this petition was allowed by the Senior Subordinate Judge, Chandigarh and permission was granted to Col. Sukhdev Singh, acting on behalf of the minor to sell the property in question. As a sequel to the permission having been granted, Col. Sukhdev Singh, as guardian of the appellant, entered into an agreement with the respondent on 4/06/1979 for the sale of the house for Rs. 2,85,000.00 The agreement of sale fixed the schedule of payment as also the date by which the sale deed was to be executed. It appears from the evidence on record that the respondent in order to comply with the conditions of the agreement made arrangements for the payment of the sale price and was willing to have the sale deed executed. It has also come in evidence that Col. Sukhdev Singh, on the other hand seems to have developed some reservation with regard to the proposed sale, with the result that it could not be executed within the stipulated period. On 18/07/1979, the respondent filed a suit for permanent injunction against the appellant to restrain him from alienating the house in dispute to a third party as also a criminal complaint for an offence under S. 420, Indian Penal Code, against Col. Sukhdev Singh. The trial Court, however, vide order dated 31/10/1979, discharged Col. Sukhdev Singh in the criminal complaint. Against the order of discharge, the respondent filed Criminal Revision No.1495 of 1979 and during the pendency of the revision petition, the parties on 4-2-1980 agreed to compromise the dispute. The respondent agreed to pay a sum of Rs. 2,45,000.00 plus interest of Rs.1,35,000.00 as also certain payments towards rent. Col. Sukhdev Singh was also required to obtain the sanction from the Estate Office and to execute the sale deed. Thereafter, the criminal complaint as also the civil suit were agreed to be withdrawn. It appears that once again Col. Sukhdev Singh did not faithfully abide by the terms of the compromise with the result that Crl. Revision No. 1495 of 1979 was ultimately accepted by the High Court vide order dated 11/02/1980, and the order of the trial Court discharging Col. Sukhdev Singh was set aside. Against the order of the High Court, Col. Sukhdev Singh filed Crl. Appeal No. 595 of 1980 before the Supreme Court, which was decided on 2/09/1980, and the order of the High Court was set aside and that of the trial Magistrate restored. The respondent was also given the opportunity to file a suit for specific performance of the agreement dated 4/06/1979. The Supreme Court, vide its aforesaid order also directed that the appellant i.e. Gurpreet Singh would return a sum of Rs. 40,000.00 being the amount of earnest money, which he had received from the respondent.
2. In response to the suit filed by the respondent pursuant to the order of the Supreme Court, Col. Sukhdev Singh, as guardian of the minor appellant, filed a written statement controverting the allegations made in the plaint. On facts it was stated that the appellant had always been ready and willing to perform his part of the contract and the default had been committed by the respondent Sh. C.B. Goel. It was also mentioned that the compromise entered into between the parties during the pendency of Criminal Revision No. 1495 of 1979 could not be adhered to because the income-tax clearance certificate was not granted. It was also urged that the agreement to sell dated 4/06/1979, stood rescinded in view of the compromise arrived at between the parties on 4/02/1980 and by the order of the Supreme Court dated 2/09/1980. Objection as to the maintainability of the suit due to the non-compliance with O. 32, R. 3 of the Code of Civil Procedure was taken. The tr
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