The courts upheld the principle of specific performance and readiness and willingness of parties to perform their contractual obligations, while also considering the validity of additional evidence and the fraudulent actions of the defendant.

Rajiv Narain Raina, J.:-

CM No. 6069-C of 2015

1. For the reasons stated in the application, the same is allowed and the order dated 23.03.2015 is recalled and the appeal is restored to its original number.

RSA No. 1517 of 2011 (O&M)

2. By consent, the matter is taken on board for final disposal.

3. This is defendant's second appeal in a suit for possession by way of specific performance based on an agreement dated June 14, 2000 to sell agricultural land measuring 48 K 12 M. The date fixed for execution of sale deed was August 03, 2000. While the plaintiffs pressed for execution and were ready and willing to perform their part of the contract, the defendant backed out of the deal which led to filing of the suit. After backing out of the deal defendant-1 vendor who entered into a sale transaction of suit property with defendants 2 to 8 and got a sale deed registered in the latter's favour on August 07, 2000 of the same property. This sale deed was challenged in the suit in addition claiming specific performance of contract. It was prayed that the sale deed be declared illegal and null and void and not pleading any title on the vendees. These defendants are bound to join defendant-1 to get the sale deed executed in favour of plaintiffs in terms of the sale agreement dated June 14, 2000. The trial court framed five issues including relief. Parties went to trial and led their evidence both oral and documentary to prove the agreement to sale. The presence of the plaintiffs was duly marked in the office of the Sub Registrar by scribing affidavit which was attested by the Executive Magistrate but the defendant-1 failed to show up or get his presence marked. Defendant-1 set up a story that he was present in the office of the Sub Registrar, Kalanaur on the target date August 03, 2000 and in support he produced Ex. PW-8/B relevant extract from the register maintained by the office when an entry has been made at 4.30 PM, however, in the remaining entries on the register time of entry is not recorded which creates doubt regarding its genuineness. To the contrary, the entry of the plaintiffs on the same day is without recording of time. The court disbelived the correctness of the entry. The only issue that was hotly debated was to readiness and willingness of the plaintiffs to perform their part of the contract. To prove this, plaintiffs examined three witnesses that the sale agreement was valid. They proved that they were ready and willing to perform their part of the contract and had sufficient money to pay the balance sale consideration.

4. Both the courts have agreed with the case of the plaintiffs that there was a valid contract voluntarily signed by both the parties but the defendant had backed out of the deal even though the plaintiffs were ready and willing to execute and register the sale deed and pay the balance sale consideration. They remained throughout ready and willing to perform their part of the contract till the date of filing of the suit and are prepared still to do so since they have sufficient funds. It may be noted that land was agreed to be sold at Rs. 50,000/- per killa in the year 2000 and for which an amount of Rs. 1,10,000/- was paid in advance as part performance. Concurrent findings of fact have been recorded that the suit was eminently fit to decree and I have no reason to take a different view after the courts a quo have appreciated the evidence on record and returned proper findings thereon, the re-look of which also confirms the view of this Court that there is no error of law or fact in the judgments and decrees of the courts below.

5. Mr. Vipin Mahajan appearing for the appellant argues that the court of first appeal exercised jurisdiction with material irregularity in not deciding the application under Order 41 Rule 27 CPC for leading additional evidence. When asked what was the nature of the evidence sought to be produced in appeal, he submits that it was an affidavit from which his client wished to show that

Click Here to Read the rest of this document