Mr. Amol Rattan Singh, J.:- Civil Misc. No.3821-C of 2016

For the reasons recorded in the order dated 05.04.2016. The application is allowed and the appeal is ordered to be restored to its original number.

Since no notice had been issued in the appeal itself, the same is taken on board today itself for arguments.

RSA No.5429 of 2014

This is an appeal filed by the defendants in a suit filed by respondent No.1 herein, seeking specific performance of a contract that he alleged was entered into by the present appellant with him on 24.08.2006, by which she (the appellant-defendant No.1) agreed to sell her 1/20th share, i.e. 4 marlas equal to 120 sq. yards of land comprising 4 kanal 0 marla, described in detail in the suit filed by her.

It was contended by the first respondent herein (plaintiffhereinafter to be referred to as the plaintiff) that as per the said agreement, the sale consideration was agreed at Rs.1,44,000/- of which the appellant-vendor received a sum of Rs.1,30,000/- at the time of agreement itself, from respondent No.2 (also defendant No.2 before the Civil Judge), who was a cobuyer alongwith the plaintiff. Thus both the present respondents, i.e. the plaintiff and respondent-defendant No.2 paidRs.65,000/- each as earnest money and part payment of the total consideration of Rs.1,44,000/-, at the time that the agreement was entered into, on 24.08.2006.

2. It was further contended in the plaint that the appellant-vendor would execute the sale deed in favour of the plaintiff and respondent No.2 by 24.02.2008, on receipt of the balance consideration of Rs.14,000/-. However, as stated in the judgment of the learned Civil Judge, it was further contended in the plaint that the sale deed could not be executed by the said date “due to some legal impediment”.

Thereafter, the date of execution, i.e. for the registration of the sale deed, was extended upto 24.02.2009 by mutual consent between the parties (the date wrongly given by the learned Civil Judge as 24.03.2009 in the earlier part of the judgment).

On 24.02.2009, the plaintiff contended that he remained present at the office of Sub-Registrar, Palwal, to get the sale deed executed alongwith the balance money and other necessary expenditure to be incurred but the appellant-vendor did not turn up to perform her part of the contract.

It was further contended that the plaintiff was still willing to execute the contract by payment of the remaining consideration money but despite requests to the appellant-vendor, she did not get the sale deed executed. Consequently, the suit was filed, with the appellant impleaded as defendant No.1 and the present respondent No.2 impleaded as proforma defendant No.2.

3. Upon notice issued to her, the appellant took preliminary objections with regard to maintainability, locus standi and estoppel etc. and on merit she contended that though she is owner of the suit property and had entered into an agreement to sell the same to the plaintiff and defendant No.2, for a sum of Rs.1,44,000/-, however, she denied receipt of Rs.1,30,000/- as earnest money.

It was further stated in the reply of the present appellant that as there existed blood relations between the parties, she had trusted that they would pay the entire consideration amount before the Registrar at the time of registration of the sale deed. She further alleged that the contents of the agreement and receipt were never read out to her.

Still further, it was contended in the written statement, that the appellant-vendor had never handed over the physical possession of the suit property to the prospective vendees and that she remained present in the office of the Sub-Registrar the whole day on 24.02.2009 and was ready to perform her part of the contract and even got her presence marked there but the plaintiff never turned up.

4. Respondent-defendant No.2 filed a separate written statement also taking preliminary objections of lack of maintainability and estoppel etc. On merits, stating th