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PUNJAB AND HARYANA HIGH COURT
M. Jeyapaul, J.
Manjit Kaur etc. —Appellants
versus
Madan Gopal & Ors. —Respondents
R.S.A. No. 2186 of 1989
Decided on 5.12.2012
For the Appellants:Mr. Arun Palli, Sr. Advocate with Mr. Survir Kumar, Advocates.
For the Respondent No.1:Mr. H. K. Arora, Advocate.
For the Respondent No.2:Mr. R. S. Mittal, Sr. Advocate with Mr. C. S. Singh, Advocate.
IMPORTANT POINT
Specific performance will not be ordered if contract itself suffers from some defect.
Headnote:(A) Specific Relief Act, 1963—Section 16(1)(c)—Evidence Act, 1872—Section 102—Specific performance of contract—Suit decreed by Trial Court and upheld by First Appellate Court—Agreement for sale was executed in favour of plaintiff by third defendant in his capacity as Power of Attorney of first and second defendants—Plaintiff must succeed or fail on his own case and cannot take advantage of weaknesses in defendant’s case to get a decree—Initial onus is always on plaintiff and if he discharges same and makes out a case which entitles him to a relief, onus shifts to defendant to prove those circumstances, which would disentitle plaintiff to same—In face of acceptable evidence produced on side of plaintiffs, there is virtually no resistance to plea of plaintiffs that subject agreement for sale was executed by 3rd defendant on behalf of 1st & 2nd defendants—Plaintiffs also established that in part performance of agreement for sale, four sale deeds had been executed with respect to part of property—Non-production of Power of Attorney would not invalidate agreement for sale nor would it make unenforceable—Appeal dismissed. (Paras 9, 10, 14, 18, 22 and 24)
(B) Specific Relief Act, 1963—Section 16(1)(c) and 20—Specific performance of contract—Jurisdiction to order specific performance of a contract is based on existence of a valid and enforceable contract—Where a valid and enforceable contract has not been made Court will not make a contract for them—Specific performance will not be ordered if contract itself suffers from some defect—Contract being foundation of obligation order of specific performance is to enforce that obligation. (Para 21)
Result: Appeal dismissed.
M. Jeyapaul, J.—The L.Rs of deceased/defendant No.5 D.S. Sandhu have filed the present appeal aggrieved by the decree for specific performance granted by the trial Court as prayed for by the plaintiffs and upheld by the first appellate Court.
2. The plaintiffs have contended in the plaint that the 3rd defendant in his capacity as Power of Attorney of the 1st and 2nd defendants executed the agreement for sale dated 6.11.1980 in favour of the plaintiffs agreeing to sell the suit property. The sale consideration was fixed at Rs. 3,85,000. Part of the sale consideration to the tune of Rs. 20,000 was paid by the plaintiffs to the 3rd defendant. The sale deed was proposed to be executed and registered on 30.4.1981. Thereafter, on various dates a total sum of Rs. 60,000 was paid towards further part of the sale consideration: In part performance of the agreement for sale, sale deed dated 5.3.1981 with respect to plot No. 89 was executed in favour of Bimla Devi, the sister-in-law of the second plaintiff, a sale deed dated 12.03.1981 was executed with respect to plot No.90 in favour of Sanjukta wife of second plaintiff, a sale deed dated 3.3.1981 was executed with respect to 1/8th share in plot No.92 in favour of Raj Rani wife of plaintiff No. 1 and a sale deed dated 3.3.1981 with respect to another 1/8th share in plot No.92 was executed in favour of the plaintiff himself. In all, 37 marlas had already been sold by defendants No.1 to 3 in favour of the plaintiffs. Having contended that the plaintiffs have been ever willing to perform their part of contract to get the sale deed executed in respect of the remaining property, they have filed the suit for specific performance of the agreement for sale.
3. Defendants No.1 to 3 filed their written statement admitting their execution of the agreement for sale in favour of the plaintiffs. But they contended that the plaintiffs were guilty of unreasonable delay and lapse. The plaintiffs were also not ready and willing to perform their part of the contract. They have submitted that as the plaintiffs never approached them for execution of the sale deed after 12.3.1981, they entered into an agreement for sale with the 4th defendant on 24.3.1983. They would also contend that in part performance of the said agreement, possession also was delivered to the 4th defendant on 31.5.1983.
4. The 4th defendant in his written statement has contended that he had no knowledge of the agreement entered into by defendants No.1 to 3 with the plaintiffs. He entered into an agreement for sale with the 1st defendant on 24.3.1983 to purchase plotNo.91 for a sum of Rs.2,90,000. He paid a sum of Rs.30,000 as earnest money and further sum of Rs.1,72,000 on different dates towards sale consideration. The 4th defendant entered into an agreement to sell 3/4th share of plot No.92 to the 5th defendant vide agreement dated 25.8.1983 for a sum of Rs.3,10,000. The 5th defendant was also put in possession of 30 marlas of land in plot No.92 on 31.5.1983. Therefore, the.4th defendant has sought for dismissal of the suit.
5. Both the Courts below having held that Ex.Pl agreement for sale dated 6.11.1980 was admittedly executed by 3rd defendant on behalf of the 1st and 2nd defendant and that the plaintiffs were also ready and willing to perform their part of the contract decreed the suit.
6. At the time when the appeal was admitted on 13.9.1989, no substantial questions of law were framed by this Court. Therefore, the following questions of law were formulated for determination of this appeal:
1. Whether Ex.Pl agreement for sale dated 6.11.1980 is valid and binding on defendants No.1 & 2, in the absence of any Power of Attorney executed by defendants Nos.1 & 2 in favour of defendant No.3.
2. Whether the admission of defendants Nos.1 & 2 that they agreed to sell the suit property to the plaintiff would ratify the action of defendant No.3, in the absence of written Power of Attorney.
7. Learned counsel appearing for the app
