IMPORTANT POINT
Relief of specific enforcement of contract is a discretionary relief and conduct of parties is of utmost importance while considering prayer for grant of discretionary relief.

JUDGMENT (ORAL)

Sandeep Sharma, J.—Instant appeal filed under Section 96 of CPC, lays challenge to judgment and decree dated 13.5.2013, passed by the learned District Judge, Sirmaur at Nahan, H.P., in Civil Suit No. 10-CS/1 of 2009, whereby suit filed by the respondents-plaintiffs (hereinafter referred to as “the plaintiffs”) for possession by way of specific performance of agreement to sell dated 4.6.2008 of property comprised in Khata/Khatauni No. 292/178 min Khasra No. 2938 to 2944 measuring 209.24 sq. meters of village Up Sampada, Badri Nagar, Tehsil Paonta Sahib, District Sirmaur, H.P., (in short the “suit property”), came to be decreed.

2. Precisely, the facts of the case as emerge from the record are that plaintiffs filed suit before the learned District Judge, Sirmaur District at Nahan, H.P., averring therein that appellant-defendant (in short “the defendant”) is recorded as owner in possession of the suit property and major portion of the same is under a residential house, whereas some portion of the property is lying vacant. Defendant approached the plaintiffs and offered to sell the suit property to them for a total consideration of Rs. 14,50,000/-. Plaintiffs averred in the suit that they accepted the proposal and accordingly, agreement to sell of the suit property was executed by the defendant in favour of the plaintiffs on 4.6.2008, whereby the defendant agreed to sell the suit property in favour of the plaintiffs for total consideration of Rs.14,50,000/-. Plaintiffs averred that defendant received sum of Rs. 2,00,000/-, 3,50,000 and 1,50,000/- (total Rs. 7.00 lac) dated 4.6.2008, through cheques No. 9157792, 775605 and 915793, respectively, drawn on Punjab National Bank and State Bank of Patiala, Paonta Sahib. Plaintiffs averred that though as per terms of the agreement, defendant was to get the suit property redeemed from Punjab National Bank, Paonta Sahib as he had taken loan of Rs. 2.5 lac and mortgaged the suit property with the said bank, but he took no steps to redeem the suit property with a view to defeat the interest of the plaintiffs. Plaintiffs claimed that instead of getting the sale deed executed, defendant started negotiations with other party for selling the suit property despite there being existence of the agreement to sell in their favour. Plaintiffs claimed that they repeatedly approached the defendant and expressed their readiness and willingness to perform their part, but yet he took no steps to get the sale deed executed and as such, they served him with legal notice dated 7.7.2008 calling upon him to execute the sale deed in their favour after redeeming the same within ten days. However, defendant failed to comply with the notice. Plaintiffs also claimed that vide affidavit dated 26.8.2008, defendant admitted the execution of the agreement and receipt of Rs. 7.00 lac and undertook to execute the sale deed within three days, but instead of executing the sale deed of suit property, he got the suit filed by his wife Mahinder Kaur against himself and the plaintiffs for declaration that suit property belongs to her and the entries of this property existing in favour of the defendant No.1 were wrong. Plaintiff further averred in the plaint that they are/were ready and willing to perform their part of the sale agreement by making the balance payment of sale consideration of Rs. 7.5 lac. Plaintiffs averred that on 4.11.2008, though they were present in the office of Sub-Registrar, Paonta Sahib with the balance sale consideration amount and other expenses for registration and stamp papers, but since defendant did not turn up for execution of the sale deed despite assurances given to them.

3. Aforesaid claim put forth by the plaintiffs came to be resisted on behalf of the defendant by way of filing written statement, wherein he while taking the preliminary objections regarding absence of cause of action, locus standi of the plaintiffs to sue, jurisdiction estoppels, non-joinder of the necessary part