RFANo.515/01 Page 1 of 8

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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RFA No.515/2001

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24^th May, 2012

MRS. SAVIDA SADH

...... Appellant

Through:

Mr. T.A.Francis and Mr. Mahesh

Katyayan, Advocate.

VERSUS

NARENDER PAL MALIK

...... Respondent

Through:

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1.

This Regular First Appeal filed under Section 96 of the Code of

Civil Procedure, 1908 (CPC) impugns the judgment of the trial Court dated

13.8.2001 dismissing the suit for specific performance and injunction filed by

the appellant/plaintiff. The suit has been dismissed although the proposed

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seller/defendant no.1 failed to appear in the proceedings i.e. no written

statement was filed, the witness of the appellant/plaintiff was not cross-

examined and no evidence was led by the defendant no.1/respondent.

2.

The facts as per the plaint are that the appellant/plaintiff entered

into an Agreement to Sell of the suit property being commercial space

measuring 14’x 15’(fully covered) alongwith 10’x15’ of open area facing the

street on the south side and forming part of property no. I-C/125, Lajpat

Nagar, New Delhi (shown in red in the site plan annexed with the plaint),

hereinafter referred to as the suit property. The total sale consideration under

the Agreement to Sell dated 1.11.1988 was stated to be ` 1,75,000/- out of

which, a sum of `1,50,000/- was paid to the respondent /defendant no.1. The

balance amount was payable after the property was to be got converted into

freehold and at the time of registration of the sale deed. Till such time, to

compensate the respondent/defendant no.1, a nominal amount of rent of

`500/- per month was payable and was paid. The appellant/plaintiff was put

in peaceful possession of the suit property, and which possession has

continued to be with the appellant/plaintiff since that date. It was further

pleaded in the plaint that a new Government was formed in November, 1993

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and which allowed the conversion of the leasehold plots into freehold plots

and therefore the appellant/plaintiff requested the respondent/defendant no.1

to get the property converted into freehold, but, the respondent/defendant no.1

became greedy on account of prices of the property having gone up and

demanded a sum of `3 lacs, and failed to get the property converted into

freehold. The subject suit for specific performance therefore came to be filed.

The defendant no.2/Municipal Corporation of Delhi ( MCD) was only a

proforma party which had filed its written statement. MCD was thereafter

deleted from the array of parties.

3.

The appellant/plaintiff stepped into the witness box and proved

the site plan Ex.PW1/1. Copy of the agreement was proved as Ex.PW1/2. The

appellant/plaintiff affirmed payment of `1,50,000/- and continuing to pay `

500/- per month as rent. The legal notice served was proved and exhibited as

Ex.PW1/5 and postal receipts as Ex.PW1/6 and Ex.PW1/7. There is the

necessary deposition that the appellant has always been ready to perform her

part of contract.

4.

The trial Court has dismissed the suit drawing two conclusions;

first was that the agreement in question was only a lease agreement and not an

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Agreement to Sell, the second conclusion was that the agreement stood

frustrated inasmuch as no permission was obtained to convert the property

from