Suit for specific performance of agreement

Section 52 of the Transfer of Property Act, 1882 ('the Act 1882') embodies the rule of lis pendence, which are both available in equity and common law

The legislature has provided a clear exception to applicability of the rule of lis pendence in cases where collusive action is involved

True scope of S.52 of the Act, 1882 does not prevent the vesting of title in transferee in a sale pendent lite but only makes it subject to rights of other parties as decided in the suit

The exception of collusiveness or fraud is not only applicable to the commencement of proceedings but the parties are precluded to have benefit of S.52 of the Act, 1882 if this collusiveness is made during the proceedings or a decree is obtained by collusion, which otherwise, or initially started bonafidely

A genuine compromise is a normal conduct of the parties and is not taken to be collusive but a compromise entered into by collusion or fraud excludes the application of S.52 of the Act, 1882

It is altogether immaterial as to whether the proceedings were collusive from the very inception or they became so at some subsequent stage

A suit may be collusive even at its very inception or a decree may be obtained by collusion in a suit which had initially started bonafidely

A person is to act with honesty as the good faith entails righteous and rational approach with good sense of right and wrong which excludes the element of deceitfulness, lack of fair-mindedness and uprightness and or willful negligence

Thus, two Courts below had not committed any mistake in reading the evidence led by two sides and they had arrived to the correct conclusion

Regular second appeal, filed by plaintiff, being merit-less, was dismissed.

Claim of the plaintiff, that the sellers / vendors (two in number) sold the suit property to him vide the agreement and promised to transfer the suit-property after redemption of mortgage charge from the Bank, was concurrently rejected

Arguments of the petitioner / plaintiff that the period of thirty (30) years for presumption under Art. 100 of Qanun-e-Shahadat, 1984, is to be calculated till the date when the agreement was brought on record, but the Trial Court reckoned this period up-till institution of the suit

Validity

Article 100 of Qanun-e-Shahadat, 1984, stipulates that thirty (30) years are to be taken on the date when a document is produced from any custody

The period of thirty (30) years is to be reckoned, not from the date upon which deed is filed in the Court, but from the date on which it has been tendered in evidence, its genuineness or otherwise becomes the subject of proof

Thus, in the present case, though the Trial Court fell into error while reckoning the period up-till filing of the suit, however, this error has no bearing on the result of the case, keeping in view the facts of the case and the evidence led by the parties

Furthermore, Art. 100 of Qanun-e-Shahadat, 1984, clearly gives discretion to the Court to apply presumption keeping in view the particular case

Two Courts below have disbelieved the evidence of the petitioner and the High Court also found that the evidence of the petitioner was not credible

Revision, filed by the plaintiff, was dismissed in limine, in circumstances.

Claim of the plaintiff, that the sellers / vendors (two in number) sold the suit property to him vide the agreement and promised to transfer the suit-property after redemption of mortgage charge from the Bank, was concurrently rejected

Validity

To presume the signatures and every other part of such document which purports to be in the handwriting of any person and that it is executed by the person by whom it purports to be executed, Court should be very careful about applying any presumption under Art. 100 of the Qanun-e-Shahadat, 1984, in favour of old documents when the same are produced during the trial of a suit, in which the proprietary rights are set up and the Court in its discretion can refuse to apply presumption where evidence in proof of the document is produced and then it is disbelieved

The word 'may' used in Art. 100 of Qanun-e-Shahadat, 1984, signifies that presumption envisaged therein does not follow as a matter of course

Two Courts below have disbelieved the evidence of the petitioner and the High Court also found that the evidence of the petitioner was not credible

Revision, filed by the plaintiff, was dismissed in limine, in circumstances.

Claim of the plaintiff, that the sellers / vendors (two in number) sold the suit property to him vide the agreement and promised to transfer the suit-property after redemption of mortgage charge from the Bank, was concurrently rejected

Validity

The names of the marginal witnesses are given in the agreement but even those alleged witnesses have passed away

Though one of the witnesses of petitioner / plaintiff claimed that he is son of one of the marginal witnesses and he was with his father at the time of execution of the agreement, however, in cross-examination he could not even depose as to the date of the agreement and then he stated that he cannot remember the names of the persons who have given their thumb impressions on the agreement

The evidence led by the petitioner is not coherent or confidence inspiring so that it can be said that they have discharged the onus to prove any fact that they asserted

Two Courts below have disbelieved the evidence of the petitioner and the High Court also found that the evidence of the petitioner was not credible

Revision, filed by the plaintiff, was dismissed in limine, in circumstances.

Claim of the plaintiff, that the sellers / vendors (two in number) sold the suit property to him vide the agreement and promised to transfer the suit-property after redemption of mortgage charge from the Bank, was concurrently rejected

Validity

Suit for specific performance was instituted after twenty-five (25) years of the agreement

Admittedly, alleged seller (two in number) have passed away but somehow in the suit or examination-in-chief of petitioner's witnesses even the date of death of alleged sellers is not specified

It came to the surface during cross-examination of one of the plaintiff witnesses that alleged seller died about thirty (30) years prior to recording of the evidence

There is hardly any justification available for instituting the suit after such a long delay from the agreement and decades after the death of the alleged seller

The names of the marginal witnesses are given in the agreement but even those alleged witnesses have passed away

The two Courts below have disbelieved the evidence of the petitioner and the High Court also found that the evidence of the petitioner was not credible

Revision, filed by the plaintiff, was dismissed in limine, in circumstances.

Suit of the plaintiff / respondent was concurrently decreed on the basis that agreement-to-sell was admitted by the defendant (appellant / vendor) in a prior suit by recording his statement (statement-in-question)

Validity

Appellant never assailed the proceedings and the statement-in-question by initiating appropriate proceedings rather denied the same in an oblique manner while filing written statement in the suit instituted by the respondent from which the present second appeal had emanated, which could not denude the earlier proceedings of its genuineness and/or existence unless the same was held to be fraudulent by the said Court

Proceedings carried out in prior suit particularly statement-in-question still held the field and existed in judicial record

In such situation, it was for the Court to look into peculiar facts and circumstances of each case and also the conduct of the parties and their credibility while appreciating the evidence available on record

Both the Courts below had correctly appreciated the controversy while decreeing the suit of the respondent

Regular second appeal, being merit-less, was dismissed.

Suit of the plaintiff / respondent was concurrently decreed on the basis that agreement-to-sell was admitted by the defendant (appellant / vendor) in a prior suit

Validity

As the agreement had been admitted in the prior suit filed by the respondent against the appellant, by recording statement before the Trial Court (statement-in-question), the non-production of both the marginal witnesses was not fatal to the case of the respondent

Moreover, in terms of Art. 91 of the Qanun-e-Shahadat, 1984 ('the Order, 1984'), presumption of genuineness was attached to documents forming part of the judicial proceedings

Statement-in-question (having been exhibited in the present case) pertaining to the agreement was recorded during the judicial proceedings that took place in the a prior suit and fell under the purview of Art. 91 read with Art. 81 of the Order, 1984 and its effect could not be brushed aside lightly

Thus, the suit for specific performance of the contract based on an agreement to sell can be decreed even if the second marginal witnesses of the agreement is not produced by the vendee in compliance of Art. 79 of the Order, 1984 in cases which fall within the purview of Art. 81 which is an exception to the rule contained under Art. 79 of the Order 1984

Both the Courts below had correctly appreciated the controversy while decreeing the suit of the respondent

Regular second appeal, being merit-less, was dismissed.

Suit of the plaintiff (respondent / vendee) was concurrently decreed on the basis that execution of agreement-to-sell was admitted by the defendant (appellant / vendor) in a prior suit

Validity

For the purposes of proof of a document falling under the purview of Art. 17 of the Qanun-e-Shahadat, 1984 ('the Order 1984'), two attesting witnesses must be examined as per requirement of Art. 79 of the Order, 1984

However, the rigors and clutches of the said requirement envisaged under Art. 17 read with Art. 79 of the Order 1984 subside where the execution of a document is admitted

In such a situation, the plaintiff is not bound to produce both the marginal witnesses in order to prove the execution of the agreement

Though, the documents were required to be attested by two witnesses but where the executant admits the execution of the document, then in terms of Art. 81 of the Order, 1984 such document can be used against him though it was required by law to be attested

Article 81 of the Order, 1984 is an exception to the general rule that where a document is required by law to be attested, the same cannot be used in evidence unless two attesting witnesses are called for the purposes of proving its execution

As the agreement in the present case had been admitted in the prior suit filed by the respondent against the appellant, by recording statement before the Trial Court (statement-in-question), the non-production of both the marginal witnesses was not fatal to the case of the respondent

Thus, the suit for specific performance of the contract based on an agreement to sell can be decreed even if the second marginal witnesses of the agreement is not produced by the vendee in compliance of Art. 79 of the Order, 1984 in cases which fall within the purview of Art. 81 which is an exception to the rule contained under Art. 79 of the Order, 1984

Both the Courts below had correctly appreciated the controversy while decreeing the suit of the respondent

Regular second appeal, being merit-less, was dismissed.

Suit of the plaintiff / respondent was concurrently decreed, on the basis that agreement-to-sell was admitted by the defendant (appellant / vendor) in a prior suit by recording his statement (statement-in-question)

Assertion of the appellant was that the statement-in-question did not belong to him and his signature and thumb impression had been forged and fabricated by playing fraud upon the Court

Held, that said assertion was belied by the report of Finger Expert Bureau which was also available on the record and was duly corroborated by testimony of Inspector Police Finger Expert Print Bureau, Punjab, as a witness of plaintiff; according to which the thumb impression available on the agreement was identical to the specimen thumb impression marked (as D, D/1 and D/2)

Thus, mere assertion of the appellant (that he did not appear in the prior suit and had not recorded any statement nor affixed his thumb impression on the order sheet of the prior suit) could not be relied upon nor the same was sufficient and cogent to rebut the presumption of truth attached to judicial proceedings

Sanctity of highest order was attached to judicial proceedings and to outweigh the same, strong and unimpeachable evidence was to be produced

Appellant had failed to bring on record any such evidence

Both the Courts below had correctly appreciated the controversy while decreeing the suit of the respondent

Regular second appeal, being merit-less, was dismissed.

There is no provision, undoubtedly, in the Specific Relief Act, 1877 requiring the vendee to deposit the remaining sale consideration upon filing of the suit for specific performance of contract, however, as the relief of specific performance is discretionary in nature and cannot be claimed as a matter of right, therefore, the vendee must state that he has performed all the conditions which under the agreement he was bound to perform and right from the date of execution of the agreement till filing of the suit he had been ready and willing to perform his part of the contract; he is not only required to state in the plaint his readiness and willingness to perform his part of the contract but also establish through supporting evidence like pay order, bank statement or other material, his ability to perform his part, leaving no doubt in the mind of the Court that the proceedings seeking specific performance have not been initiated to cover up his default or to gain time to generate resources

It is in said context, the Court in order to weigh his (vendee's) capacity to perform and intention to purchase may direct the vendee to deposit the balance sale consideration

Readiness and willingness on the part of the vendee to perform his part of the obligation also prima facie demonstrates that non-completion of the contract was not the fault of the vendee and the contract would have been completed if it has not been renounced by the vendor

No illegality or infirmity had been noticed in the impugned judgments and orders passed by both the Courts below, dismissing the suit filed by the petitioner/plaintiff for non-depositing of remaining consideration

Revision was dismissed, in circumstances.

Plaintiff claimed that the Company, a family-owned business, violated an Undertaking that entitled each brother to a 25% share in Company's assets

Despite entrusting control to a brother (defendant), the plaintiff alleged that the defendant failed to uphold the agreement

In 2005, the company sold its 'Islamabad property' and divided the proceeds among the brothers

Subsequently, they agreed to sell the 'Clifton property', but a lawsuit arose due to a delay in the sale agreement

Ultimately settled in 2018, the buyer deposited funds with the Court for release to the Company

Plaintiff sought his rightful share, filing a lawsuit to halt the release of funds deposited with the Court and to enforce the Undertaking

Validity

Plaintiff had prima facie demonstrated that the Company and its shareholders had acted upon the Undertaking by treating the immovable assets of the Company as the joint assets of the brothers

But what still remained to be seen was whether that practice of the parties was sufficient justification for a Court of law to ignore the corporate personality of the Company so as to enforce the Undertaking against the Company

Answer to such question would in turn determine the ownership of the sale proceeds of the Clifton property lying with the Court

Till such time, the plaintiff had made out an arguable case for preserving the sale proceeds

Application was disposed of by restraining the Company from obtaining release of sale proceeds.

Where subsequent vendee conducted no inquiry regarding the title of property in question, he would not be deemed to have purchased property in question for value, in good faith and without notice of original contract.

Appellant allegedly approached few days prior to mutually extended date for payment of balance money, but one of the respondents refused to accept the same and disclosed that the suit property was sold out to third party

Said "third party" entered the suit by moving application under O.I, R.10 of Civil Procedure Code, 1908

Third party asserted that he purchased the suit land vide four mutations (numbers given in written statement); that he was owner in possession of suit land; and that one of the defendants in collusion with appellant was trying to take possession after sale; and that real brother of one of the respondent filed suit for possession on basis of pre-emption against third party

Appellant's suit was concurrently dismissed

Validity

Appellant's agreement to sell and payment of earnest money was undisputed and concluded by both Courts below

Emerged on record through evidence that parties were residents of same vicinity and well known to one another

Agreement between appellant and one of the respondent must had been in knowledge of inhabitants of village

Nothing on record to show whether "third party" had made inquiry about existence of said agreement even in summary manner

Third party had not exhibited alleged four mutations in his favour to prove that same were sale mutations for value

Passing of consideration was also not proved on record

No confidence inspiring evidence germane to making of inquiry about original contract by third party was made as required by law/settled principles

Appeal was allowed and suit of appellant/plaintiff was decreed with direction to deposit remaining sale price within 30 days, otherwise the same would be deemed to have been dismissed.

Lump sum payments were to be made to plaintiff under the contract against completion of specific milestones and not against any delivery of specific equipment

Defendant authorities terminated the contract for failure of plaintiff company to achieve required milestones in time frame fixed in contract

Validity

Defendant authorities issued purchase orders and contracts entered into because of extreme urgency created by plaintiff's failure to complete project almost three years after completion date

Continued extraction and resulting depletion of gas from same reservoir by other companies from adjacent fields and further delay would result in the purpose of the project defeated as no gas could be left to produce

Even if such purchase orders were issued and contracts were entered in violation of Public Procurement Rules, 2004, that would not entitle plaintiff to specific performance of the contract and at the best it required defendant authorities to issue new tenders for the equipment and remaining work resulting in the contract to remain terminated

Unless plaintiff proved otherwise, Court had to presume that money was adequate compensation for breach of contract

Contract could not be specifically enforced and no injunction could be granted to prevent its breach

Plaintiff failed to establish that money would not adequately compensate it for breach of contract, even if the contract was an agreement for sale of goods, it could not be specifically enforced under S.58 of Sale of Goods Act, 1930

Even if restrictions under Ss.12 & 21 of Specific Relief Act, 1877, could be circumvented and it was not an agreement for specific and ascertained goods

Plaintiff could provide defendant authorities with any Amine or HCDP package

High Court was to decide a private dispute in its civil original jurisdiction under S.9, C.P.C., which jurisdiction was circumscribed by law

High Court could not grant any relief which was specifically barred by a statute

High Court was bound by restrictions prescribed in Specific Relief Act, 1877

Relief of injunction was discretionary and Court was not bound to grant it in every case and it was not to be granted unless Court was satisfied as to its real need

Discretion was to be exercised in accordance with reasons and sound judicial principles

Court while dealing with application for grant of injunction had to look and assess all circumstances obtaining the suit and more so to equitable relief

Discretion vested in Court of law had to be exercised judicially and equitably ensuring all the times that justice was adequately applied and administered

High Court declined to grant interim injunction in favour of plaintiff as it failed to make out a prima facie case in its favour

Application was dismissed, in circumstances.

Consequence of holding that in case of a party seeking compensation or damages as an alternative remedy, it cannot be granted interim injunction (in relation to contracts involving movable property at least) would be to produce multiplicity of proceedings at the best, or worse, frustrate the ability of claimant to seek specific enforcement after trial

If party makes out a prima facie case but is denied interim relief on the basis of it seeking alternative relief of compensation or damages, the lis would not remain preserved and it might become impossible to specifically enforce the contract in question at the time of judgment

In the event that suit property changes hands, refusal to grant injunction and preserve status of lis would result in multiplicity of proceedings

Such interpretation of S.56(i) of Specific Relief Act, 1877, would force parties not to claim compensation or damages in alternative to avoid any mischief caused due to existence of S.56 (i) of Specific Relief Act, 1877, and bring a suit for damages subsequently if Court finds that specific performance cannot be granted

As such it can attract bar in O.II, R.2, C.P.C.

In a case of breach of contract, a party can have the right to enforce its performance while also seeking damages for breach of obligations by counter-party that has already taken place

Logical for a party to claim damages as an alternative in case specific performance cannot be ordered in circumstances of the case due to impossibility or any other factor

Action of claimant in seeking an alternate remedy from Court in terms of compensation does not mean that such compensation may make the claimant whole, affect restitution and amount to ascertainment of actual damages caused due to non-performance of contract for purpose of S.12(b) of Specific Relief Act, 1877.

Respondent/plaintiff filed suit for specific performance of agreement and during trial Forensic Science Laboratory reported confirming genuineness of signatures of petitioner/defendant on the agreement

Trial Court as well as Lower Appellate Court dismissed suit and appeal concurrently

Incomplete revision was filed against concurrent decrees well in time and to remove objection raised by office of High Court the file was received back but refiled after almost seven years

Validity

Petitioner/defendant filed application under S.5 of Limitation Act, 1908, but without specifically explaining delay of each day in re-filing of revision application

Concurrent findings of lower fora were based on reasoning as per available evidence

High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of facts

Petitioner/defendant had no merit or evidence at his end but he with ulterior motive continued the litigation, which caused consumption of precious time of Court therefore, special cost was imposed on petitioner/defendant

Revision was dismissed, in circumstances.

Court had ample discretion to deny the relief to a purchaser of an immovable property keeping in view the circumstances of each case as he could not claim specific performance of a contract as a matter of right even where it was lawful to do so.

Defendant allegedly received earnest money of Rs. 50,000 for the property from the plaintiff for which a receipt was provided to the plaintiff

Said receipt stated that an agreement to sell the suit property was required to be executed after ten days containing all necessary terms and conditions and detailed description of the property in question

No such agreement was ever executed between the parties

Once the defendant refused to sell the property to the plaintiff, the latter filed a suit for specific performance on basis of the receipt

Held, that the receipt did not inspire confidence as it contained no specific description of the property by metes and bounds; it had been signed by the defendant without specifically stating that he held a power of attorney on behalf of the original owners; it suffered from uncertainty; it had not been attested by two male witnesses; and, it had not been stamped in any form

Admittedly no agreement to sell was ever executed between the parties

Perusal of the receipt did not indicate any consensus between the owners and the buyer and there was no meeting of minds

Receipt was just a receipt showing that an amount of Rs.50,000/- had been paid subject to further steps, the most material of which was execution of a formal agreement containing all essential terms of sale

Receipt could be termed and treated as a contract, if four basic components could be spelt out from the same without ambiguity namely the identity of seller and purchaser; the amount of sale consideration; the identity and accurate description of the property agreed to be sold; and consensus ad idem between the parties to the agreement to sell an immovable property

Receipt, in the present case, only contained the amount of sale consideration and lacked the other three components, as such it was correctly not treated as an agreement by the High Court

Pleadings of the parties also did not establish any oral agreement between them

Law relating to oral agreement was quite clear, the terms and conditions which were orally agreed had to be stated in detail in the pleadings and had to be established through independent evidence which was neither the case of the plaintiff nor was it so set up before the lower fora

High Court had rightly refused to exercise its discretion in favour of the plaintiff

Supreme Court upheld the direction of the High Court whereby it directed that the sum of Rs.50,000/- admittedly paid to and received by the defendant be returned to the plaintiff along with mark up at the bank rate calculated from the date when it was paid till it was fully recovered

Appeals were dismissed in circumstances.

Revision was allowed accordingly.

Two defendants were bona fide purchasers of the land and were held entitled to get their sale consideration from third defendant along with interest at the Bank rate by way of separate suit

Mutation was reviewed and the land was reversed in favour of the seller

Said defendant was the alleged vendor and petitioners had no concern with the suit for specific performance nor his land was transferred through the mutation

Said defendant having malafidely sold the land mutation of such land was to be reversed and transferred in favour of decree holder

Defendant actually had committed fraud and no one could get the benefit of his own fraud

High Court directed the concerned Revenue Officers to correct the record accordingly

Constitutional petition was allowed.

Agreement to sell only conferred a right for the enforcement of such an agreement and to obtain another document conferring title with regard to immovable property in question.

Attorney moved application for withdrawal of petition filed by him under S.12(2), C.P.C. stating therein that matter had been settled but the same was dismissed

Contentions of principal were that attorney had colluded with the respondents and that he wanted to establish his plea of fraud and misrepresentation

Validity

Difference of opinion and conflict of interest had arisen between the principal and attorney

Attorney as an agent had to act on behalf of principal and was not authorized to act beyond the powers vested in him by the principal or against his instructions

Where principal had denied the authority of the attorney to withdraw the application under S. 12(2), C.P.C. rather the principal wanted to pursue the matter himself, authority vested in the attorney would come to an end

Attorney could do all the acts on behalf of principal but power to withdraw from litigation was not on record

Principal himself appeared in the Court before the case was withdrawn and claimed that he would pursue the same and disowned the action of attorney with regard to withdrawal of case

Power of attorney was an unregistered document therefore, there was no need for another written document for its cancellation when principal himself had appeared in the Court

Trial Court had yet to determine as to on what grounds and under what circumstances matter was settled between the parties and whether principal was bound by the said settlement

Alleged settlement could only be determined by the decision of application under S. 12(2), C.P.C. on merits

Trial Court was justified to dismiss the application filed by the attorney on behalf of principal and refuse permission to withdraw the said application

Agent could not be allowed to have different and conflicting stance than the principal

No illegality, infirmity or erroneous exercise of jurisdiction had been pointed out in the impugned order

Revision was dismissed in limine.

Plaintiff in a suit for specific performance of agreement must be ready, willing and able to perform his part of contract by paying the sale consideration

Inability on the part of plaintiff/purchaser to pay remaining sale consideration in accordance with the terms and conditions of agreement to sell or a decree would disentitle him for the grant of equitable relief of specific performance

Even if plaintiff during pendency of suit for specific performance did not show compliance with an interim order passed by the Court for deposit of remaining sale consideration, suit was liable to be dismissed on account of such a default.

Plaintiff alleged that whole earlier litigation was settled between the parties on basis of compromise arrived at between parties before court but defendant failed to perform his part of agreement

Suit was decreed in favour of plaintiff by Trial Court but Lower Appellate Court reversed findings and dismissed the suit

Validity

Defendant did not bring on record any circumstances through which it could be proved that he was under duress and coercion, especially when nine other cases referred in compromise deed were withdrawn by plaintiff and even criminal case was also settled down between parties

Not a single criminal or civil suit was in field rather all were withdrawn

Plaintiff and her husband had complied with terms of agreement and defendant had taken a belated plea in order to deprive them from their rights

Agreement recorded by court of law was a valid agreement and undertaking given during pendency of suit had a binding effect

Lower Appellate Court exercised jurisdiction not vested in it and figured the entire findings on hypothetical assumption which was actually based on no evidence

High Court set aside judgment and decree passed by Lower Appellate Court as jurisdiction was not exercised diligently

Judgment of Trial Court was restored

Revision was allowed in circumstances.

Such document could only be utilized for procuring sale deed by filing suit for specific performance.

Plaintiffs/petitioners contended that though names of witnesses were not mentioned in the plaint but he should have not been non-suited as his witnesses testified payment of earnest money before trial Court

Validity

Deficiency obvious from the plaint was fatal and suit was not maintainable

Non-mentioning of names of witnesses and date of completion of oral agreement specifically in unequivocal manner was fatal; hence incorporation of those two elements in the plaint in unequivocal manner were necessary without which the suit of plaintiffs was not maintainable

Record showed that plaintiffs had not specifically incorporated names of witnesses as well as date of completion of agreement to sell in the plaint, which being fatal entailed penalty of dismissal of the suit

Revision was dismissed accordingly.

Court could grant extension in time to levy Court-fee particularly in a case for specific performance of a contract, if the conduct of litigant was not wilful and contumacious

No such evidence was available on file to show and to prove mala fide, willful omission and contumacious conduct of plaintiff

Defendant failed to prove or rebut the claim of plaintiff to the effect that he deposited amount of court-fee with government treasury even before filing appeal and Court fee was not used in any other case by plaintiff

Plaintiff had also placed on record while filing application copy of Challan to show deposit of requisite court-fee in government treasury

Lower Appellate Court should not have extended time and allowed plaintiff to levy court-fee instead of dismissing application on surmises and conjectures

High Court in exercise of revisional jurisdiction set aside the order passed by Lower Appellate Court

Revision was allowed in circumstances.

Plaintiff was tenant of the suit/evacuee property prior to transfer of the title/ownership of the property to the defendant, and after the property had been officially transferred to the defendant, the plaintiff had become a statutory tenant, for which reason the defendant had initiated eviction proceedings during pendency of the present suit, in which the Rent Controller had passed an eviction order and the appeal filed against the same had been dismissed

Both courts below, having elaborately discussed the material evidence, had found that the plaintiff in view of his own admitted documents had failed to prove execution of the agreement of sale

Statement of the marginal witness had been belied during recording of the evidence

Plaintiff had perpetuated his possession over the suit property during about 45 years of litigation

Plaintiff, who was mere occupant without any legal character, thus, had defeated the rights/entitlement of the defendant granted under Arts. 23 & 24 of the Constitution in the name of the litigation

Plaintiff and his sub-tenant had continued to be in possession of the suit property under the cover of the interim orders passed by the courts

In view of facts and circumstances of the case, there was no misreading and non-reading of the evidence or lack of any proper reasoning for dismissal of the suit and appeal

Plaintiff and other occupants of the suit property who had no legal character/entitlement over the suit property for 40 years could not have been allowed to retain possession of same even for one day

Final eviction orders against the plaintiff were also in field, the execution of which had been stayed in the proceedings of present petition

Defendant had lost track of the case only on account of inordinate delay and conduct of his counsel

High Court dismissed revision for perpetuating plaintiffs' possession over the suit property for over 40 to 45 years through frivolous litigation before the Settlement authorities, through civil suit and also on account of realizing rent during the litigation

High Court directed that suit property be taken over by Nazir of the Court (as the defendant was not present before the High Court) and rented out and also directed to locate the defendant or his legal heirs

High Court observed that not only the counsel of the parties but the Court had also contributed in the inordinate delay in disposal of the suit

Revision petition was dismissed with cost of Rs.3,00,000 in circumstances.

Plaintiff entered into agreement to sell with defendant and paid Rs.30,000/- as earnest money and Rs. 30,000/- as part performance of contract of total sale consideration of Rs. 1,10,000

Later on defendant avoided to perform the agreement which led to the institution of suit after having some conversation through legal notice

Suit was decreed in favour of plaintiff by Trial Court and findings of Trial Court were set aside by lower appellate court which ordered the return of paid sum of Rs. 60,000/- as forfeiture of advance amount was not mentioned in the agreement to sell

Validity

First legal notice from defendant contained two dishonest gestures, firstly, sale consideration was declared as Rs. 1,20,000/- secondly, forfeited the amount of Rs.60,000/- paid by plaintiff

Time of one month as stipulated in agreement to sell was conditional and not essential

No clause of forfeiture of advance amount received by defendant existed in the agreement

Defendant had neither cleared dues/tax nor had given proof of having paid the dues/tax against property within one month

Defendant also admitted execution of sale agreement and payment of more than 60% advance from total sale consideration

Plaintiff, who paid more than 60% advance to defendant and promptly paid the balance consideration in court, earned the discretion of court

Revision was allowed rendering judgment and decree of Trial Court restored.

O. XXXIX, r. 2 (3)-Suit for specific performance of agreement-Court on consent of parties ordering status quo pending proceeding in respect of property-Defendant in violation of undertaking given to Court parting with possession and renting out property to third party-Court ordering detention of defendant in civil jail for 6 weeks for deliberate contravention of undertaking- Order, held, valid-Special Leave to Appeal refused by Supreme Court.