Jagtar Singh v. Chande Lal

RAJIV SAHAI ENDLAW, J JANUARY 05, 2016 'pp' (corrected & released on 16th January, 2016)

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 5th January, 2016 + JAGTAR SINGH & ORS. ..... Appellants Through: Mr. Manish Kohli and Mr. Pradeep Shukla, Advs. Versus CHANDE LAL & ORS. ..... Respondents Through: None. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of the Code of Civil Procedure (CPC), 1908 impugns the ex parte judgment and decree dated 12th April, 2001 of the Court of Shri Prithvi Raj, Additional District Judge (ADJ), Delhi of dismissal of Suit No.170/2000 filed by the appellant on 21st December, 2000 for specific performance of an Agreement of Sale of immovable property. 2. The appeal was admitted for hearing and while issuing notice, vide ex parte ad interim order dated 24th July, 2001 the respondent was restrained from alienating or transferring in any manner or creating any third party interest in the suit property. The respondent failed to appear despite service of notice of the appeal also and was vide order dated 6th March, 2002 proceeded against ex parte and the interim order was confirmed. Both, the appellant as well as the respondent died during the pendency of appeal and upon notice of the application for substitution being issued to the legal representatives of the respondent, Advocate for some of the legal representatives of the respondent appeared and the legal representatives of the appellant as well as respondent were ordered to be substituted. However, the Advocate who had appeared for some of the legal representatives of the respondent also did not appear regularly and though on the last three dates either one of the legal representatives of the respondent appeared in person or an Advocate appeared for some of the legal representatives but today again none has appeared for the legal representatives of the respondent. The appeal being old, it is not deemed appropriate to defer the hearing any further awaiting the legal representatives of the respondent. The counsel for the appellant has been heard and the Trial Court Record requisitioned in this Court has been perused. 3. The appellant instituted the suit from which this appeal arises pleading:- (i) that the respondent/defendant representing himself to be the exclusive owner of Shop No.B-189, area measuring 70.60 sq. yds. situated at New Subzi Mandi, Azadpur, Delhi – 110 033 with leasehold rights in the land underneath the same approached the appellant/plaintiff for sale of first floor and above portion (whatever can be legally constructed) of the said shop for a total sale consideration of Rs.2 lacs; (ii) an Agreement to Sell dated 17th June, 1998 was executed; (iii) that the entire sale consideration of Rs.2 lacs was paid by the appellant/plaintiff to the respondent/defendant in cash and receipt whereof was confirmed in the Agreement to Sell; (iv) that the respondent/defendant in part performance of the Agreement handed over actual physical peaceful and vacant possession of the first floor and above portion of the shop to the appellant/plaintiff and also agreed that the appellant/plaintiff would be entitled to raise construction over and above the first floor which was unbuilt and the respondent/defendant would not raise any hindrance therein; (v) that the respondent/defendant also agreed to get all requisite permissions/clearances to execute the Sale Deed; (vi) though the appellant/plaintiff called upon the respondent/defendant to allow the appellant/plaintiff to raise construction over and above the first floor and to complete the transaction but the respondent/defendant avoided; (vii) that in September, 1999 the respondent/defendant sold/alienated the basement floor of the said property to the appellant/plaintiff for a total sale consideration of Rs.6 lacs and also handed over actual physical peaceful and vacant possession of the same to the appellant/plaintiff and executed various documents in that regard in favour of the appellant/plaintiff on 21st September, 1999 and got them register