Harbaksh Singh Gill and ors. Vs. Ram Rattan and anr. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - if the vendor failed to get his share separated, the vendee could get the same done after the completion of the sale through court, which right had been given to him under the contract. khushpal kaur, (1984) 1 land lr 203 upheld the specific performance of a contract where the vender had undertaken to get the premises vacated from the tenant before the execution of the sale deed, but failed to do so. the second contention raised as well has to be overruled. the trial court thus, completely failed to take into consideration all the attending circumstance which led to a wrong conclusion.1. sukhdev singh, respondent no. 2, entered into an agreement on july 19, 1972 with ram ratan, respondent no. 1, to sell his one-half share in the property in dispute for a consideration of rs. 48,500/- and received rs. 10,000/- as earnest money. he undertook to get his share separated by filing a suit and the deed was to be executed within one month of the passing of the final judgment. if the suit was not disposed of within one year, he agreed to pay interest on the earnest money at the rate of 3 per cent per annum. a suit was filed for partition by him, but was dismissed for non-prosecution. the application filed by him to get the suit restored was also dismissed. on the same day on which the suit was dismissed for non-prosecution, respondent no. 1 filed this suit for permanent injunction restraining respondent no. 2 from committing the breach of the agreement and transferring his share to any one except the plaintiff. during the pendency of the suit, respondent no. 2 sold his share to the appellants vide sale deed dt. feb. 4, i9'75, whereupon the plaintiff converted the suit into one for specific performance.2. respondent no. 2 admitted the execution of the agreement of sale, but pleaded that after the dismissal of the wit for partition filed by him, it was the plaintiff who was not willing to complete the sale transaction and wanted his earnest money to be returned. however, later on he changed his mind and refused to receive back the amount of the earnest money. the appellants controverted the allegation made by the plaintiff and pleaded that specific performance against them could not be ordered; they having purchased the property in dispute bona fide for value without any notice of the agreement in favour of respondent no. 1. they further pleaded that the contract was a contingent one depending on the partition of the property and as the partition never took place, the contract could not be enforced specifically.3. on the pleadings of the parties, the following issues were framed:--'1-a. whether defendant no. 1 sukhdev singh executed the agreement of sale dt july 19,1972 in favour of the plaintiff in respect of the suit property ?.o.p.p. 1-b: whether the plaintiff has been ready and willing to perform his part of the contract? o.p.p. l. whether the agreement dt july l9,1972 has been rescinded as alleged o.p.d-1. 2. whether defendants nos. 2 to 4 are bona fide purchasers for consideration and without notice of the alleged agreement? if so its effect? o.p.d. 3. whether the suit in the present form is not maintainable, as alleged? o.p.d.'4. issues nos. 1-a and 1-b were,answered in favour of the plaintiff, the rest against the defendants and the suit decreed. aggrieved thereby, the subsequent vendees have come up in this appeal.5. three contentions were raised by the learned counsel to assail the impugned judgment. firstly, it was contended that the contract of sale was a contingent one and the future event having never happened, the suit for its enforcement was premature. to appreciate the contention, it is necessary to notice the relevant portion of the agreement of sale, ext. p-l, which reads as under:--'the parties shall be bound to get the sale deed executed and completed after one month of the final decision by a court of competent jurisdiction of the suit for partition of the property and that the first party (sukhdev singh) shall be bound to inform the second party (ram rattan) about it in case it takes more than a year for the decision of the partition proceedings, then the first party would be liable to pay on the earnest money of rs. 10,008/- interest at the rate of 3 percent per annum to the second party which would be payable monthly and would be adjusted against rent...................... if the second party commits a breach, of the agreement, the earnest money shall stand forfeited and if the first party commits breach, then the second party would be entitled to get the sale deed registered court by specific performance of the agreement'in the earlier portion of the document, it is stated that the first party hereby-enters into, an agreement to sell one-half share of the shops, a coal depot comprising three shops, vacant site, courtyard, kitchen and five rooms, kucha khas and taur khushak, total area of house measuring 496/9 sq. yards, the half of which comes to 248/9 sq. yards, for a consideration of rs. 48,500/- .6. from a bare perusal of the terms of the agreement, reproduced above, it is evident that the contract of sale was not contingent arid it was only the execution of the sale deed which was postponed to a future date. there is a clear difference between a contract under which a present obligation is created but the performance is postponed to a future date and a contract under which there is no present obligation at all and the obligation arises by reason of some condition being complied with or some contingency occurring. in the present case, the vendor had agreed to sell his half share in the property in dispute, but the sale deed was agreed to be executed after a month of the partition of the property and separation of his share. to get the property partitioned and his share separated was an obligation under taken by the vendor for the benefit of the vendee. it was not a condition precedent without the happening of which no obligation to transfer the share could arise. if the vendor failed to get his share separated, the vendee could get the same done after the completion of the sale through court, which right had been given to him under the contract. if sale was of a specified portion, than the situation might have been different. the sale here being of the unspecified share, it could not be laid that the contract was contingent one and the plaintiff was not entitled to enforce it without the share of the vendor having been separated. in kirpal das jivraj mal v. manager, encumbered estates, air 1936 sind 26, the decision retied upon by the learned counsel for the appellants, the vendor had agreed to sell 800 acres of land out of his share of the total land measuring 1800 acres adjoining to the hind of the purchaser, which he undertook to, get measured and separated. the suit filed by the vendor was held to be premature with the following observation:--'we do not think this is a case of the sale of a share in undivided property, nor do we think it is a case where the contract can be favour of the purchaser. can be waived, because what the zamindar purported to sell was not his undivided share nor was it any, fraction of his undivided share; but it was 800 acres of his land adjoining and bordering on the land of the, appellant. this and this only is the land the appellant asks for in his plaint. the 800 acres are identified as land adjoining the plaintiffs land. now it is clear to the appellant. that the zamindar cannot give possession of this land because he has not got it in his separate possession, nor is there any certainty that he can get it in his separate possession for, if he sues for partition, the 800 acres may not be allotted to his-share. the appellant seeing this objection frustrates the object of his endeavor, seeks by giving his claim a general instead of a specific character to make his agreement enforceable. we do not think this course is open to him. if i sell my land, called black acre, and i cannot give possession of it because it is not in my separate possession, my purchaser is not then entitled to demand from me my land; white acre, in its place. therefore this does not appear to us a case in which the purchaser can waive a condition of the contract as a condition in his favour if he chooses.'this case is obviously distinguishable; and has no bearing on the present case. as already noticed above, the sale in the present case was not of any specified portion and, therefore, it can not be said that the vendor is trying to enforce the sale of the property other than agreed to be sold to him.7. the matter can be looked at from another angle also. the clause that the vendor shall get his half share separated prior to the completion of the sale deed was for the benefit of the vendee and it was, therefore, open to him to waive the same. no doubt, the initiation and the completion of the proceedings for the separation of the share depended on the volition of the vendor, but for that reason it cannot be said that the contract became a contingent one and could be frustrated by the vendor by his own wrong. under somewhat similar circumstances, 1. y. gupta, j. in smt. bhagvan kaur v. smt. khushpal kaur, (1984) 1 land lr 203 upheld the specific performance of a contract where the vender had undertaken to get the premises vacated from the tenant before the execution of the sale deed, but failed to do so. the first contention raised, therefore, has no merit and is accordingly overruled.8. it was next contended that the plaintiff neither plaintiff that he tendered the money to the vendor-defendant on any particular date and demanded transfer of the property by an instrument, nor had he shown that he had the money at his disposal to pay the sale consideration. it was, therefore, argued that the plaintiff was not ready and willing within the meaning of s. 16 of the specific relief act to perform his part of the contract and, as such, was not entitled to its specific enforcement reliance for this proposition was placed on the decision of r. n. mittal, j. in dhanna singh v. malkiat singh, 1983 plr 275. it is clause (c) of s. 16 which provides that a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. it further provides that the person claiming specific performance need not aver and prove the terms the performance of which has been prevented or waived by the defendant in the present case, as already noticed above, the sale deed was to be executed within one month of the decision of the suit for partition. the day that suit was dismissed for non-prosecution, respondent no. 1 filed the suit for an injunction restraining the vendor from transferring the property to anyone else. soon thereafter the vendor transferred the property in favour of the appellants and, thus, prevented the plaintiff froth performing his part of the contract. in these circumstances, the averment of the plaintiff that he was willing and ready to perform his pact of the agreement and was still prepared to do so, was sufficient compliance with the provisions of s. 16(c) and it was not incumbent upon him to further aver that he had made a demand upon the defendant to executed the sale deed on a particular date and to show that he had the money to offer to him on that particular date. the explanation to the said clause (c) has further made it clear that it is not essential for the plaintiff to actually tender to the defendant or to. deposit in court any money where a contract involves its payment except when so directed by the court. the decision relied upon by the learned counsel for the appellants, therefore, it distinguishable and has no bearing on the facts of the present case. the second contention raised as well has to be overruled.9. lastly it was contended that the role of lis pendence had been wrongly invoked and applied to hold that the sale in favour of the appellants was not binding on the plaintiff. it was argued that initially the suit was only for an injunction and before it was converted into one for specific performance, the sale in favour of the appellants had already been made. even in the suit initially filed, right to the property in dispute was directly and specifically in question because the plaintiff claimed that a valid agreement of sale was in existence in his favour and, as such, the defendant was not competent to transfer it to anyone else. the provisions of s. 52 of the transfer of property act were tightly invoked and applied by the trial court for holding that the sale effected in favour of the appellants was not effective against the rights of the plaintiff respondent no. 1. that apart, even the finding that the appellants were bona fide purchasers for value without notice cannot be sustained on the facts and circumstances proved on the record. the trial court mainly relied on the fact that as the agreement of sale was not disclosed in the suit filed by the vendor for partition of the property, the appellants possibly could not be in knowledge of the same. on the ground stated, the conclusion drawn was not justified. the appellants are nephews of the vendor and were joint-owners of the property in dispute. because of their close relationship and joint ownership, it could be safely inferred that the appellants must have come to know of the sale agreement in favour of respondent no. 1. moreover, before they could be held to be bona fide purchasers without notice, it had to be shown as to what enquiries they made before making the purchase. harbaksh singh (d:w. 2) who appeargh the princely stares were subject to the paramountcy of the british crown, they were considered to be foreign states by the bre competence of the vendor to transfer the property. the learned counsel for the appellants, however, urged that long-drawn litigation was going on between the vendor and the appellants and, as such, the vendor neither disclosed nor the appellant came to know about the agreement of sale. if the relations between the vendor and the appellants were not cordial, it was all the not essential to make enquiries into the title of the vendor as he was not likely to transfer the property to them in the normal course. but the argument that relations were not cordial between them is wholly misconceived because the vendor had transferred the property in favour of the appellants for an amount less by rs. 5,000/- than the amount for which he agreed to transfer it in favour of respondent no. 1. the present suit was filed after four years of the agreement of sale and by that time the price of the property in dispute must have increased at least by 25 per cent. the fact that the vendor was selling the property at a much lesser price than the market price should also have put the appellants on guard and it was necessary for them to make enquiries into his title before purchasing the same. the trial court thus, completely failed to take into consideration all the attending circumstance which led to a wrong conclusion. the finding of the trial court on the question of the appellants being bona vide purchasers without notice is, therefore, reversed.10. in result, this appeal fails and is hereby dismissed. respondent no. 1 was allowed to withdraw the amount of rs. 38,500/- deposited by him in pursuance of the decree in view of its execution having been stayed. he would now deposit the said amount within four months from today. no costs.11. appeal dismissed.