170 CIVIL COURT CASES 2020(1)

plaintiff is to be proved by him, onus to prove Will No.46 of 2002 is upon the
defendant. For proving a Will, evidence shall be admissible on framing of issue
with regard to the said Will. In case Will propounded by plaintiff is not found valid
or genuine then definitely question will arise before the Court as to whether property
in dispute is to be inherited on the basis of succession or on the basis of Will relied
upon by defendant and for that purpose, necessary evidence must be on record
and to lead such evidence, onus initially relies upon the defendant, but for want of
framing of issues in this regard there would be no occasion for defendant to lead
such evidence. Undoubtedly, the plaintiff would have right to rebut the evidence
led by defendant on this issue.
26. In aforesaid discussion, I find that trial Court has committed a mistake
in fact and law by rejecting the prayer for framing the additional issue with respect
to Will No.46 of 2002, which will definitely be causing prejudice to plaintiff and
therefore, for observation made herein-above, the reasons assigned for rejecting
the application are not valid. Therefore, impugned order dated 04.01.2018 passed
by learned Civil Judge (Junior Division), Kandaghat, District Solan is set aside and
the trial Court is directed to proceed further after framing the additional issue with
respect to Will No.46 of 2002 dated 03.09.2002 relied upon by defendant, as
proposed, in accordance with law.
27. Petition stands allowed in aforesaid terms. All pending miscellaneous
application(s), if any, also stands disposed of.
28. Record be sent back henceforth and parties are directed to appear before
the trial Court on 9th December, 2019.
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2020(1) CIVIL COURT CASES 170 (P&H)
PUNJAB & HARYANA HIGH COURT
REKHA MITTAL, J.
RSA No.5552 of 2015 (O&M), D/10.09.2019.
Surat Singh
Vs
Major Singh & Anr.
Agreement to sell - Specific performance - Suit filed after 2-1/2 years
from the target date - Not a ground to deny specific performance merely on
this ground, in the absence of evidence that plaintiff was unwilling to seek
specific performance for such a period of 2-1/2 years. (Para 10)
Counsels:
Mr.Ashish Gupta, for the Appellant
Mr.K.R.Dhawan, for the Respondents.
JUDGMENT
Rekha Mittal, J. - Challenge in the present appeal has been directed against
the judgment and decree dated 05.08.2015 passed by the Additional District Judge,
Moga whereby appeal against judgment and decree dated 11.03.2014 passed by
the trial court has been allowed and suit of the respondents-plaintiffs for possession
by way of specific performance of agreement of sale dated 06.09.2004 was allowed,
in the terms indicated in para 19 of the judgment of First Appellate Court.
2. The respondents-plaintiffs sought possession by way of specific
2020(1) Surat Singh Vs Major Singh & Anr. 171
performance of agreement to sell dated 06.09.2004 in respect of land measuring
62 kanal 7 marlas for total sale consideration of Rs.15,58,750/- out of which Rs.
12 lakh was paid as earnest money and sale deed was agreed to be executed on
06.09.2005.
3. As per case set up by the respondents-plaintiffs, they remained present in
the office of Sub Registrar concerned on 07.09.2005 as 06.09.2005 was not a day
fixed for execution of sale deeds at Dharamkot. It is further averred that respondents-
plaintiffs always remained ready and willing to perform their part of the agreement.
They issued legal notice dated 7.3.2008 calling upon the appellant to execute the
sale deed but he refused to accept it.
4. The trial court accepted plea of the respondents-plaintiffs in respect of
agreement of sale but allowed alternative relief of recovery of Rs.12 lakh with
interest @ 9% per annum from the date of execution of agreement till filing of suit
and further @ 9% per annum from the date of filing of suit till date of decree on the
principal amount and @ 6% per annum from the date of decree till realization of
principal amount, in view of its findings recorded in para 21 of the judgment of
said court.
5. The appellant-defendant did not prefer any appeal against judgment and
decree passed by the trial court, therefore, findings of the trial court in respect of
agreement of sale attained finality. The appeal preferred by the respondents-plaintiffs
asserting their claim for specific performance of the agreement was allowed by
the First Appellate Court, in view of observations recorded in para 17 and 18 of the
judgment.
6. The sole submission made by counsel for the appellant is that as per the
agreement, the sale deed was to be executed on 06.09.2005. The respondents did
not take any steps with effect from 07.09.2005 till 07.03.2008 when they purportedly
issued notice calling upon the appellant to execute the sale deed and long silence of
almost 2-1/2 years on the part of respondents negates their plea that they always
remained ready and willing to perform their part of the agreement i.e. payment of
balance sale consideration and incurring expenses of registration etc. to facilitate
execution of the sale deed. It is further submitted that in the given circumstances,
the judgment and decree passed by the Court in Appeal may be set aside and that of
the trial court allowing alternative relief of recovery with interest may be restored.
7. Counsel representing the respondents-plaintiffs, on the contrary, would
argue that though the trial court, in para 16, has held that technically plaintiffs have
succeeded in proving readiness and willingness to get the sale deed executed and
accordingly answered issue No.1(b) in favour of the respondents but still decided
issues No.1 and 3 together and allowed alternative relief of recovery in place of
principal relief of specific performance of agreement. It is further argued that
error committed by the trial court negating plea of the respondents for specific
performance of agreement of sale despite accepting their plea qua agreement of
sale and readiness and willingness to perform their part of the agreement, was
rightly rectified by the Court in Appeal.
8. I have heard counsel for the parties, perused the paper book and records.
9. Counsel for the appellant has fairly conceded that since judgment and
decree passed by the trial court was not challenged by the appellant before the
Court of District Judge, findings recorded by the trial court in respect of agreement
of sale and readiness and willingness attained finality. It is surprising that the trial
court, on the one hand had accepted plea of the respondents both in respect of
agreement of sale as well readiness and willingness to perform their part of the
agreement but still did not allow specific performance of the said agreement without
172 CIVIL COURT CASES 2020(1)
recording any reasons that the present case is covered within the purview of any
contingencies envisaged in Section 20 of the Specific Relief Act, 1963. However,
the court has held in para 17 that suit was filed at the fag end of expiry of limitation
on 24.03.2008.
10. The stipulated date for execution of sale deed was 06.09.2005. It has
been proved on record that on 07.09.2005, the respondents appeared in the office
of Sub Registrar concerned to get the sale deed executed and registered. Out of
total sale consideration of Rs.15,58,750/-, the respondents had already paid
substantial amount of Rs.12 lakh and remaining amount was to be paid towards
balance sale consideration besides incurring expenses of registration etc. There is
no plea raised by the appellant that price of the land in question had decreased
during the intervening period or the same had increased immediately before filing
of the suit. No such fact has been elicited in cross examination of the witnesses of
the plaintiffs which could create a slightest doubt in the mind of the court that
there were certain reasons that weighed in the mind of respondents-plaintiffs for
which they became unwilling to seek specific performance for a period of 2 1/2
years since expiry of stipulated date for execution of the sale deed. In the given
scenario, the mere fact that suit for specific performance was filed after about 2-
1/2 years from the target date ipso facto cannot stand in the way of respondents to
assert their right for specific performance of agreement of sale. In this view of the
matter, I do not find any reason to differ with findings recorded by the First
Appellate Court allowing specific performance of agreement of sale in preference
to alternative relief of recovery, as was allowed by the trial court.
11. In view of what has been discussed herein before, finding no merit, the
appeal fails and is accordingly dismissed. Parties are left to bear their own costs.
*****
2020(1) CIVIL COURT CASES 172 (PATNA) (DB)
PATNA HIGH COURT
HEMANT KUMAR SRIVASTAVA & PRABHAT KUMAR SINGH, JJ.
Letters Patent Appeal No.1707 of 2017 in Civil Writ Jurisdiction Case No.8078 of
2007, D/02.12.2019.
Binod Kumar Singh
Vs
The Union Of India through the Secretary Ministry of Home Affairs
Marriage - Second marriage during subsistence of first marriage -
Even consent of first wife does not give right to husband to solemnize second
marriage during life time of first wife. (Para 7)
Counsels:
Mr.Arun Kumar, Mr.Nirmal Kumar Sinha, for the Appellant
Mr.Manoj Kumar Singh, CGC, for the Respondent.
JUDGMENT
Hemant Kumar Srivastava, J. - Heard learned counsel appearing for
appellant as well as learned counsel appearing for Union of India and, in our view,
this Letters Patent Appeal can be decided on admission stage itself.
2. This Letters Patent Appeal has been filed against Judgment dated