Om Parkash vs Om Parkash

L.N. Mittal, J.—This is second appeal by defendant No. 1 Om Parkash son of Jiwan who has been unsuccessful in both the courts below.

Suit was filed by respondent No. 1/plaintiff Om Parkash son of Bhagwan Singh against appellant and impleading proforma respondents No. 2

to 5 as proforma defendants No. 2 to 5. They are brothers of the plaintiff. Plaintiff''s case is that defendant No. 1 agreed to sell the suit land

measuring 30 kanals 16 marlas to plaintiff and proforma defendants No. 2 to 5 i.e. all the respondents in the instant appeal, for Rs. 3 lacs and

received Rs. 75,000/-as earnest money and executed agreement dated 10.6.1993. Sale deed was to be executed upto 30.8.1993. However, on

23.6.1993, defendant No. 1 received further amount of Rs. 50,000/- from the respondents against writing and date for execution of sale deed was

extended upto 30.9.1993. Defendant No. 1 had mortgaged the suit land with Punjab National Bank. For redemption thereof, plaintiff paid Rs.

70,000/- to defendant No. 1 on 20.3.1994 against execution of pronote and receipt although amount was paid with reference to the agreement.

However, defendant No. 1 did not get the mortgage redeemed. Plaintiff sent notice dated 7.7.1994 to defendant No. 1 who gave reply on

20.7.1994 and accordingly the plaintiff went to the office of Sub Registrar on 1.8.1994 for getting sale deed executed as per agreement, but

defendant No. 1 did not turn up. Plaintiff sent reply to notice of defendant No. 1 on the same day. Defendant No. 1 was asked to get the

attachment of suit property vacated. It appears that meanwhile, the suit land was attached at the instance of the Bank. Defendant No. 1 gave

evasive reply on 17.8.1994. At the time of agreement, plaintiff was not aware that the suit land had been mortgaged with or attached by Punjab

National Bank. Defendant No. 1 committed breach of agreement. Plaintiff was always ready and willing to perform his part of contract.

Defendant No. 1 in his written statement admitted execution of the agreement and receipt of Rs. 75,000/- as earnest money at that time.

Defendant No. 1 also admitted receiving further amount of Rs. 50,000/- on 23.6.1993 against writing. However, defendant No. 1 controverted

other plaint allegations. Receipt of further amount of Rs. 70,000/- was denied. It was pleaded that plaintiff was not ready and willing to perform his

part of the contract. On 1.8.1994, defendant No. 1 went to the office of Sub-Registrar and also sent reply dated 17.8.1994 to notice dated

1.8.1994 of the plaintiff. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Mohindergarh vide judgment and decree dated 2.3.2004 decreed the plaintiff''s suit. First appeal

preferred by defendant No. 1 has been dismissed by learned District Judge, Narnaul vide judgment and decree dated 15.3.2007. Feeling

aggrieved, defendant No. 1 has preferred the instant second appeal.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the appellant vehemently contended that according to the plaintiff''s version, he learnt of the mortgage in last week of

August, 1993 but still he did not mention about it in his notice dated 7.7.1994. It was also contended that the plaintiff was not ready and willing to

perform his part of the contract and therefore, he is not entitled to discretionary relief of specific performance. It was also contended that the

plaintiff in notice dated 1.8.1994 mentioned about the mortgage but did not mention about his presence in the office of Sub Registrar. It was also

contended that defendant No. 1 remained present in the office of Sub Registrar on 1.8.1994 to perform his part of the contract and also got

affidavit Ex. D2 attested to depict his presence there. Learned Counsel for the appellant has placed reliance on two judgments of the Hon''ble

Supreme Court in Lourdu Mari David and others Vs. Louis Chinnaya Arogiaswamy and others, and A.C. Arulappan Vs. Smt. Ahalya Naik, to

buttress his contention that the plaintiff is not entitled to relief of specific performance.

On the other hand, learned Counsel for the plaintiff contended that land was mentioned to be free from encumbrances in the agreement although

it was already under mortgage and defendant No. 1 concealed this material fact at the time of agreement. It was also contended that notice dated

1.8.1994 Ex. PW7/B was sent by the plaintiff to defendant No. 1 during the course of the day but plaintiff got his affidavit affirmed at the end of

the day regarding his presence in the office of Sub Registrar. It was also contended that the plaintiff has always been ready and willing to perform

his part of the contract. Defendant No. 1 did not get the mortgage of suit land redeemed and committed breach of the agreement.

I have carefully considered the rival contentions. It is aptly said that those who live in glass houses should not throw stones on others. Learned

Counsel for the appellant has referred to alleged conduct of the plaintiff but the appellant has not peeped into his own conduct. He entered into

agreement with the respondents for sale of the suit land without disclosing that the land was already under mortgage with the Bank. The appellant

concealed this material fact and therefore, it cannot be said that plaintiff was at fault.

As regards readiness and willingness of the plaintiff, it was the plaintiff who sent first notice dated 7.7.1994 for getting the sale deed executed as

per agreement. Defendant No. 1/appellant sent reply dated 20.7.1994 requiring plaintiff to get the sale deed executed on 1.8.1994. Accordingly,

the plaintiff went to the office of Sub Registrar on 1.8.1994 and his presence there is depicted by his affidavit of even date. When defendant No. 1

himself vide his reply dated 20.7.1994 required the plaintiff to get the sale deed executed on 1.8.1994, the plaintiff cannot be non-suited on the

ground that the plaintiff was not ready and willing to perform his part of the contract earlier. The contention that the plaintiff was earlier not ready

and willing to perform his part of the contract since 30.9.1993 does not lie in the mouth of appellant-defendant No. 1. Moreover, it cannot be said

that the plaintiff earlier was not ready to perform his part of the contract. The land was under mortgage. Defendant No. 1 did not get the mortgage

redeemed. Plaintiff attended the office of Sub Registrar on 1.8.1994. Consequently, it cannot be said that the plaintiff was not ready and willing to

perform his part of the contract. On the other hand, the entire default was on the part of defendant No. 1/appellant because he agreed to sell the

suit land stating it to be free from encumbrances although it was already under mortgage. The plaintiff wanted the mortgage to be redeemed but

defendant No. 1 did not get it redeemed. It may also be added that time is not the essence of the contract in agreement to sell immovable property

unless specifically made so by the parties expressly or impliedly by their conduct. In the instant case, it is not even the stand of defendant No. 1

that time was essence of the contract and in fact by sending reply dated 20.7.1994 requiring plaintiff to get the sale deed executed on 1.8.1994,

defendant No. 1 exhibited the intention of the parties that time was not the essence of the contract and the contract could still be performed. The

plaintiff had already expressed his readiness to perform his part of the contract by sending notice dated 7.7.1994 and again did so by sending

notice dated 1.8.1994 and by being present in the office of Sub Registrar on 1.8.1994 and also by filing instant suit on 10.11.1994.

For the reasons aforesaid, I have no hesitation in affirming concurrent finding of the courts below that the plaintiff was always ready and willing

to perform his part of the contract and breach of the contract was committed by defendant No. 1. Finding of the courts below against the appellant

is based on proper appreciation of evidence and cannot be said to be perverse or illegal warranting interference in second appeal. Lower appellate

court is final court of fact. No question of law much less substantial question of law arises for determination in the instant second appeal. The

appeal is dismissed being devoid of any merit.