# M/s Chaudhary Properties & Ors v. Smt. Laxmi Devi

- **Citation:** (2023) 5 ILRA 1689
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-15
- **Case number:** Second Appeal No. 318 of 2023
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-chaudhary-properties-ors-v-smt-laxmi-devi-50243
- **Pages:** 12

## Headnote

Civil Law-The Contract Act,1872-Section
10 read with Sec 2(e)- There is no case of
any party that formation of concluded oral
agreement
was
result
of
misrepresentation or undue influence or
without free will, therefore, formation of
contract under Section 10 read with
Section 2 (e) and (h) of Contract Act
cannot be denied-Agreement can be oral
and
same
is
enforceable
provided
formation of the contract is with free willIn absence of written document particular
period/time limit, prima facie, cannot be
said to be an essence for the agreement
and same cannot be ascertained in the
absence
of
written
terms
and
conditions.(Para 10, 13 & 15)

The Specific Relief Act, 1963-Section 39The court may in its discretion grant
mandatory
injunction,
when
it
is
necessary to compel the performance of
certain contracts which the court is
capable of enforcing, to prevent the
breach of an obligation and also to compel
the performance of requisite act. (Para
19)

Appeal dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,999 of 41,578. This is a partial read: ask again with offset=39999 for what follows._

5 All. M/s Chaudhary Properties & Ors. Vs. Smt. Laxmi Devi
1689
of 2022 and Criminal Appeal No.7997 of
2022 are rejected.

22. Through this common order, the
applications for suspension of the sentence
of accused-appellants Hemraj Patwa and
Vinita Devi are disposed of accordingly.

23. The observation made by this
Hon'ble Court while disposing of the
application for suspension of sentence in
Criminal Appeal No.8454 of 2022 and
Criminal Appeal No.7997 of 2022 shall
have no bearing on the outcome of the final
appeal.

24. List this appeal for hearing after
six months. If the appeal is not heard within
two years despite the cooperation and
endeavours of the accused-appellants, they
shall be at liberty to revive the prayer for
grant of bail.
----------
(2023) 5 ILRA 1689
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2023

BEFORE

THE HON'BLE DINESH PATHAK, J.

Second Appeal No. 318 of 2023

M/s Chaudhary Properties & Ors.
 ...Appellants
Versus
Smt. Laxmi Devi ...Respondent

Counsel for the Appellants:
Sri Ram Dayal Tiwari, Sri M.D. Singh
Shekhar (Sr. Advocate)

Counsel for the Respondent:
Sri Rahul Mishra, Sri Sanjay Mishra, Sri
Satendra Kumar Singh, Sri Suresh Chandra
Varma, Sri S.K. Verma
Civil Law-The Contract Act,1872-Section
10 read with Sec 2(e)- There is no case of
any party that formation of concluded oral
agreement
was
result
of
misrepresentation or undue influence or
without free will, therefore, formation of
contract under Section 10 read with
Section 2 (e) and (h) of Contract Act
cannot be denied-Agreement can be oral
and
same
is
enforceable
provided
formation of the contract is with free willIn absence of written document particular
period/time limit, prima facie, cannot be
said to be an essence for the agreement
and same cannot be ascertained in the
absence
of
written
terms
and
conditions.(Para 10, 13 & 15)

The Specific Relief Act, 1963-Section 39The court may in its discretion grant
mandatory
injunction,
when
it
is
necessary to compel the performance of
certain contracts which the court is
capable of enforcing, to prevent the
breach of an obligation and also to compel
the performance of requisite act. (Para
19)

Appeal dismissed. (E-15)

List of Cases cited:

1. Atma Ram Vs Charanjeet Singh reported in
(2020) 3 SCC 311

2. Badri Prasad Vs St .of M. P. & anr., AIR 1970
Supreme Court 706

3. Brij Mohan & ors.Vs Smt. Sugra Begum &
ors.(1990) 4 SCC 147

4. Aloka Bose & ors.Vs Parmatma Devi &
ors.(2009) 2 SCC 582

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard Shri M.D.Singh Shekhar,
learned Senior Counsel assisted by Shri
R.D.Tiwari,
learned
counsel
for
the
appellant and Shri S.K.Verma and Shri
S.K.Singh,
learned
counsel
for
the
1690 INDIAN LAW REPORTS ALLAHABAD SERIES
contesting respondents on admission of the
instant appeal and perused the record
placed on the Board.

2. Suit for mandatory injunction for
issuing a direction against the defendantsappellants to execute the registered sale
deed in favour of the plaintiff-respondent
with respect to plot no. C-107 area 300 sq.
yards situated in Ganga Vihar Colony (Pink
City), Gram Sadullabad Pargana Loni,
Tehsil
and
District
Ghaziabad
after
receiving the balance amount of Rs. 252.70
and to declare the cancellation letter dated
7.10.2011 null and void filed on behalf of
the plaintiff-respondent has concurrently
been decreed by both the courts below.
Having
been
aggrieved
against
the
decreetal of suit, defendants-appellants
have preferred the instant second appeal
assailing the judgment and decree dated
17.1.2023 passed by the learned District
Judge, Ghaziabad in Civil Appeal No.
117/19 affirming the judgment and decree
dated 3.9.2019 passed by the Civil Judge
(Senior
Division)/Fast
Track
Court,
Ghaziabad in Original Suit No. 601 of
2011.

3. Plaintiff-respondent came with the
plea that the defendants-appellants have
developed a colony in the name of Hal
Ganga Vihar Colony (Pink City) in Village
Sadullabad, Pargana Loni, Tehsil and
District Ghaziabad in the year 1986 and
advertised for allotment of several size of
plots in the said colony. In pursuance of the
advertisement, the plaintiff-respondent had
applied for allotment of plot. Consequently,
she has been allotted plot no. C-107 area
300 sq. yard @ Rs. 252.70 per sq. yard on
23.12.1987 after getting discount from the
original proposed rate i.e. Rs. 266/- per sq.
yard. Plaintiff-respondent has deposited
money
amounting
Rs.
80,500/-
on
5.1.1988. The defendants-appellants, by the
letter dated 30.12.2008, has admitted the
deposition
of
money
amounting
Rs.
83,000/- and further demanded Rs. 22,592/-
. In pursuance thereto, the plaintiffrespondent has deposited more money
amounting Rs. 51,350/-, than the demanded
amount i.e. Rs.25,592/-, on 28.1.2009.
When
the
plaintiff-respondent
has
requested to execute the sale deed in light
of
the
letter
dated
30.12.2008,
the
defendants-appellants have deferred the
execution of sale deed on the pretext of
pendency of the Writ Petition No. 22445 of
2007 wherein use of land, which has been
changed by the Ghaziabad Development
Authority, was under challenge. Through
letter dated 15.11.2009, the defendantsappellants have informed the final disposal
of the aforesaid writ petition and also
assured that the sale deed will be executed
soon. Later on, dishonesty prevailed in the
mind of the defendants-appellants who
have started demanding more money
whereas major part of the agreed amount
has already been deposited by the plaintiffrespondent. A registered letter dated
12/13.1.2010 has been sent by plaintiff to
defendants with a request to executed a
registered
sale
deed
in
her
favour.
However,
defendants-appellants
are
throughout avoiding to executed registered
sale deed, therefore, suit for mandatory
injunction has been filed against the
defendants-appellants to execute the sale
deed.

4. During pendency of the suit,
defendants-appellants
have
issued
a
cancellation
letter
dated
7.10.2011
informing the plaintiff-respondent qua
cancellation of allotment of plot made in
her favour. Plaintiff-respondent has tried to
persuade defendants-appellants to withdraw
the said cancellation letter and execute sale
5 All. M/s Chaudhary Properties & Ors. Vs. Smt. Laxmi Devi
1691
deed, however the defendants-appellants
turned a deaf ear, therefore, the plaintiffrespondent has moved an amendment
application seeking ancillary relief to
declare
the
cancellation
letter
dated
7.10.2011 null and void.

5. The defendants-appellants, though
admitted the allotment of plot no. C-107
area 300 sq. yards in favour of plaintiffrespondent and deposition of money
amounting Rs.80,500/- as well, however,
raised dispute with respect to rate of plot
and bonafide at the part of the plaintiffrespondent. It is averred in the written
statement that plaintiff-respondent has
deposited money amounting Rs.80,500/- on
5.1.1988 accepting the rate of plot @ Rs.
550/- per sq. yard. The defendantsappellants have disputed the genuineness of
letter dated 30.12.2008 for which they have
filed Original Suit No. 572 of 2010 to
declare it as null and void. In the written
statement
defendants-appellants
have
mentioned the issuance of letter dated
7.10.2011 as well which has been sought to
be declared as null and void by moving an
amendment application. The defendantsappellants have questioned the locus of the
plaintiff-respondent to file a suit and
maintainability of the plaint as well under
Order 7 Rule 11 C.P.C. and under Section
41 of the Specific Relief Act.

6. Learned Trial court has framed as
many as 9 issues and after careful
discussion of the evidence on record came
to the conclusion that the defendantsappellants are under obligation to perform
their part to complete the agreement. In
deciding issue Nos. 1 and 8, the trial court
has observed that oral agreement between
the parties, with respect to execution of the
sale deed, is evident from the allotment
letter darted 23.12.1987 and the admission
made at the part of the defendantsappellants to receive money amounting Rs.
80,500/- paid on 05.01.1988. In deciding
issue No. 2, learned trial court has observed
against defendant that cause of action arose
to file suit. Issue No. 4 with regard to nonmaintainability of suit under Section 41 of
the Specific Relief Act and issue no. 5 with
regard to bars of the suit under Order 7
Rule 11 C.P.C. have been decided in
negative. The trial court, in deciding issue
No. 9, has given a definite finding that the
plaintiff-respondent
is
entitled
for
declaratory injunction against the alleged
cancellation letter dated 7.10.2011. First
appellate court, on appeal being filed on
behalf of defendants, has formulated as
many as four points for determination and
affirmed the judgment and decree passed
by trial court.

7. Assailing the judgment and decree
passed by the courts below, learned Senior
Counsel for the defendants-appellants has
confined his argument with respect to the
maintainability of the suit on three folds
submission; (a) that, there was no written
agreement between the parties, therefore,
suit for mandatory injunction to get the sale
deed executed in favour of the plaintiffrespondent is not maintainable in the eyes
of law inasmuch as no cause of action arose
and the plaintiff-respondent has got no
locus to file a suit; (b) that, the suit for
mandatory injunction to get the sale deed
executed amounts a suit for specific
performance of contract, therefore, decree
to execute the sale deed cannot be passed
without returning definite finding with
respect to readiness and willingness at the
part of the plaintiff-respondent and (c) that,
time is the essence for specific performance
of contract, therefore, the suit filed on
behalf of the plaintiff-respondent to execute
a sale deed, in light of the allotment order
1692 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 10.12.1987, is barred by prescribed
period of limitation, therefore, it should be
dismissed on the ground of laches. In
support of his submissions, learned counsel
for the defendants-appellants has relied
upon the judgment passed by the Hon'ble
Supreme Court in the case of Atma Ram
vs. Charanjeet Singh reported in (2020)
3 SCC 311.

8. Per contra, learned counsel for the
plaintiff-respondent
has
vehemently
opposed the submissions as advanced by
the learned counsel for the defendantsappellants and contended that in absence of
written agreement inked between the
parties, suit for specific performance of
contract is not maintainable, therefore,
there is no question of considering the
readiness and willingness at the part of the
plaintiff-respondent under the provisions as
enunciated under Section 16 of the Specific
Relief Act. It is further contended that
issuance
of
allotment
letter
dated
23.12.1987 from the defendants-appellants
and
acceptance
of
fund
amounting
Rs.80,500/- dated 5.1.1988 at their part
explicitly
establishes
the
valid
oral
agreement took place between the parties,
therefore, the defendants-appellants cannot
withdraw themselves from the obligation at
their part of the agreement. It is next
contended that under Section 39 of the
Specific Relief Act, the Court is competent
in its discretion to grant an injunction for
performance of certain acts to prevent the
breach of an obligation. It is also contended
that in absence of any written agreement,
time factor cannot be taken as an essence of
the oral agreement took place between the
parties,
therefore,
in
the
given
circumstances, there is no question to
consider the point of limitation in filing the
suit. Learned counsel for the plaintiffrespondent has made emphasis on the
judgement dated 11.1.2021 passed by
coordinate Bench of this Court in Second
Appeal No. 439 of 2020; M/s Chowdhary
Properties and two others vs. Vipin
Bahadur and Another wherein identical
matter has been decided by this Court
against the M/s Chowdhary Properties and
others, who are also the defendantsappellants in the instant Second Appeal in
hand. In aforesaid Second Appeal No. 439
of 2020, suit was filed on similar set of
facts wherein plaintiff (in the said suit) was
allotted plot no. A-74 in the colony known
as Pink City.

9. Having considered the rival
submissions advanced by the learned
counsel for the parties and perusal of
record, it reveals that the defendants are the
colonizers, who have advertised widely to
sell their plots carved out in the colony
known as 'Pink City'. Attracting to the
advertisement, plaintiff has proceeded to
allot the plot C-107, area 3 square yards
and, accordingly, deposited the money.
Facts with respect to the allotment of the
plot in favour of the plaintiff, vide
allotment letter dated 23.12.1987, and
receiving money amounting Rs. 80,500/-
on 5.1.1988, have been admitted by the
defendants. However, the defendants have
raised dispute qua rate of plot to be Rs.
550/- per square yard in place of Rs. 252.70
paise per square yard as claimed by
plaintiff, which was agreed upon between
the parties after concession from the
original rate i.e. at the rate of Rs. 266/- per
square yard. There is also dispute with
regard to default in the payment of
consideration amount. As per the plaintiff
case, she has deposited entire money even
more than required as demanded by the
defendants, vide letter dated 3.12.2008,
whereas, on the other hand defendants has
disputed the payment of entire money and
5 All. M/s Chaudhary Properties & Ors. Vs. Smt. Laxmi Devi
1693
blamed to the plaintiff for default in
payment.

10. In the given circumstances of the
present case, it is evident that the proposal
made on behalf of the defendant with
respect to the allotment of plot in the
colony known as 'Pink City' has been
accepted by the plaintiff and in furtherance
thereof, the plaintiff has deposited the
money on 23.12.1987 amounting to Rs.
2,500/- (paper No. 8C) and after accepting
said
amount,
the
defendant/coloniser
(promissor) has issued allotment letter on
the same day i.e. 23.12.1987 to allot the
plot No. C-107 admeasuring area 300
square yards in favour of the plaintiff, who,
in turn, has deposited money on 5.1.1988
amounting Rs. 80,500/- (paper No. 9-C). At
later stage, the defendants have issued a
letter dated 30.12.2008 (paper No. 10-C)
demanding additional amount of Rs.
22,592/-. In pursuance thereof, the plaintiff
has deposited Rs. 51,350/- on 28.1.2009. In
this view of the matter, the existence of
concluded oral agreement taken place
between the parties cannot be denied. The
aforesaid proposition of law has carefully
been considered by the learned trial court
while deciding the issue No. 1 and 8. There
is no case of any party that formation of
concluded oral agreement was result of
misrepresentation or undue influence or
without free will, therefore, formation of
contract under Section 10 read with Section
2 (e) and (h) of Contract Act cannot be
denied. Learned trial court has held the
valid
relationship
of
transferor
and
transferee between the parties. In support of
its finding, he has relied upon the following
cases:

(i) Badri Prasad Vs. State of
Madhya Pradesh and another, AIR 1970
Supreme Court 706,

(ii) Brij Mohan and others Vs.
Smt. Sugra Begum and others (1990) 4
SCC 147 and

(iii) Aloka Bose and others Vs.
Parmatma Devi and others (2009) 2 SCC
582.

11. I am convinced with the findings
returned by the trial court who has decided
the case after considering the evidence on
record in right perspective, which has
appropriately been affirmed by the first
appellate court, that there was an existence
of concluded oral agreement between the
parties, which is enforceable in the eye of
law.

12. So far as non-existence of written
agreement
between
the
parties
is
concerned, as submitted by the learned
counsel for the appellants in his first
submission, I am of the considered view, as
discussed in preceding paragraph, that there
is no legal requirement under the law for
written document to enforce the agreement
which took place between the parties.
Agreement can be oral and same is
enforceable provided formation of the
contract is with free will. Hon'ble Supreme
Court in the matter of Brij Mohan and
others (supra) has clearly observed in
paragraph 20 of its judgment as follows:-

"There is no requirement of law
that an agreement or contract of sale of
immovable property should only be in
writing. However, in a case where the
plaintiffs come forward to seek a decree for
specific performance of contract of sale of
immovable property on the basis of an oral
agreement alone, heavy burden lies on the
plaintiffs to prove that there was consensus
ad idem between the parties for a
concluded oral agreement for sale of
immovable property. Whether there was
1694 INDIAN LAW REPORTS ALLAHABAD SERIES
such a concluded oral contract or not would
be a question of fact to be determined in the
facts and circumstances of each individual
case. It has to be established by the
plaintiffs that vital and fundamental terms
for sale of immovable property were
concluded between the parties orally and a
written agreement if any to be executed
subsequently would only be a formal
agreement incorporating such terms which
had already been settled and concluded in
the oral agreement." (Para 20)

12. Same view was pronounced by
Hon'ble Supreme Court in the matter of
Aloka Bose (supra). In paragraph Nos. 16,
17 and 18 of the judgment, it has been held
as follows:-
"An agreement of sale comes into existence
when the vendor agrees to sell and the
purchaser agrees to purchase, for an agreed
consideration on agreed terms. It can be
oral.
It
can
be
by
exchange
of
communications which may or may not be
signed. It may be by a single document
signed by both parties. It can also be by a
document in two parts, each party signing
one copy and then exchanging the signed
copy as a consequence of which the
purchaser has the copy signed by the
vendor and a vendor has a copy signed by
the purchaser. Or it can be by the vendor
executing the document and delivering it to
the purchaser who accepts it. (Para 16)

Considering Section 10 of the
Contract Act, 1872 and the proviso thereto,
no attention has been drawn to any law
applicable in the State concerned at the
relevant time, which requires an agreement
of sale to be made in writing or in the
presence of witnesses or to be registered.
Therefore, even an oral agreement to sell is
valid. If so, a written agreement signed by
one of the parties, if it evidences such an
oral agreement will also be valid. In India,
an agreement of sale signed by the vendor
alone and delivered to the purchaser, and
accepted by the purchaser, has always been
considered to be a valid contract. In the
event of breach by the vendor, it can be
specifically enforced by the purchaser.
There is, however, no practice of the
purchaser alone signing an agreement of
sale.".

(Paras 17 and 18)

13. Having considered the pleading of
the parties and dictum of Hon'ble Apex
Court, as cited above, it cannot be said that
oral agreement instituted is not enforceable
and suit for mandatory injunction to get the
sale deed executed on behalf of plaintiff is
not
maintainable.
Plaintiff,
being
a
bonafide purchaser, has paid Rs. 2,500/- +
80,500/- to dependants, who in turn have
accepted said amount and issued allotment
letter dated 23.12.1987, however, later on
they have refused to execute sale deed.
Therefore, cause action arisen compelling
the plaintiff to institute a civil suit to
protect her legal rights. As such, I found no
force in the first submission advanced by
learned
counsel
for
the
defendants/appellants.

14. So far as the second submission
advanced by the learned counsel for the
appellant treating the suit as suit for
specific performance of contract and
requirement of finding on readiness and
willingness, is concerned, written statement
evince that defendants have not taken such
plea in their written statement. They have
simply disputed the rate of land and
pleaded default in payment of demanded
money at the part of the plaintiff. However,
in the given circumstances, conduct of the
parties explicitly indicates their intention to
enter into an agreement for the purposes of
5 All. M/s Chaudhary Properties & Ors. Vs. Smt. Laxmi Devi
1695
sale and purchase of the plot in question.
Proposal
made
by
the
defendants
(promissor), through advertisement was
accepted
by
the
plaintiff/purchaser
(promisee) creates the formation of contract
between them. Even in absence of a written
document, the plaintiff cannot be deprived
of to protect her rights which occurred after
accepting the proposal made by the
promissor and she has acted upon in
pursuance of that proposal. Though, in my
opinion, in the absence of any written
agreement between the parties explaining
the specific terms and conditions the
ingredients as required under Section 16 (c)
of Specific Relief Act qua readiness and
willingness at the part of the plaintiff to
perform her part of contract cannot be
ascertained, intention of the plaintiff to
purchase the allotted land is explicit by her
conduct when she had hurriedly deposited
the money and obtained the allotment order
in her favour and, according to the plaintiff,
she has made full payment. As per the
pleadings made by the parties, execution of
the sale deed was hampered due to
pendency of the writ petition being Writ
Petition No. 22445 of 2007. Vide letter
dated 15.11.2009, the defendants have
informed the plaintiff qua decision dated
26.10.2009 in the said writ petition. Even
assuming for the sake of arguments that the
courts below have not given any finding
with
respect
to
the
readiness
and
willingness, I am of the considered view
that, prima facie, bonafides of the plaintiff
in performing her part of oral contract
cannot be denied considering the last
payment made by her in pursuance of
demand
letter
dated
30.12.2008
and
registered notice dated 12/13.9.2010 sent to
defendants to execute registered sale deed
qua allotted plot. It is explicitly evident that
the last price fixed by the defendants was
1,11,150/- whereas against the said amount,
the plaintiff has already deposited money
amounting Rs. 1,34,350/-. As per the case
of the plaintiff, she is ready to pay the
remaining amount, if any, for the purposes
of execution of the sale deed, therefore, due
diligence and boanfides at the part of the
plaintiff cannot be denied in this matter.

15. The third submissions, as
advanced by the learned counsel for the
appellant qua limitation in filing the suit, is
unfounded
as
well.
In
the
given
circumstances of the present case, as
discussed above, there is no-existence of a
written document reciting the condition of
time limit/period qua execution of sale
deed, which is admitted to both the parties,
therefore,
particular
period/time
limit,
prima facie, cannot be said to be an essence
for the agreement and same cannot be
ascertained in the absence of written terms
and
conditions.
In
this
peculiar
circumstances, the law of limitation to file
suit for mandatory injunction cannot be
said to be applicable in the instant matter.
Relying upon the case of Atma Ram
(supra) learned counsel for appellant has
tried to submit that even if the suit was
filed for the mandatory injunction and the
same has been treated as a suit for specific
performance of contract, therefore, in that
eventuality, amendment of plaint was
required under Order 6 Rule 17 CPC, and
the limitation would be considered from the
date of amendment carried out in the plaint
for the purpose of competence of the suit.
There is no doubt qua proposition of law
that specific time, in case, prescribed under
the terms and conditions of the contract
took place between the parties, same shall
be the relevant date for enforcement of the
contract and law of limitation will apply
accordingly. It is also settled that where the
amendment relates to the limitation of
filing the suit, the limitation will be
1696 INDIAN LAW REPORTS ALLAHABAD SERIES
reckoned
considering
the
date
of
amendment in the pleading which shall be
relevant date for the purposes of deciding
the competence of the suit which was
required to be filed within the prescribed
period of limitation. Such amendment bears
on law of limitation and is exception to the
doctrine of relation back. In the cited case,
as relied upon by the learned Senior
Advocate, suit was filed for mandatory
injunction to direct the respondent to
execute the documents of transfer of
property in question after receiving balance
sale
consideration
and,
accordingly,
Court's fee was paid by the plaintiff. It
appears that the said suit was filed on the
basis of an agreement dated 12.10.1994
which had taken place between the parties.
Respondents have filed written statement
denying the pleading made by the plaintiff
including the execution of the agreement.
He has also questioned the maintainability
of the suit in the form in which it was filed.
During the pendency of the said suit, the
defendant has moved an application with
respect to the maintainability of the suit on
the ground that the suit is not maintainable
for
the
enforcement
of
specific
performance of contract of sale. Learned
trial court has disposed of said application
holding that suit was in fact one for specific
performance of agreement to sale and the
technical
objection
regarding
the
maintainability could be overcome by
directing the plaintiff to pay the requisite
court's fee and, accordingly, the trial court
has directed the plaintiff to cure the defect
by depositing the court fee. In pursuance of
the said order, the plaintiff has deposited
the court fee. In this backdrop of the case,
Hon'ble Supreme Court has held that in the
event of suit for specific performance, the
plaintiff ought to have submitted the
requisite court fee of the value on the basis
of the sale consideration mentioned in the
agreement. It is further observed that, in
case, the suit is only for the mandatory
injunction then the recourse is open for the
plaintiff to seek an amendment under Order
6 Rule 17 of the CPC. It is further observed
that law of limitation will, accordingly, be
applicable. The relevant paragraph No. 7, 8
and 9 of judgment Atma Ram (supra)
relied upon by the learned Senior Advocate
for the appellant is quoted hereinbelow:

7. As a matter of fact, if the suit
was actually one for specific performance,
the petitioner ought to have at least valued
the suit on the basis of the sale
consideration mentioned in the agreement.
But he did not. If the suit was only for
mandatory injunction (which it actually
was), the only recourse open to the
petitioner was to seek an amendment under
Order 6 Rule 17 CPC. If such an
application had been filed, it would have
either been dismissed on the ground of
limitation (K. Raheja Constructions Ltd. v.
Alliance Ministries) or even if allowed, the
prayer for specific performance, inserted by
way of amendment, would not have been,
as a matter of course, taken as relating back
to the date of the plaint (Tarlok Singh v.
Vijay Kumar Sabharwal, Van Vibhag
Karamchari Griha Nirman Sahkari Sanstha
Maryadit v. Ramesh Chander). Therefore, a
short-cut was found by the petitionerplaintiff to retain the plaint as such, but to
seek permission to pay deficit court fee, as
though what was filed in the first instance
was
actually
a
suit
for
specific
performance. Such a dubious approach
should not be allowed especially in a suit
for specific performance, as the relief of
specific performance is discretionary under
Section 20 of the Specific Relief Act, 1963.

8. It may be true that the
approach of the High Court in non-suiting
the petitioner-plaintiff on the ground of
5 All. M/s Chaudhary Properties & Ors. Vs. Smt. Laxmi Devi
1697
limitation, despite the original defect
having been cured and the same having
attained finality, may be faulty. But we
would not allow the petitioner to take
advantage of the same by taking shelter
under Section 149 CPC, especially when he
filed the suit (after more than three years of
the date fixed under the agreement of sale)
only as one for mandatory injunction,
valued the same as such and paid court fee
accordingly, but chose to pay proper court
fee
after
being
confronted
with
an
application for the dismissal of the suit.
Clever ploys cannot always pay dividends.

9. Coming to the second aspect
revolving around Section 16(c), a look at
the judgment of the trial court would show
that no issue was framed on the question of
readiness and willingness on the part of the
petitioner-plaintiff in terms of Section 16(c)
of the Specific Relief Act, 1963. The fact
that the petitioner chose to issue a legal
notice dated 12-11-1996 and the fact that
the petitioner created an alibi in the form of
an affidavit executed before the SubRegistrar on 7-10-1996 (marked as Ext. P2) to show that he was present before the
Sub-Registrar
for
the
purpose
of
completion of the transaction, within the
time stipulated for its performance, was not
sufficient to conclude that the petitioner
continued to be ready and willing even
after three years, on 13-10-1999 when the
plaint was presented. No explanation was
forthcoming from the petitioner for the
long delay of three years, in filing the suit
(on 13-10-1999) after issuing a legal notice
on 12-11-1996. The conduct of a plaintiff is
very crucial in a suit for specific
performance. A person who issues a legal
notice on 12-11-1996 claiming readiness
and willingness, but who institutes a suit
only on 13-10-1999 and that too only with
a prayer for a mandatory injunction
carrying a fixed court fee relatable only to
the said relief, will not be entitled to the
discretionary
relief
of
specific
performance."

16. The facts and circumstances of the
cited cases are distinguishable from that of
the given circumstances in the case in hand.
In the present matter, terms and conditions
of the agreement are not taken down in the
nature of document, however, the oral
agreement between the parties is concluded
by their conduct. Issuance of allotment
letter and acceptance of sale consideration
at
the
part
of
defendant/colonizer
(promissor) is sufficient to prove the
formation of contract between the parties.
There is nothing on the record to prove that
the time was essence of the agreement as
the same has not been specified any where.
In case in hand, there is no judicial order to
treat/convert
the
suit
for
mandatory
injunction
in
the
suit
for
specific
performance of contract nor the plaint has
been modified/corrected by moving any
amendment application or by submitting
the court fee treating it to be a suit for
specific performance of contract, therefore,
in my opinion, there is no case of
incompetence of suit being barred by
prescribed period of limitation. More so,
Writ Petition No. 22445 of 2007 was
decided on 26.10.2019, thereafter, plaintiff
has
sent
registered
notice
dated
12/13.9.2010 to the defendants requesting
them to execute sale deed qua allotted plot
and file suit within three years i.e. on
12.3.2011. Therefore, suit cannot be treated
to be filed beyond prescribed period of
limitation from the date when cause of
action arose.

17. While filing the instant appeal, the
appellant has formulated as many as 12
substantial questions of law as averred at
the bottom of the memo of appeal. For
1698 INDIAN LAW REPORTS ALLAHABAD SERIES
ready
reference,
they
are
quoted
hereinbelow:

"A. Whether the courts below
illegally granted the relief of specific
performance of contract in suit in which the
relief was sought for the mandatory
injunction without amendment of any relief
in the suit which was simple suit of
mandatory injunction?

B. Whether, courts below have
committed manifest illegality treating the
suit of mandatory injunction as a suit for
relief of specific performance of contract
and granted the relief?

C. Whether, the suit of the
plaintiff-respondent was not maintainable
and the plaint is liable to be rejected under
Order-VII Rule 11 of C.P.C.?

D. Whether, suit of the plaintiff
respondent for the relief which was granted
by courts below was barred by limitation
the court below had failed to consider that
allotment of the plot was alleged to have
done on 23.12.1987 and suit being O.S. 601
of 2011 was filed on 17.3.2011 after 24
years?

E. Whether the relief of specific
performance of the contract suit was barred
by limitation even though the court below
decreed the suit granting relief of specific
performance of the contract in the suit for
mandatory injunction?

F.
Whether,
there
was
no
agreement to sell registered or unregistered
in between the parties nor any concluded
enforcement contract even though the
courts below decreed the suit for specific
performance of the contract which is liable
to be set-aside?

G.
Whether
on
1.1.1977
amendment had taken place in Section 54
of the transfer of the property Act and
17(2) of the Registration Act by which
agreement to sell regarding the agricultural
property are require to be registered
document in the present no registered or
unregistered agreement even though the
court below decreed the suit of mandatory
injunction treating the same as suit for
specific performance of the contract hence
judgment and decree passed by courts
below is liable to be set-aside?

H. Whether, in the suit of
plaintiff-respondent no relief could be
granted as per provision of Section 41-E
and 41H of the Specific Relief Act but the
court below had not consider the said
aspect of the matter as such the judgment
and decree passed by courts below is liable
to be set-aside?

I. Whether, courts below had
committed gross illegality the valuation of
the disputed plot as Rs. 266 per sq. gaj
while valuation settled Rs. 550/- per sq. gaj
at the time of booking of plot in the year
1987 and no evidence was produced by the
plaintiff-respondent about the valuation
even though the courts below in arbitrary
manner held the valuation Rs. 266/- per sq.
gaj?.

J. Whether, as per the booking
development charge is liable to be paid by the
booking holder of the plot but the courts
below have not considered this aspect of the
matter as such judgment and order of the
courts below is liable o be set-aside?

K. Whether, suit for specific
performance can be decree without framing
any issue and without deciding readiness
and willingness as contemplated U/s 16 (C)
of specific Relief Act?

L. Whether, booking of the plot
was done on 23.12.1987 and suit was filed
after 24 years on 17.3.2011 hence the suit
was time barred and liable to be barred
under Order VII Rule-11 C.P.C.?"

18. I have carefully considered all the
substantial questions of law as formulated
5 All. M/s Chaudhary Properties & Ors. Vs. Smt. Laxmi Devi
1699
by the appellants which appears to be
misconceived
and
non-substantial
as
emerges from the facts and circumstances
of the present case. Considering the short
submissions advanced by the learned
Senior Advocate for the appellants in the
light of the given circumstances of the
present case, I am of the view that the
courts below have rightly decreed the suit
for mandatory injunction directing the
defendants-appellants to execute the sale
deed in favour of the plaintiff after
receiving the money amounting Rs. 2,500/-
and declared the cancellation letter dated
7.10.2011 to be null and void. Issuance of
cancellation letter dated 7.10.2011 at
subsequent stage during the pendency of
the suit explicitly indicates the malafide
intention of the defendants, who have
deliberately taken such a step after
institution of the suit just to avoid their
obligation which they promised to be
fulfilled at the time of allotment of the plot
in question i.e. plot No. C-107 measuring
area 300 square yards through allotment
letter dated 23.12.1987. It would not be out
of context to cite the provisions of Section
39 of Specific Relief Act, which is quoted
hereinbelow:

"39.
Mandatory
injunctions.-
When, to prevent the breach of an
obligation, it is necessary to compel the
performance of certain acts which the court
is capable of enforcing, the court may in its
discretion grant an injunction to prevent the
breach complained of, and also to compel
performance of the requisite acts."

19. A simple reading of the provisions
as enunciated under Section 39 of the
Specific Relief Act connotes that the court
may in its discretion grant mandatory
injunction, when it is necessary to compel
the performance of certain contracts which
the court is capable of enforcing, to prevent
the breach of an obligation and also to
compel the performance of requisite act.
Applying the aforesaid provision, in the
given circumstances, it is explicit that the
defendants are at the fault who are trying to
avert their obligation to perform part of
their
contract,
which
was
concluded
between the parties. Appellants have
received
the
consideration
money,
however, averted their part to execute the
registered sale deed in favour of the
plaintiff/respondent. In this backdrop of the
case, the suit for mandatory injunction has
rightly
been
filed
by
the
plaintiffrespondent
against
the
defendantsappellants and the courts below have
rightly decreed the suit upholding the
entitlement of the plaintiff for mandatory
injunction
and
for
the
declaratory
injunction
as
well
declaring
the
cancellation letter dated 7.10.2011 null and
void. Overall conduct of the plaintiff, from
the date of depositing the money up to the
date of sending the registered letter in the
nature of notice, indicates the bonafide
intention of the plaintiff to get the sale deed
executed in her favour.

20. Moreover, the Court cannot
oblivious as well to the judgment dated
11.1.2021 passed by the co-ordinate Bench
of this Court in second appeal No. 439 of
2020 rendered in the similar facts and
circumstances of the case wherein another
plot No. A-74 situated in the 'Pink City'
has been promised to be transferred by the
present defendants/appellants. Suit filed on
behalf
of
plaintiff
(allottee)
has
concurrently been decreed by the trial court
as well as first appellate court, and
ultimately culminated in favour of the
plaintiff by dismissing the second appeal
filed on behalf of the defendant (colonizer)
vide judgment dated 11.1.2021.
1700 INDIAN LAW REPORTS ALLAHABAD SERIES

21. In this conspectus as above, I am
of the considered view that the bonafide
claim of the plaintiff cannot be denied on
hyper technical grounds as tried to be
submitted by the learned counsel for the
appellants, whereas, they have failed to
make out any substantial questions of law
to entertain the instant second appeal
against the judgment and decree, under
challenge, passed by the courts below.

22. After careful consideration of the
matter in hand, I failed to find out any
substantial questions of law so as to
interfere in the concurrent finding of fact
returned by the courts below in exercise of
second appellate jurisdiction under Section
100 CPC. It is settled that with respect to
the questions of fact, the first appellate
court is the last court of facts. At the
second appellate stage, no second appeal
under Section 100 CPC can be entertained
without making out a substantial question
of law. Submission as raised by the learned
Senior Advocate for the appellant cannot
be treated to be a substantial questions of
law in the given circumstances of the
present case.

23. Resultantly, the present writ
petition, being devoid of merits and
misconceived, is dismissed with no order as
to the costs.
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(2023) 5 ILRA 1700
APPELLATE JURISDICTION
CIVIL SIDE
DATED:LUCKNOW 15.05.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal No. 228 of 2023

Dr. R.M.L.