Decided on September 19,1957



- (1.) THIS is a first appeal against the preliminary decree of Shri Chaman Lal Puri, subordinate Judge, First Class, Amritsar, dated 24th of May, 1949, for the recovery of Rs. 5,675/- with costs in favour of the plaintiff and against defendants nos. 1 and 3 and dismissing the suit against defendant No. 2.
(2.) THE facts giving rise to this appeal are as under. House No. 626/11, situate in kucha Kadan, Amritsar, was the property of Sat Prakash major and Bhupindar parkash minor, sons of Shri Tara Chand Khatri. Some time before partition of the country an application tor the appointment of a guardian for the person and property of Bhupindar Parkash minor was made to the High Court at Lahore and the High Court appointed Sat Parkash, brother of the minor, and Smt. Gita Wanti, mother of the minor, as joint guardians. On 15th of May, 1946, Sat Parkash and Smt. Gita Wanti executed an agreement for sale of the said house in favour of Dr. Bodh Raj plaintiff for a sum of Rs. 27,500/ -. At the time of the execution of the agreement, Bat Parkash and Smt. Gita Wanti received Rs. 5,000/-from the plaintiff by means of a cheque, dated 15th of May, 1946, drawn on the Prabhat Bank, Limited, Amritsar. The terms of the agreement of sale were that the price of the property agreed to be sold was to be Rs. 27,500/-, that Rs. 5,000/-paid by means of a cheque was to serve as earnest money, that defendants Nos. 1 and 3, Sat Parkash and Smt. Gita Wanti, were to obtain sanction of the High Court at Lahore for sale of the house on behalf of the minor, and that the sale deed was to be executed as soon as the said sanction was obtained. Sat Parkash had executed the agreement both in his personal capacity and as a guardian of the minor jointly acting with Smt. Gita Wanti who signed the agreement merely in her capacity as a joint guardian. The plaintiff alleged that, though repeatedly asked, defendants Nos. 1 and 3 did not obtain the sanction of the High Court at Lahore and that the contract of sale could not, therefore, be completed. He sued for the refund of Rs. 5,000/-paid by him as earnest money together with Rs. 675/- as interest on the same calculated at 6 per cent, per annum from the date of payment till the date of suit and further prayed that this amount may be held to be a charge on the property in question. The plaintiff also claimed future interest at the same rate from the date of the suit till realisation of the amount. The defendants resisted the suit on the preliminary grounds that the Court at Amritsar had no jurisdic tion to try it and that the plaint was not in the prescribed form and was thus liable to be rejected. Three preliminary issues about these objections were framed by the learned trial Court on 20th of November, 1948, and were decided against the defendants on 22nd of december, 1948. There is now no dispute with regard to the points covered by the order referred to above and it is not necessary, therefore, to go into details either of the objections or of the order disposing of the same. On merits, the defendants pleaded that defendants Nos. 1 and 8 did make an application to the Lahore High Court for getting permission to sell the property as guardians for the minor, defendant No. 2 that the said application was dismissed in default on 5th of March, 1947, that another application was thereafter made to the High Court at Lahore and that the proceedings were still pending in the High Court, and hence the plaintiff was not entitled to sue for the return of the earnest money. Five issues were framed by the learned trial Court on merits and they are as under: 1. Were the defendants ready and willing to perform their part of the contract as contained in Exhibit P-2? 2. To what interest, if any, is the plaintiff entitled by way of damages?
(3.) IF issue No. 1 be not proved, then was not the plaintiff entitled to get back Rs. 5,000/-paid by him as earnest money?;

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