R. H. Zaidi, J. - (1.) Heard learned counsel for the appellant.
(2.) This is a defendant's second appeal arising out of a suit for specific performance of the contract of sale and is directed against the judgment and decree dated 29.8.2000 whereby the suit of the plaintiff-respondent has been decreed for alternative relief, i.e. for recovery of Rs. 50,000/- with interest at the rate of 6 per cent per annum.
(3.) It appears that the plaintiff-respondent filed suit No. 684 of 1993 for specific performance of contract of sale pleading that the defendant entered into an agreement of sale on 20.11.1990 and agreed to transfer the land in dispute in favour of the plaintiff respondent for an amount of Rs. 1,20,000/-. It was pleaded that Rs. 1,00,000/- was paid as earnest money. It was also pleaded that the plaintiff-respondent was ready and willing to perform his part of the contract but the sale deed was not executed, hence the suit filed by the plaintiff-respondent was liable to be decreed. The defendant denied the claim of the plaintiff-respondent. The trial court after going through the pleadings of the parties, framed necessary issues. Parties in support of their cases produced evidence, oral and documentary. The trial court after going through the evidence on the record, recorded findings against the plaintiff-respondent and dismissed the suit by its judgment and decree dated 24.7.1998. Challenging the validity of the said decree the plaintiff-respondent filed an appeal before the court below. The court below also affirmed the findings recorded by the trial court on some of the issues, however, decreed the suit for recovery of the amount of Rs. 50,000/- as the said amount was admittedly paid to the defendant-appellant. The court below after going through the evidence on the record held as under: 4. Learned counsel for the appellant vehemently urged that the court below has acted illegally in decreeing the suit for recovery of Rs. 50,000/- because the alternative relief for recovery of money was not prayed for and that the claim for the said amount was barred by limitation. 5. I have considered the submissions made by the learned counsel for the appellant and also perused the record. 6. It is not disputed by the appellant that the aforesaid amount of Rs. 50,000/- was paid to him by the plaintiff-respondents. It is also not disputed that suit for specific performance of contract of sale was filed within the period of limitation prescribed for the same. Therefore, the court below was right in holding that the suit was filed within the limitation prescribed for the same. The submission made by the learned counsel for the appellant to the contrary, therefore, cannot be accepted. However, it is well settled in law that in a suit for specific performance for contract of sale, the court if comes to the conclusion that earnest money or sale consideration was actually paid to the defendant and for some reason or other suit cannot be dismissed for specific performance of contract of sale. The court has got the jurisdiction to decree the suit for recovery of sale consideration or earnest money. The submission made by the learned counsel for the appellant to the contrary, therefore, cannot be accepted. 7. The present appeal has got no force. It is, therefore, dismissed under Order XLI, Rule 11, C.P.C. Appeal dismissed.;