- (1.) POONAM Srivastava, J. This second appeal has come up for final hearing alongwith Writ Petition No. 32294 of 1990.
(2.) THE writ petition was filed chal lenging the orders dated 20-4-1989 and 17-5-1990 in Original Suit No. 1081 of 1986, Shafiuddin v. Mughisuddin & Anr. , deciding issue Nos. 4 and 5. THEse two issues were framed and decided as a preliminary issue. Issue No. 4 was regarding Section 10 C. RC. and issue No. 5 was on the question of jurisdic tion. Learned 5th Additional Civil Judge, Meerut decided issue No. 5 holding that the jurisdiction to decide the suit is with the Court at Hapur, District Ghaziabal THE finding0 arrived at by the Additional Civil Judge 5th, that Meerut Courts had no jurisdiction was on the basis that the disputed property was situated at Hapur. THE disputed agreement to sale was also executed before the Sub Registrar, Hapur and, therefore, after the new district was carved out, Meerut Court had no jurisdiction to hear and decide the Meerut. THE Court at Meerut declined to record its finding on issue No. 4 vide order dated 20-4-1989. THEse orders were challenged by filing Misc. Appeal No. 162 of 1989 in the Court of IIIrd Additional District Judge, Meerut. Misc. Appeal was also dis missed vide judgment dated 17-5-1990. THE aforesaid two orders are impugned in the writ petition which is being decided alongwith second appeal. Subsequently the plaintiff-respondent instituted O. S. No. 172 of 1988, Jagdish Singh & Anr. v. Shafiuddin & Anr. at Ghaziabad. THE suit was decreed on 6-12-1995 THE judgment and decree was challenged in Civil Appeal No. 15 of 1996 which was dismissed on 18-11-1996 by the IIIrd Additional District Judge, Ghaziabad. Both the judgments are challenged in the instant second appeal. It is evident that the writ petition is against a decision on the preliminary issue in the suit filed by the appellant at Meerut. The Court has already recorded its finding on merits and declined to exercise jurisdiction. This funding was confirmed in appeal, I come to a conclusion that the writ peti tion filed by the petitioner-appellant himself'has been rendered infructuous. I do not think now a decision in the writ petition is point to make any material dif ference. No doubt the operation of the orders impugned in the writ petition deciding the jurisdiction was stayed but since the proceeding in respect of the subsequent suit at Ghaziabad was not stayed, the suit has been decided finally after the appellant filed his written state ment and contested the suit. The dis pute regarding power of attorney and the document executed on the basis of the said power of attorney stands decided in the suit instituted at Ghaziabad at the instance of the respondent and confirmed in appeal. The two Courts at Meerut have dis missed the suit and the first appeal. As suming the decision in the writ petition is in favour of the petitioner, it is of no consequence. It is a fait accompli. How ever I have also examined the im pugned order in the writ petition. The Courts below have decided the prelimi nary issue and there is no error apparent on the face of record. The property is situated at Ghaziabad and the registration was also done at the relevant time when Hapur was a part of-Meerut. After the new district came in existence, the Courts have correctly declined to' exercise jurisdiction, ac cordingly, I do not find any merit and the writ petition No 32294. of 1990 is dis missed, Now I proceed to decide the second appeal instituted by the plaintiff-respondent.
(3.) THE Original Suit No. 172 of 1988 was for specific performance of the contract. An agreement to sale was executed on 9-9-f986. THE case of the plaintiff is that the defendant No. 1 is the owner of the disputed property. He alongwith one Majharuddin executed a power of attorney on 22-6-1983. THE registration was done in the office of Sub-Registrar, Meerut. THE defendant No. 2 was given the authority to enter into the transaction in respect, of the land situated in Delhi, Ghaziabad, Mawana and Meerut THE agreement to sale was entered into on the oasis of said power of attorney in respect of the land shown at the foot of plaint for an amount of Rs. 2, 20, 000/-, Rs. 1, 90, 000/- was paid as earnest money in the office of Sub-Registrar, Hapur at the time of execution of agreement to sale. It was agreed upon between the parties that the sale-deed will be executed on the basis of the aforesaid agreement on or before 31-12-1987. THE defendants were required to the obtain certificate from the income Tax Department before the execution of the sale-deed. THE defendants, despite request by the plaintiff failed to get the requisite certifi cate from the Income Tax Department and execute the sale-deed. With a view to usurp the earnest money, an Original Suit No. 1081 of 1986 was instituted in the Court of Civil Judge. Mpr, 'jt which the Courts dismissed on a preliminary issue holding that the Meerut Court had no jurisdiction. A notice was sent to the defendants which was replied by them denying the power of attorney and the subsequent agreement to sale. THE suit was instituted by the contesting plain tiff- respondent for specific perfor mance. A number of issues were framed by the trial Court. THE suit was decreed on 6-12-1995. THE appellant preferred a regular first appeal in the Court of 3rd Additional District Judge Ghaziabad. THE judgment and decree of the trial Court was confirmed and the appeal was dismissed vide judgment dated 18-11-1996. Both the judgments are under challenge in this second ap peal. This second appeal is admitted on the following questions of law: (1) Whether the suit in question was li able to be stayed under Section 10 C. P. C. on the ground that the question of the validity of Mukhtarnama was pending decision of the High Court in a Writ Petition? (2) Whether a copy of the Mukhtarnama could have been acted upon in the absence of production of original or in the absence of proper procedure being adopted for putting in secondary evidence ? (3) Whether the relief was barred for lack of proof on the question or payment by the plaintiffs to defendant No. 2 in view of the two contradictory statements regarding pay ment? The first question raised is regarding stay of the proceedings in the suit during the pendency of the writ peti tion No. 32294 of 19so and applicability of Section 10 C. P. C. it has already been held above that the proceedings in this Court in the writ petition was against an order deciding the question, whether the Courts at Meerut or at Ghaziabad has appropriate jurisdiction to decide the matter. The suit at the instance of the appellant and the first appeal was dismissed on a preliminary issue. The proceedings in the present suit in stituted by the plaintiff-respondent con tinued at Ghaziabad Since only opera tion of the order was stayed, the pen dency of the writ petition is of no conse quence. The question in issue was the validity of power of attorney and the document executed on the basis of power of attorney. These substantial is sues were not decided Meerut Court in Original Suit No. 1081. of 1986. Once the proceeding in the sun was instituted by the respondent in the competent Court and the Court of Ghaziabad was con tinuing in Original Suit No. I72 of 1988 and the appellant all along contested the matter, filed his written statement and lead evidence, the question of applicability of Section 10 C. P. C. could not be raised. It is also to be noted that since Ghaziabad was a part of Meerut District at the time when the disputed document was executed but sub sequently when the district was bifur cated, the jurisdiction fell within the limits of Ghaziabad, no illegality what soever or to say irregularity has been committed if the suit has been decided by the Courts at Ghaziabad. In case the appellant wanted to pursue his plaint/suit then he should have preferred his suit at Ghaziabad. The ap pellant, on the contrary tried to delay the proceedings on the pretext of pen dency of the writ petition. Admittedly the property in question is situated at Hapur and the agreement was registered before-the Sub-Registrar, Hapur, it cannot be said that Courts at Ghaziabad should have stayed the proceedings specially when the relief claimed in the two suits were different. The appellant instituted the suit for can cellation of the agreement to sell and power of attorney whereas plaintiff-respondent claimed the relief of specific performance. The validity of power of at torney has been decided in the present suit after a hot contest by the appellant as well. Evidence was led by both the parties. In the circumstances, I come to a conclusion that the first substantial question of law on which this second appeal was admitted, is not worth con sideration. The two judgments on 'his question cannot be set aside.;