N.K. Mody, J. - (1.) BEING aggrieved by the judgment and decree dated 24 -2 -2004, passed by XVIth Additional District Judge, Indore, in Civil Suit No. 12 -A/2002, whereby the suit filed by the respondent for specific performance was decreed and the respondent was directed to pay a sum of Rs. 71,450/ - to the appellant and the appellant was directed to execute the sale deed in favour of respondent, the present appeal has been filed. Short facts of the case are that the respondent, who is wife of Basant Kumar Neema, filed a suit for specific performance on 8 -3 -1989, alleging that the appellant is the owner of a flat bearing house No. 1166, situated at Khatiwala Tank, Indore, (which shall be referred hereinafter as suit property). In the suit it was alleged that appellant entered into an agreement to sale the suit property on 12 -3 -1986 and accepted a sum of Rs. 15,000/ -, as earnest money. It was alleged that the respondent was in occupation of the suit property prior to the execution of the agreement. It was further alleged that apart from a sum of Rs. 15,000/ -, which was paid as an earnest money respondent also paid a sum of Rs. 5,000/ -, as an advance and another Rs. 5,000/ - as the appellant was in need. It was alleged that thus the total sum which was paid by respondent to the appellant was Rs. 25,000/ - and the balance amount, which was payable was Rs. 43,000/ -. Further case of respondent was that respondent was ready and willing to perform her part of agreement, but the appellant failed to execute the sale deed in favour of respondent after accepting the balance amount. It was alleged that out of the balance amount appellant was asking to pay part of the sale price un -officially for which the respondent was not prepared.
(2.) IT was further alleged in the suit that appellant filed a suit for eviction against Basant Kumar Neema, the husband of respondent in the Court of Civil Judge Class -I, Indore, which is pending. It was alleged that the appellant be directed to execute the sale deed in favour of respondent. During pendency of the suit the pleadings were amended by the respondent and it was alleged that the suit property belonged to M.P. Housing Board which was purchased by the appellant under Hire Purchase Agreement and after making payment of instalments Housing Board has executed the documents in favour of appellant. Hence, the appellant is eligible to execute the sale deed of the suit property in favour of respondent. Suit was further amended by the respondent and it was alleged that in an execution of a decree passed by VIIth Civil Judge Class -I, Indore, the appellant has taken possession of the suit property from the husband of respondent, hence decree of possession be also passed in favour of respondent. In the suit it was also prayed that in alternative appellant be directed to pay the interest @ 18% p.a. on the sum of Rs. 68,000/ -, which was the agreed amount of sale of suit property w.e.f. 12 -3 -1986, i.e. the date of agreement. The written statement was filed by the appellant, wherein the allegations made in the plaint were denied, it was alleged that Basant Kumar Neema, husband of respondent was tenant in the suit accommodation w.e.f. 1 -1 -1982 @ Rs. 450/ - per month for which rent note was executed in favour of appellant. It was alleged that since the rent was not paid by the husband of respondent, regularly and the appellant was in need of suit accommodation, therefore, after issuance of notice for eviction dated 15 -7 -1986, a suit for eviction was filed by the appellant. It was alleged that before filing suit for specific performance a notice was given by the respondent, wherein it was alleged that agreement to sale of the suit property was executed by the appellant in favour of respondent, hence the appellant should execute the sale deed in favour of respondent. It was alleged that after receipt of the notice appellant asked the respondent to get the original agreement inspected to the appellant, but in spite of that respondent did not bother to get the agreement inspected to the appellant. It was alleged that the suit property was purchased by the appellant from M.P. Housing Board under the Hire Purchase Scheme according to which the appellant was required to pay the instalments to the Housing Board for a period of 15 years. It was also submitted that as per the clause of agreement of Hire Purchase Agreement, appellant was restrained to transfer the suit property. It was alleged that as per the agreement instalments were require to be paid by respondent to the Housing Board but respondent failed in payment of instalments. It was also denied that a sum of Rs. 10,000/ - was paid to appellant in two instalments of Rs. 5,000/ - each. It was prayed in the written statement that the suit be dismissed. On the basis of pleadings of the parties, learned trial Court framed the issues, recorded the evidence and decreed the suit, against which the present appeal has been filed.
(3.) MR . B.I. Mehta, learned counsel for the appellant submits that the learned Court below committed error in decreeing the suit filed by respondent. It is submitted that since the suit property was transferred by the appellant vide registered sale deed dated 12 -10 -2004, therefore, an application was filed by the purchaser to implead him as party, but the same was opposed by the respondent. It was alleged that since the appellant was having no right, title or interest in the suit property, therefore the application to implead the purchaser as party deserves to be allowed. For this contention reliance was placed on a decision of the Hon'ble Apex Court in the matter of Amit Kumar Shaw vs. Farida Khatoon, reported in : (2005) 11 SCC 403, wherein a question of joinder of transferee pendente lite in title suit was taken into consideration by the Hon'ble Court and it was held that the transferee can be joined both under Order XXII Rule 10 or under Order 1, Rule 10, and the transferee is bound by the final decree under section 52 of Transfer of Property Act, 1882. Learned counsel further submits that the learned trial Court committed error in decreeing the suit. It is submitted that the respondent alleged in the plaint that respondent paid a sum of Rs. 10,000/ - in two instalments to the appellant in addition to the earnest money of Rs. 15,000/ -, but failed to prove the same. It is submitted that since the appellant did not come with clean hands, therefore, only on this ground suit deserves to be dismissed. It was further submitted that the agreement to sale the suit property was dated 12 -3 -1986. The notice to execute the sale deed was issued by respondent on 8 -4 -1986, which was not complied by the appellant and on the contrary a suit was filed by the appellant against the husband of respondent for eviction and the possession was also taken. In the circumstances there was no justification on the part of respondent in sitting idle and not filing the suit till 10 -3 -1989. It is submitted that no doubt the suit is within three years from the date of agreement, but in the facts and circumstances of the case there was no justification on the part of respondent in not filing the suit for a period of three long years. Learned counsel further submits that respondent was not ready and willing at any point of time to get the sale deed executed. It is submitted that respondent failed to demonstrate that the respondent was possessing the requisite amount at all the relevant time to get the sale deed executed. It is submitted that respondent was further required to prove that respondent No. 1 was having funds for stamp duty and registration fee, but respondent failed to prove the same. It is further submitted that the suit also deserves to be dismissed on the ground that respondent failed to comply with the terms and conditions of the agreement. It is submitted that one of the condition of the agreement was that the respondent shall pay the instalments, which were being payable by the appellant the M.P. Housing Board, as per the terms and conditions of the agreement. It is submitted that before filing of the suit i.e. during the period of three years from the date of agreement the respondent did not deposit a single instalment under the Hire Purchase Agreement, which was payable by the appellant. Mr. Saxena, learned counsel for respondent submits that the suit has rightly been decreed by the respondent. It was also submitted that the relief of specific performance is a discretionary relief and discretion was exercised in favour of respondent, which cannot be set aside in appeal. Mr. Saxena further submits that so far as the alleged delay is concerned upto the period of limitation does not disentitle the respondent to get the decree of specific performance. For this contention reliance was placed on a decision of Division Bench of this Court in the matter of Mahesh Chandra Gupta vs. A.K. Mishra, reported in : 1999 (2) JLJ 386, wherein a Division Bench of this Court held that delay upto the period of limitation does not disentitle plaintiff to get decree. Learned counsel further submits that since the suit property was sold by the appellant during the pendency of the suit, therefore, there was no necessity to implead the purchaser as party, as section 52 of Transfer of Property Act, takes care of the situation. After hearing of the parties, this Court is of the view that the learned Court below committed error in decreeing the suit for the following reasons : Firstly, the alleged agreement was dated 12 -3 -1986 and the show cause notice was issued by the respondent No. 1 on 8 -4 -1986. Since no sale deed was executed by the appellant in compliance of the notice and on the contrary the suit was filed for eviction against the husband of respondent and in the said suit the decree of eviction was obtained and ultimately possession was also obtained, therefore, there was no justification on the part of respondent to wait upto the period of expiry of limitation. Undoubtedly, the suit was within time, as it was within limitation prescribed under Limitation Act, but filing of the suit after a considerable period demonstrate that respondent was not ready and willing to get the sale deed executed. Reliance is placed on a decision of Hon'ble Apex Court in the matter of K.S. Vidhanandan vs. Vairavan, reported in : AIR 1997 SC 1751 wherein in a suit filed within limitation prescribed by the law Hon'ble Apex Court held that inaction on part of 2 1/2 years in violation of terms of agreement cannot be ignored. It was further held by the Apex Court that the delay coupled with substantial rise in prices of properties, it will be inequitable to give relief of specific performance. Secondly, since the respondent alleged in the plaint that respondent has paid a sum of Rs. 10,000/ - to the appellant in two instalments in addition to the earnest money of Rs. 15,000/ - and failed to prove the same, therefore, it can be said that respondent did not come with clean hands. Reliance is placed on a decision of Apex Court in the matter of Ramkumar Agrawal vs. Thawardas, reported in : 1999(7) SCC 303, wherein the Hon'ble Apex Court in a suit for specific performance a plea was taken by the plaintiff that a sum of Rs. 2,000/ - was paid and the findings arrived that no amount was paid, held that person who falsely claims to have paid a sum of money and attempts to prove the plea at trial stage cannot be said to have been ever ready and willing to pay the sum due under the contract in question, in the present case the agreement exhibit P -1, is a handwritten document on plane paper. At the initial stage when the notice for specific performance was issued by the respondent on 8 -4 -1986, which is exhibit P -2 and in reply to which vide exhibit D -1, the appellant asked to supply the copy of alleged agreement. Appellant preferred not to supply the copy of the agreement and waited for three long years from 8 -4 -1986 to 8 -3 -1989, for filing the suit for specific performance. A prudent person who has genuinely entered into an agreement and is in possession of the suit property through her husband as tenant and is ready and willing to pay the balance amount will not take risk of non -supply of the copy of the agreement specially when it is handwritten and wait for filing the suit till last day of limitation at the cost of loosing the possession in a hope of a decree from the Court for possession. Thirdly, as per the agreement Exhibit P -1, the respondent was required to pay the instalments which was payable to housing board. There is no averment in the plaint that the respondent paid the instalments to the housing board or why the balance instalments were not paid by the respondent.;