- (1.) Instant regular second appeal has been preferred by the appellant-defendant against the judgment and decree dated 29.04.2009 passed by learned Additional Civil Judge (Senior Division), Fazilka whereby suit filed by the respondent/plaintiff for possession by way of specific performance has been decreed, as well as, against the judgment and decree dated 17.10.2011 passed by learned Additional District Judge, Ferozepur whereby appeal preferred by the appellant-defendant has been dismissed.
(2.) For convenience sake, reference to parties is being made as per their status in the suit. The detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that plaintiff filed a suit for possession by way of specific performance of contract dated 17.02.2007. It was pleaded that defendant entered into an agreement to sell the house in dispute, as detailed in the headnote of the plaint for a total sale consideration of Rs. 5,40,000/- to the plaintiff. An amount of Rs. 1,40,000/- was paid by the plaintiff to the defendant as earnest money and balance sale consideration was to be paid at the time of execution and registration of sale deed, which was agreed to be executed on 15.06.2007. It was further pleaded that plaintiff was and has been always ready and willing to perform his part of the contract. He remained present in the office of Sub Registrar, Fazilka on 15.06.2007 along with balance sale consideration and other expenses for performing his part of the contract but the defendant did not execute the sale deed on the said date. The plaintiff got his presence marked in the office of Sub Registrar on 15.06.2007. Thereafter, the defendant approached the plaintiff through the witnesses for extension of time fixed for execution of sale deed but the defendant refused to sign the endorsement to that effect made on the back side of the agreement. The plaintiff sent notice dated 27.08.2007 calling upon the defendant to execute the sale deed on 06.09.2007. The plaintiff remained present in the office of Sub Registrar, Fazilka on 06.09.2007, but the defendant did not turn up and the plaintiff again got his presence marked in the office. Thus, the defendant had willfully refused to perform her part of the contract.
(3.) Upon notice, defendant appeared and filed written statement taking preliminary objections that the suit is not maintainable in the present form because the plaintiff was not ready and willing to perform his part of the agreement to sell and the earnest money paid by the plaintiff stood forfeited due to non-performance of the contract and as per reply to notice dated 07.09.2007 sent by the defendant. On 15.06.2007, the defendant reached in the Court and requested the plaintiff to make the payment of stamp papers as per agreement dated 17.02.2007, but he did not make the payment. It was pleaded that the defendant kept on waiting for the plaintiff to get the sale deed executed in his favour but the plaintiff neither made the payment of stamps nor asked the defendant for extension of time. The defendant was ready and willing to perform her part of the contract on the said date. Plaintiff filed replication denying the averments in the written statement and reiterating the averments in the plaint.;