- (1.) By this first appeal, the defendant-appellant has challenged the judgment and decree dated 12th April, 2012 passed by the Additional District Judge No.3, Jaipur Metropolitan in Civil Suit No.102/2008, whereby the civil suit filed by the plaintiffrespondent for specific performance has been decreed.
(2.) Briefly, stated the relevant facts of the suit filed by the plaintiff respondent are that on 7th November, 2006 the plaintiff respondent and the defendant appellant entered into an oral agreement for sale of the disputed plot no.93, Ladli Path, Chomu House, Jaipur, the details of which have been given in para no.1 of the plaint, for a consideration of Rs.25 lacs and a cheque of Rs.21,000/- was given for the same. Subsequently, the said oral agreement was reduced in writing on 16th November, 2006 and further two cheques of Rs.15,000/- each were given to the defendant. Thus total amount Rs.51,000/- was given to the defendant which has been encashed by him. The plaintiff was ready and willing to perform her part of the agreement and a notice in the 'Rajasthan Patrika' dated 6th January, 2007 was published on her behalf regarding agreement to purchase of the disputed property. Thereafter, again a notice for writing a sale deed was given through her counsel on 7th January, 2007. The other facts which have been mentioned in the plaint are that the husband of the plaintiff is the tenant in the said premises and the said notice was returned by the defendant with malafide intention. However, on 9th January, 2008 when the defendant threatened the plaintiff to dispossess her from the premises in question then she filed a civil suit for permanent injunction in the Court of Additional Civil Judge No.2, Jaipur City along with an application for grant of temporary injunction. The said application for temporary injunction was dismissed on 6th August, 2008 on the ground that the alternative remedy of filing civil suit for specific performance is available with the plaintiff. Thereafter, the plaintiff filed the present civil suit on 7th August, 2008 for specific performance of the sale agreement dated 16th November,2006 and for permanent injunction that the defendant shall not alienate the property to any other person.
(3.) The defendant filed written statement and raised some preliminary objections and also filed reply on merits that the plaintiff and her husband are giving the rent in installments and taking advantage of defendant's being illiterate, with malafide intention got signed blank papers on the pretext of preparing the the receipt of rent which was signed by him under goodfaith. Thus, the said agreement has been forged with dishonest intention to grab the property. Another objection was that since the agreement was not a registered one, the same is having no value in law and the plaintiff is not entitled for a decree of specific performance. The defendant has also raised objection that the suit is barred under Order 2 Rule 2 CPC as earlier the plaintiff had filed a civil suit for permanent injunction on the same cause of action wherein she could have prayed for a decree for specific performance therefore, the present suit for specific performance is barred and as such, the plaintiff is not entitled for a decree for specific performance. On merits, it has been replied that no such oral agreement for sale of the property in question for a consideration of Rs.25 Lacs was entered into between the parties on 7th November, 2006 thereafter also no agreement was reduced in writing and no consideration was taken from the plaintiff as sale consideration. Signature of the defendant has been obtained in a deceitful manner on blank stamp papers which has been given a shape of an agreement with a dishonest intention. The defendant has specifically denied receipt of Rs.51,000/- as sale consideration. It is then stated that the said amount is of arrears of rent. In the written statement it has also been submitted that the said disputed premises are having area of 242.83 sq. yards. of which the present market value is rupees One Crore. Therefore, sale of the property for a consideration of Rs. 25 Lacs is imaginary and false. No time limit has been mentioned in the said agreement. ;