(1.) THIS is defendants second appeal Under Section 100 of the Code of Civil Procedure against the judgment of affirmance. Plaintiff filed suit for specific performance of contract. 9th Civil Judge, Class II, Jabalpur by his judgment and decree dated 19-1-1989 passed in C. S. No. 156-A/86 decreed the suit. Defendant aggrieved by the same preferred Civil Appeal No. 26-A/91 and the 6th Addl. District Judge, Jabalpur by judgment and decree dated 11-5-1991 dismissed the appeal. Aggrieved by the same defendant has preferred this appeal Under Section 100 of the Code of Civil Procedure.

(2.) ADMITTED facts of the case are that the defendant on 25-10-1997 executed an agreement to sale of 2400 sq. ft. of land of plot No. 30, village Laxmipur in the District of Jabalpur after receipt of the advance money. According to the agreement, the defendant after receipt of the full consideration money was to execute the sale deed in favour of the plaintiff. On failure of the defendant to execute the sale deed, plaintiff gave notice and in spite of the same, the defendant did not execute the sale deed and thereafter plaintiff filed the suit for specific performance of contract.

(3.) ACCORDING to the plaintiff on 25-10-1979 defendant executed the agreement to sale in presence of the witness R. N. Mishra and the consideration money agreed was Rs. 7,200/- and on the date of agreement a sum of Rs. 2,200/- was given in advance and the rest of the consideration money was agreed to be paid at the time of registration of the documents. According to the plaintiff, in order to save property and income tax plaintiff asked the defendant to indicate a sum of Rs. 500/- as advance in place of Rs. 2,200/- and Rs. 5,5oo/-as consideration money in place of Rs. 7,200/- in the agreement. The defendant did not object to the same and accordingly agreement to sale (Ex. P. 1) was executed, showing the consideration money to be Rs. 5,500/- and advance of Rs. 500/ -. According to the plaintiff, defendant agreed that after taking permission of the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 (here in after referred to as the), he shall inform the plaintiff and within one month thereafter, defendant shall execute the sale deed. According to the plaintiff, he had consideration money right from the date when the agreement to sale was executed and he was ready and willing to perform his part of the contract but defendant never informed about the permission obtained from the authority under the and in spite of several reminders, no step was taken for execution of the sale deed. Plaintiff accordingly gave notice through lawyer for the execution of the sale deed and in answer thereto the defendant sent an incorrect reply that plot in question is the property of the joint Hindu Family and in view of the refusal of the co-parcenars to sale the property, the agreement to sale has become inoperative. However, according to the plaintiff, the defendant, in view of the fact that the price of the land has increased is declining to execute the sale deed. On the aforesaid premises, the plaintiff prayed for decree for specific performance of contract for sale of the suit land.

(4.) DEFENDANT in the written statement denied the allegation of the plaintiff that the consideration money agreed for sale of the plot was Rs. 7,200/- and a sum of Rs. 2,200/- was paid in advance. According to him the consideration money fixed was Rs. 5,500/-and he has received a sum of Rs. 500/- from the defendant as advance. His further case was that the agreement to sale was executed on the pressure of his friend Shri Rudhera Lal Mishra in the name of the plaintiff as Benami and the plaintiff was unknown to him and it was agreed that the aforesaid R. L. Mishra shall obtain permission for sale of the land from other coparceners. According to the defendant the aforesaid R. L. Mishra had agreed that in case of failure to obtain permission from other members of the defendants family, the agreement to sale shall stand cancelled. According to the defendant, the aforesaid R. L. Mishra did not obtain permission from other co-parcenars and in fact have refused to sale land and accordingly the agreement to sale has become inoperative. His further case was that the aforesaid R. L. Mishra was required to take permission from the competent authority under the and as he has not obtained such permission, agreement to sale has further become inoperative on this ground also. Defendant has admitted in the written statement that although he has purchased the disputed plot in his name from one Shri K. C. Sharma but in fact the property was purchased by the joint Hindu family in his name as its karta. Further stand of the defendant is that in the judgment and decree dated 5-7-1984 passed by the Civil Judge, Class II in C. S. No. 36-A/84 and affirmed in appeal, the plot in dispute has been held to be joint Hindu family property and according the agreement entered by the defendant alone is inoperative. In the aforesaid premises, defendant prayed for dismissal of the suit.

(5.) PLAINTIFF in support of his case examined himself as a witness. No witness was examined on behalf of the defendant. In fact defendant did not examine any witness, in spite of several opportunity. On the pleadings of the parties the trial Court framed various issues including the issues as to whether there was an agreement to sale entered into between the parties; plaintiff has given Rs. 2,200/- as advance as also whether the property belongs to the Joint Hindu Family of the defendant.

(6.) THE trial Court on analysis of the evidence found that there was an agreement to sale between the parties, plaintiff has advanced a sum of Rs. 2,200/- and the property does not belong to the Joint Hindu Family as claimed by the defendant. It further held that the plaintiff was always ready and willing to perform his part of the contract and accordingly decreed the plaintiff suit. Before the lower appellate Court defendant urged that he was not given opportunity to lead evidence during the trial but the said submission was negatived by the lower appellate Court. The lower Court affirmed the finding of the trial Court that the disputed land does not belong to the Joint Family property of the defendant and accordingly dismissed the appeal.

(7.) BY order dated 21-5-1995 the appeal was admitted on the following substantial question of law:

(1) Whether the impugned decree for specific performance of contract for sale of the joint family property could be passed against the appellant in view of the judgment and decree in Civil Suit No. 36-A/84 dated 5-7-1984 by the Court of Civil Judge, Class I, and confirmed in Civil Appeal No. 25-A/89 (2) Whether the impugned decree could be passed lawfully by the Courts below in view of Section 27 of the Urban Land Ceiling Act, 1976, and specific condition of agreement that sale deed shall be executed after obtaining due permission from the competent authority under Urban Land Ceiling Act, 1976

(8.) SHRI A. K. Jain appearing on behalf of the respondent raises a preliminary objection regarding the maintainability of the appeal. He submits that by order dated 10-2-1992, the appeal was dismissed on merits at the time of hearing under Order 41, Rule 11, Civil Procedure Code although nobody appeared for the appellant and once the appeal was dismissed the same cannot be heard on merits. It is relevant here to state that the appellant filed MCC No. 433/92, what he termed for restoration of this second appeal. By order dated 25-1-1993 the said MCC N. 433/92 was dismissed in the absence of the counsel for the appellant. Order dated 25-1-1993 reads as follows:none for the applicant. The main purpose of this application is to get the order dated 10-2-1992 passed in S. A. No. 416/91, set aside. Though the said order was passed on merits of the appeal, it was passed in the absence of the learned counsel for the appellant/applicant. The learned counsel for the applicant perhaps could not reach this Court in time. Not attending the Court in time appears to be the habit of the learned counsel and for that reason, he is absent even today. This case had been passed over once and now that it is the last case in the motion and hence, it is not possible to adjourn the hearing. Absence of learned counsel for the applicant indicates that he is not interested in the application. It is accordingly dismissed. Thereafter, appellant filed MCC No. 378/92 for restoration of MCC No. 433/92. By order dated 10-1-1994 MCC No. 433/92 was listed before this Court on 9-11-1994 and on the said date this Court passed the following order: 9-11-1994 Heard Shri Ravindra Shrivastava, counsel for the applicant, on the question of restoration of second Appeal No. 416/91. The appeal was decided on merits in absence of the party on 10-2-1992. The appeal could not have been heard on merits in absence of the appellant. Obviously the order passed requires reconsideration. The appeal is, therefore, restored to its original number and be listed for hearing on motion on 11-11-1994. Thereafter, the second appeal came up for consideration on 25-1-1995 and as stated earlier the appeal was admitted on that date on the substantial questions of law indicated above.

(9.) SHRI Jain submits that once the appeal was dismissed on merits, although in the absence of the counsel for the appellant, remedy open to the appellant was for review of the said order and the appellant cannot over come the said order by getting the second appeal restored. I am not inclined to go into the merits of the submission of the learned counsel for the respondent as by order dated 9-11-1994 passed in MCC No. 433/92 this Court restored the second appeal and respondent having not challenged the said order, cannot be permitted to assail the same, after the appeal has been admitted on substantial questions of law by order dated 25-1-1995. Accordingly, 1 overrule the preliminary objection raised by the respondent.

(10.) IT is relevant here to state that at the time of the hearing of the appeal, the appellant has filed an application under proviso to Section 100 (5) of the Code of Civil Procedure for framing additional substantial questions of law and hearing the appeal on such questions also. Questions so formulated pertain to the closing of the case of the appellant under Order 7, Rule 2 of the Code of Civil Procedure as also the perversity in finding recorded by the Courts below regarding the readiness and willingness of the plaintiff to perform his part of the contract. It is relevant here to state that the lower appellate Court recorded findings that the defendant was given sufficient opportunity to lead evidence and the plaintiff was always ready and willing to perform his part of the contract. Question sought to be raised under the proviso to Section 100 (5) of the Code of Civil Procedure was taken in the memorandum of appeal but this Court while admitting the appeal for hearing did not admit the appeal on the aforesaid question of law. For twin reasons i. e. the lower appellate Court has recorded finding, which cannot be termed as perverse, as also on the ground that those questions, although, were raised in the memorandum of appeal but the appeal was not admitted for hearing on the aforesaid questions of law, I am not inclined to hear the appeal on the aforesaid questions raised by the appellant. I negative this prayer of the appellant.

(11.) NOW I advert to consider the substantial questions of law on which the appeal was admitted. Shri Ravish Agarwal appearing on behalf of the appellant submits that the judgment and decree dated 5-7-1984 and affirmed in C. A. No. 25/a/89, clearly show that the suit property is a joint Family property and in that view of the matter, the defendant alone could not have executed the agreement to sale and accordingly plaintiff is not entitled for decree for specific performance of contract on the basis of the said agreement. I am afraid the submission is devoid of any substance. It is relevant here to state that the suit which has given rise to the present appeal was filed on 10-7-1982 where as Civil Suit No. 36-A/84 was filed later on. In the reply (Ex. P. 5) given by the defendant to the notice of the plaintiff, he has not whispered a word about the same. The award which has been made the rule of the Court in C. S. No. 36-A/84 and in which the defendant is a party has been filed after the institution of the present suit filed by the plaintiff. In C. S. No. 36-A/84 the plaintiff was not impleaded as a party. Accordingly the judgment and decree passed in the said suit is not binding on the plaintiff. In my opinion, the Courts below were right in holding that the judgment and decree dated 5-7-1984 passed in C. S. No. 36-A/84 and affirmed in C. S. No. 25-A/89, are not binding on the plaintiff. The first substantial question of law formulated is thus, answered in favour of the plaintiff and against the defendant.

(12.) SHRI Agarwal then submits that the impugned decree is in the teeth of Section 27 of the Urban Land (Ceiling and Regulation) Act and according to his submission a decree, of a nature, which results into violating any of the provisions of the statute cannot be passed. He submits that in the plaint, plaintiff made a prayer for a direction to the defendant to obtain permission from the ceiling authority and the Courts below having not said anything about the same, same shall be construed to mean that the said relief was declined and in that view of the matter the Courts below committed an error of law in passing the decree for specific performance of contract.

(13.) SHRI Jain however appearing on behalf of the respondent submits that permission from the authority under the Urban Land (Ceiling and Regulation) Act, is not a condition precedent for grant of decree for specific performance of contract. In support of his submission he has placed reliance on a judgment of the Delhi High Court in the case of Ajit Prashad Jain v. N. K. Widhani and Ors. , AIR 1990 Delhi 42 and my attention has been drawn to the following paragraph of the said judgment which reads as under: "the permission from Land and Development office is not a condition precedent for grant of decree for specific performance. In Mrs. Chandnee Widya Vati Madden v. Dr. C. L. Katilal, (1964) 2 SCR 495 [LQ/SC/1963/77] , AIR 1964 SC 978 [LQ/SC/1963/77] the Supreme Court confirmed the decision of the Punjab High Court holding that if the chief Commissioner ultimately refused to grant the sanction to the sale the plaintiff may not be able to enforce the decree for specific performance of the contract but that was no bar to the Court passing a decree for that relief. The same is the position in the present case. If after grant of a decree of specific performance of the contract the Land and Development office refuses to grant permission for sale the decree holder may not be in a position to enforce the decree but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract. I may also notice that Section 27 (1) of the Urban Land (Ceiling and Regulation) Act, in so far as it imposes a restriction on transfer of any Urban or urbanisable land with a building or a portion of such building, which is within the ceiling area, was declared invalid but supreme Court in Manaro Saheb Shri Bhim Singhji v. Union of India, AIR 1981 SC 234 [LQ/SC/1980/462] , and as such it may not be necessary to obtain permission under the said Act but that is not a matter with which I am concerned at this stage. Assuming such a permission is required that would be a matter for consideration after passing of the decree and at the stage of execution. No fault can be found out with the plaintiffs anxiousness to take possession in terms of the agreement on payment of the amounts stipulated therein. "

The High Court has rendered the aforesaid judgment, following the judgment of the Apex Court in the case of Mrs. Chandnee Widya Vati Madden v. Dr. C. L. Katilal and Ors. (supra). The submission made by Shri Agarwal is clearly answered by the aforesaid decision of the Delhi High Court with which I respectfully agree. Accordingly, I do not find any substance in this submission of the learned counsel for the appellant also. Second substantial question of law formulated is thus answered, against the defendant.

(14.) HAVING negatived both the submission made on behalf of the appellant, I do not find any merit in the appeal and it is dismissed with cost. Counsels fee Rs. 1,000/