IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR
FIRST APPEAL NO. 791 OF 2012.
APPELLANT/ : PRATAP SINGH
VERSUS
RESPONDENTS/ : MR. RAM NARESH
PATEL & ANOR.
The above named appellant/applicant/petitioner
has affixed herewith a Court Fee Stamp worth Rs. 35/- + Rs. /- issuance of notice to the following
respondents/non-applicants.
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S.
No.
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Name &
address of the persons
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Process
fee paid
On
Merit on stay
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1.
2.
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MR. RAM NARESH PATEL, aged
about 47 years, S/o Late Mr. Nand Kishore Patel, R/o Plot No. 23, (Slum
Area), Vallabh Nagar, Village – Khajuri Kalan, Tahsil Huzur, Bhopal District
–
THE STATE OF
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Rs.15/-+Rs. /-
Rs.15/-+Rs. /-
Rs.5/-
[Extra]
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Date
of order
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Claim valued
at
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Particulars
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22.08.2012
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FA
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On
Admission and IA NO. 9185/2012 appli. U/o 41 Rule 5 of CPC Only
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Jabalpur
Counsel for
–Applicant
Date
: /08/2012 Vijay Raghav Singh
MR. RAM NARESH PATEL,
aged about 47 years,
S/o Late Mr. Nand Kishore Patel,
R/o Plot No. 23, (Slum Area),
Vallabh Nagar, Village – Khajuri
Kalan, Tahsil Huzur, Bhopal
District – BHOPAL
THE STATE OF MADHYA PRADESH
Through The Collector, Bhopal
District – BHOPAL
MR. RAM NARESH PATEL,
aged about 47 years,
S/o Late Mr. Nand Kishore Patel,
R/o Plot No. 23, (Slum Area),
Vallabh Nagar, Village – Khajuri
Kalan,
Tahsil Huzur, Bhopal
District – BHOPAL
THE STATE OF MADHYA PRADESH
Through The Collector, Bhopal
District – BHOPAL
The Registrar (Judicial)
High Court of Madhya Pradesh
Principal Seat at Jabalpur
The Registrar (Judicial)
High Court of Madhya Pradesh
Principal Seat at Jabalpur
IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR
FIRST APPEAL NO. 791 OF 2012.
APPELLANT/ : PRATAP SINGH
VERSUS
RESPONDENTS/ : MR. RAM NARESH
PATEL & ANOR.
I
N D E X
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Sno
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Description
of documents
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Annexure
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Pages
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1.
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Index
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1
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2.
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Chronology of events
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2 TO 5
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3.
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Memo of First appeal under Section
96 of the Code of Civil Procedure, 1908
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6 TO 22
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4.
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List
of Documents
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23
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5.
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Certified
Copy of the Judgment and Decree dated 06.07.2012
passed by the Ist Additional Judge to the Court of Ist Additional District
Judge, Mr. Shri Ram Sharma, Bhopal District –
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24 TO 29
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6.
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Application
under Order 41, Rule 5 of the Code of Civil Procedure, 1908 alongwith
affidavit
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30 TO 32
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7.
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Copy
of the registered legal notice dated 27.07.2012 issued by plaintiff
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A-1
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33
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8.
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Vakalatnama
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34 TO 36
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PLACE : JABALPUR
DATE : ADVOCATE
FOR APPELLANT
IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR
FIRST APPEAL NO. 791 OF 2012.
APPELLANT/ : PRATAP SINGH
VERSUS
RESPONDENTS/ : MR. RAM NARESH
PATEL & ANOR.
CHRONOLOGY OF
EVENTS
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S.No
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Date
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Events
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1.
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29.03.2000
Exhibit P-6
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A
registered sale deed was executed by plaintiff in Arvind Kumar Patel S/o Mr Jagdish Kumar
Patel of land bearing Khasra No. 318/3, area
measuring 0.50 acre situated at Village – Khajuri Kalan, Tahsil Huzur, Bhopal
District – BHOPAL (Madhya Pradesh) for a consideration of Rs.99,000/-
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2.
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08.02.2002
Exhibit P-1
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An
agreement of sale was allegedly executed by the defendant No. 1 in favor of
plaintiff for sale of land bearing Khasra No.
318/3, area measuring 0.32 acre situated at Village – Khajuri Kalan, Tahsil
Huzur, Bhopal District – BHOPAL (Madhya Pradesh) for a consideration of
Rs.90,000/- and an earnest money of Rs. 54,000/- was paid to defendant No. 1
by the plaintiff before the execution of agreement.
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3.
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08.02.2002
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On 08.02.2002 a sum of Rs. 17,500/- was made to the defendant
No. 1 by the plaintiff.
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4.
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13.06.2002
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On 13.06.2002 payment of Rs.4,000/- was made to the defendant
No. 1 by the plaintiff.
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5.
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26.09.2002
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On 26.09.2002 a partial payment of Rs. 2,000/- was made to the
defendant No. 1 by the plaintiff.
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6.
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April,
2003
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According to the terms and conditions of the contract in
question the sale deed had to be registered on or before April, 2003 but due
to the malice in the mind of defendant No. 1 he refused make his promise
good.
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7.
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07.07.2003
Exhibit P-2
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The notices were sent to the defendant No. 1 by the plaintiff
whereby calling upon the defendant No. 1 to get the sale deed registered
after taking balance consideration of Rs.12,500/-.
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8.
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Exhibit P-3
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Postal Acknowledgement received by Vimla Thakur.
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9.
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01.07.2004 Exhibit P-4
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Postal receipt
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10.
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Exhibit P-5
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Notice issued under Section 80 CPC
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11.
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Exhibit P-5
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Khasra P-II of the suit Land of the year 2003-2004.
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12.
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25.12.2003
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The plaintiff by showing his bonfide gesture paid the balance
consideration of Rs.12,500/- on 25.12.2003 on promise of defendant No. 1 in
execution of sale deed in the month of January, 2004.
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13.
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12.07.2004
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Respondent No. 1 / plaintiff filed a regular civil suit on
12.07.2004 against the defendant No. 1 for specific performance of contract
under the provisions of Section 10 of Specific Relief Act, 1963 before the
Court below.
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14.
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10.08.2009
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By filing the written statement the defendant No. 1 denied all
the adverse allegation and contention raised against him and submitted that
neither he had executed the alleged agreement of sale dated 08.02.2002 nor
had taken the earnest money of Rs.54,000/- from the plaintiff.
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15.
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06.07.2012
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Judgment and Decree dated 06.07.2012 passed by the Ist Additional
Judge to the Court of Ist Additional District Judge, Mr. Shri Ram Sharma,
Bhopal District –
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16.
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A first appeal under Section 96 of the Code of Civil Procedure,
1908 (No. 5 of 1908) has been preferred by the defendant No. 1 before the
Hon”ble High Court of Madhya Pradesh Principal Seat at Jabalpur (Madhya
Pradesh) against the impugned Judgment and Decree dated 06.07.2012.
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PLACE : JABALPUR
DATE : ADVOCATE
FOR APPELLANT
IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR
FIRST APPEAL NO. 791 OF 2012.
APPELLANT/ : PRATAP SINGH,
aged about 52
Defendant No. 1 years,
S/o Late Mr. Karan Singh Thakur, R/o Village – Khajuri Kalan, Tahsil Huzur,
Bhopal District – BHOPAL (Madhya Pradesh).
VERSUS
RESPONDENTS/ : 1. MR. RAM NARESH PATEL,
Plaintiff aged
about 47 years, S/o Late Mr. Nand Kishore Patel, R/o Plot No. 23, (Slum Area),
Vallabh Nagar, Village – Khajuri Kalan, Tahsil Huzur, Bhopal District – BHOPAL
Defendant No. 2 2. THE
STATE OF MADHYA
PRADESH,
Through The Collector, Bhopal District – BHOPAL
FIRST APPEAL
UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908 (NO. 5 OF 1908.
[Claim in appeal valued at Rs. 90,000/- for specific performance
of contract and the Court fees for a sum of Rs. 10,600/- is being paid herewith
as before the Court below]
Being aggrieved by the Judgment and Decree dated 06.07.2012 passed
by the Ist Additional Judge to the Court of Ist Additional District Judge, Mr.
Shri Ram Sharma, Bhopal District – BHOPAL
MATERIAL FACTS OF THE CASE :
1. Respondent No. 1 / plaintiff filed a regular civil suit on
12.07.2004 against the defendant No. 1 for specific performance of contract under
the provisions of Section 10 of Specific Relief Act, 1963 before the Court
below.
2. The case of plaintiff is that defendant No. 1 who is agriculturist
is owned a land bearing Khasra No. 318/3, area measuring 0.32 acre situated at
Village – Khajuri Kalan, Tahsil Huzur, Bhopal District – BHOPAL (Madhya
Pradesh) [hereinafter referred to as suit land]. The defendant No. 1 entered
into an agreement of sale on 08.02.2002 with plaintiff of the suit land for a
consideration of Rs.90,000/- and an earnest money of Rs. 54,000/- was paid to
defendant No. 1 by the plaintiff before the execution of agreement. Defendant
No. 2 is the State of Madhya Pradesh
3. By filing the written statement the defendant No. 1 denied all the
adverse allegation and contention raised against him and submitted that neither
he had executed the alleged agreement of sale dated 08.02.2002 nor had taken
the earnest money of Rs.54,000/- from the plaintiff. Defendant No. 1 has also
denied the delivery of possession of suit land to plaintiff. It is also
specifically denied that defendant No. 1 had taken the balance consideration
after execution of sale agreement. The instant suit has been filed on false and
bogus ground with ill will and ulterior motive. Looking to the cardinal
relationship amongst the parties the defendant No. 1 on an earlier occasion
sold a land of 50 decimal and the plaintiff request the defendant No. 1 to take
balance consideration of Rs.24,000/- after some time. When defendant No. 1
asked the plaintiff to pay the balance sum of Rs. 24,000/- thereafter this
amount was paid. The plaintiff also took the land of defendant No. 1 on “Batia” and hire the Tractor of
defendant No. 1 for which a sum of Rs.10,000/- was due. Plaintiff also hires
the thressar of defendant No. 1 for which a sum of Rs.10,000/- was due as the
plaintiff has mis-used the electricity illegally from MPEB. Defendant No. 1
also sold the milk upto the year 2003 for which defendant No. 1 paid Rs.
1,000/- and Rs.2,000/-. Plaintiff in order to grab the property worth lacs of
Rupees prepared the forged and fabricated documents. Defendant No. 1 never
executed the sale agreement. On the basis of forged documents a false suit was
instituted. Therefore prayed for the dismissal of the suit.
4. The defendant No. 2 was a formal party and no one was appeared on
their behalf and therefore no written statement was filed.
5. The Court below without appreciating that the fact, arbitrarily
and illegally passed the impugned Judgment and Decree dated 06.07.2012 whereby
and wherein directing the appellant to execute the sale deed of the suit land
in favour of plaintiff within a period of 2 months. Appellant is challenging
the arbitrary and illegal order passed by the Court below on the following
grounds amongst others :
GROUNDS URGED:
A. The Court below failed to appreciate that the normal remedy for
wrongful breach of contract is damages and not specific performance. Except in
the specified cases provided under the Specific Relief Act, 1963, specific
performance of contract cannot be granted. The present is not on the cases
covered by the said exceptions under Specific Relief Act, 1963. Therefore, even
as final relief this contract is not capable of specific performance. Thus only relief which can be given to the
plaintiff at the end of the trial, if he is able to prove that the breach of
the Contract by the appellant is wrongful, would be damages.
B. The Court below ought to have considered that that
plaintiff/respondent failed to prove his readiness and willingness to perform
his part of contracting view of law laid down by the apex Court in (2008) 12
SCC 145 Bal Krishna and another Vs. Bhagwan Das (dead) by L.Rs and others, AIR
1996 SC 2095 His Holiness Acharya Swami Ganesh Dassji Vs. Shri Sitaram Thapar
and AIR 2004 SC 3504 Pukhraj D.Jain Vs. G. Gopalakrishna. The Hon'ble Apex Court
C. That learned trial court ought to have use the
discretion under Section 20 of the Specific Relief Act, not to decree the suit
for specific performance.
D. The Court below failed to appreciate that the law of specific
relief permits a contracting party to approach the court and require the other
party to perform its side of bargain. The basis lies in equity as the contracts
create legally binding relationship and thus a party cannot sit idly by and
refuse to perform its obligations. However, since the approach to the court is
founded on equity, it requires the plaintiff to establish that the matter being
pursued is not a stale claim. The plaintiff is required to show his own
"readiness" and "willingness" to perform his side of
obligations and then only the court would require the defendant/respondent to
act. Common law has for long recognized this requirement and these have found
statutory backing under the Specific Relief Act of 1963 in India
E. The Court below committed the grave error and irregularity in not
considering that what remains a question of vital determination is as to the
meaning of these terms; "readiness" and "willingness"; in
as much as the fate of the claim hinges on their successful impleadment by
plaintiff. Giving an articulated insight, in a recent decision [M/s J.P.
Builders v. A. Ramadas Rao] the Supreme Court has explained the nuances
underlying these legally established concepts in the following terms;
“Section 16(c) of the Specific
Relief Act, 1963 provides for personal bars to relief. This provision states
that specific performance of a contract cannot be enforced in favour of a
person,
a)
who
would not be entitled to recover compensation for its breach; or
b)
who
has become incapable of performing, or violates any essential term of, the
contract that on his part remains to be performed, or acts in fraud of the
contract, or wilfully acts at variance with, or in subversion of, the relation
intended to be established by the contract; or
c)
who
fails to aver and prove that he has performed or has always been ready and
willing to perform the essential terms of the contract which are to be
performed by him, other than terms the performance of which has been prevented
or waived by the defendant.
Explanation.- For the purposes
of clause (c),-
where a contract involves the
payment of money, it is not essential for the plaintiff to actually tender to
the defendant or to deposit in court any money except when so directed by the
court; (ii) the plaintiff must aver performance of, or readiness and
willingness to perform, the contract according to its true construction.”
Among the three
sub-sections, we are more concerned about sub-section(c). “Readiness and
willingness” is enshrined in clause (c) which was not present in the old Act of
1877. However, it was later inserted with the recommendations of the 9th Law
Commission’s report. This clause
provides that the person seeking specific performance must prove that he has
performed or has been ready and willing to perform the essential terms of the
contract which are to be performed by him.
F. The words “ready” and “willing” imply that the person was prepared
to carry out the terms of the contact. The distinction between “readiness” and “willingness” is that the former
refers to financial capacity and the latter to the conduct of the plaintiff
wanting performance. Generally, readiness is backed by willingness.
G. The Court below failed to appreciate that in N.P. Thirugnanam vs.
Dr. R. Jagan Mohan Rao & Ors., (1995) 5 SCC 115 at para 5, the apex Court
held as under :
“…..Section 16(c) of the Act
envisages that plaintiff must plead and prove that he had performed or has
always been ready and willing to perform the essential terms of the contract
which are to be performed by him, other than those terms the performance of
which has been prevented or waived by the defendant. The continuous readiness
and willingness on the part of the plaintiff is a condition precedent to grant
the relief of specific performance. This circumstance is material and relevant
and is required to be considered by the court while granting or refusing to
grant the relief. If the plaintiff fails to either aver or prove the same, he
must fail. To adjudge whether the plaintiff is ready and willing to perform his
part of the contract, the court must take into consideration the conduct of the
plaintiff prior and subsequent to the filing of the suit alongwith other
attending circumstances. The amount of consideration which he has to pay to the
defendant must of necessity be proved to be available. Right from the date of
the execution till date of the decree he must prove that he is ready and has
always been willing to perform his part of the contract. As stated, the factum
of his readiness and willingness to perform his part of the contract is to be
adjudged with reference to the conduct of the party and the attending
circumstances. The court may infer from the facts and circumstances whether the
plaintiff was always ready and willing to perform his part of the contract.”
H. The Court below ought to have appreciated that in P.D’Souza vs.
Shondrilo Naidu, (2004) 6 SCC 649 paras 19 and 21, the apex Court observed as
under :
“It is indisputable that in a
suit for specific performance of contract the plaintiff must establish his
readiness and willingness to perform his part of contract. The question as to
whether the onus was discharged by the plaintiff or not will depend upon the
facts and circumstance of each case. No strait-jacket formula can be laid down
in this behalf…. The readiness and willingness on the part of the plaintiff to
perform his part of contract would also depend upon the question as to whether
the defendant did everything which was required of him to be done in terms of
the agreement for sale.”
I. The Court below committed grave error and irregularity in not
considering that under Section 16(c) of the Specific Relief Act, 1963 mandates
“readiness and willingness” on the part of the plaintiff and it is a condition
precedent for obtaining relief of grant of specific performance. It is also
clear that in a suit for specific performance, the plaintiff must allege and
prove a continuous “readiness and willingness” to perform the contract on his
part from the date of the contract. The onus is on the plaintiff. It has been
rightly considered by this Court in R.C. Chandiok & Anr. vs. Chuni Lal
Sabharwal & Ors., (1970) 3 SCC 140 that “readiness and willingness” cannot be treated as a straight jacket
formula. This has to be determined from the entirety of the facts and
circumstances relevant to the intention and conduct of the party concerned.
It is settled law that even in the absence of specific plea by the opposite
party, it is the mandate of the statute that plaintiff has to comply with
Section 16(c) of the Specific Relief Act and when there is noncompliance with
this statutory mandate, the Court is not bound to grant specific performance
and is left with no other alternative but to dismiss the suit. It is also clear
that readiness to perform must be established throughout the relevant points of
time. “Readiness and willingness” to
perform the part of the contract has to be determined/ascertained from the
conduct of the parties.
J. The finding recorded by the Court below in
holding that plaintiff entered into an agreement of purchase with defendant No.
1 in respect of land bearing Khasra No. 318/3, area measuring 0.32 acre situated
at Village – Khajuri Kalan, Tahsil Huzur, Bhopal District – BHOPAL (Madhya
Pradesh) on a consideration of Rs.90,000/-.
K. The Court below ought to have held that the defendant No. 1 did
not executed the agreement of sale dated 08.02.2002 in favour plaintiff.
L. The Court below committed grave error and irregularity in holding
that plaintiff paid earnest money of Rs.54,000/- before execution of the
agreement and Rs.17,500/- on 08.02.2002 at the time of execution. This finding
is perverse, malafide and not sustainable in Law.
M. The Court below ought not to have held that plaintiff has paid a
sum of Rs. 4,000/- on 13.06.2002 and Rs. 2,000/- on 26.09.2002 to the defendant
No. 1 herein in part performance of sale deed.
N. The Court below committed grave error and irregularity in holding
that the defendant No. 1 has handed over the possession of suit land to the
plaintiff on 08.02.2002.
O. The Court below failed to appreciate that
plaintiff was neither ready nor willing to get the sale deed executed.
P. The Court below ought to have appreciated that
the notice dated 09.08.2003 is no notice at all and it was not served on
defendant No. 1 personally.
Q.
That the learned Court below has erred in questions of law as well
as of facts.
R. That the learned Court below
has not been provided an opportunity of hearing to the appellant herein. Even
the averments made by him in the written statement have not been dealt with by
the learned court below.
S.
That the findings of the learned Court below are liable to be reversed
as they are based on imagination, incorrect and wrong appreciation of facts.
T.
That the Judgment of the learned Court below is erroneous and
deserves to be reversed as it is based on mere surmises and misconception of
facts and law.
U.
The Judgment and Decree of the court below is perverse, malafide
and not sustainable in law.
V.
Because if the impugned Judgment and Decree, if allowed to stand,
would occasion a failure of justice and cause irreparable injury to the
appellant against whom it was made.
W.
Because
the findings reached by the learned Court below is vitiated due to
non-consideration of material evidence and by consideration of inadmissible
evidence.
X.
The nature of suit for
specific performance of contract has been highlighted by apex Court in several
cases. In Rajeshwari v. Puran Indoria
(2005 (7) SCC 60), it was inter- alia observed as under:
"5. Normally, a suit for specific
performance of an agreement for sale of immovable property involves the
question whether the plaintiff was ready and willing to perform his part of the
contract in terms of Section 16 of the Specific Relief Act, whether it was a
case for exercise of discretion by the court to decree specific performance in
terms of Section 20 of the Specific Relief Act and whether there were laches on
the part of the plaintiff in approaching the court to enforce specific
performance of the contract. In some cases, a question of limitation may also
arise in the context of Article 54 of the Limitation Act on the terms of the
agreement for sale. Other questions like the genuineness of the agreement,
abandoning of the right to specific performance, a novation and so on, may also
arise in some cases. No doubt, a finding on the three primary aspects indicated
earlier would depend upon the appreciation of the pleadings and the evidence in
the case in the light of the surrounding circumstances.
6. The right to specific performance of an
agreement for sale of immovable property, when filed, raises questions of
substantial importance between the parties as to whether the plaintiff has
satisfied the requirements of Section 16 of the Specific Relief Act, whether it
is a case in which specific performance of the contract is enforceable in terms
of Section 10, whether in terms of Section 20 of the Act, the discretion to
decree specific performance should be exercised by the court and in some cases,
whether the suit was barred by limitation and even if not, whether the
plaintiff has been guilty of negligence or laches disentitling him to a decree
for specific performance. These questions, by and large, may not be questions
of law of general importance. But they cannot also be considered to be pure
questions of fact based on an appreciation of the evidence in the case.
They are questions which have to be adjudicated upon, in
the context of the relevant provisions of the Specific Relief Act and the
Limitation Act (if the question of limitation is involved). Though an order in
exercise of discretion may not involve a substantial question of law, the
question whether a court could, in law, exercise a discretion at all for
decreeing specific performance, could be a question of law that substantially
affects the rights of parties in that suit."
Y. The Court below ought to have interpreted
the clause 10 of the terms and
conditions of the agreement in question dated 08.02.2002 Exhibit P-5 in its
proper perspective could have refused to grant the decree of specific performance.
Z. The Court below
ought to have appreciated that the points for determination were (a) whether in
this case the time was essence of the contract, (b) whether the plaintiff was,
ready and willing to perform his part of the contract and therefore, the suit
for specific performance of contract can not be decreed against defendant No.
1. It is true that in the case of contracts for sale of land, time is not, as a
rule, of the essence of the contract, the presumption in such contracts being
that the parties intended that performance should take place within a
reasonable time even though a time-was mentioned in the agreement. The
presumption is, however, rebuttable, and the seller is entitled to make the
time the essence of the contract by specifically giving a notice to the
purchaser. It was observed by the Privy Council in Jamshed v. Burjorji, AIR
1915 PC 83 : "Equity will not assist where there has been undue delay on
the part of one, party to the contract, the other party has given him reasonable
notice that he must complete within a definite time". In Gomathinayagam Pillai v. Palaniswami
Nadar, AIR 1967 SC 868, it has
been held that if time is not of essence originally, it could be made of
essence even subsequently by serving notice on the other party. Relying upon
the decision of the Supreme Court, Delhi High Court in Raj Rani Bhasin v. S.
Karkar Singh, AIR 1975 Delhi
"No doubt the presumption is that in a
contract for sale of immovable property time is not the essence of the contract
and the mere stipulation of a date before which the sale deed was to be
executed and the stipulation that the earnest money would be forfeited if the
date was not adhered to would not necessarily make the time the essence of the
contract but the seller is entitled to make the time the essence of the
contract by specifically giving a notice to the purchaser if the purchaser was
found to be delaying performance of the contract".
CAVEAT
:
6. That, no notice of lodging a caveat
by the opposite party is received.
PRAYER
It is therefore most humbly and respectfully prayed that Judgment
and Decree dated 06.07.2012 passed by the Ist Additional Judge to the Court of
Ist Additional District Judge, Mr. Shri Ram Sharma, Bhopal District – BHOPAL
(Madhya Pradesh) in the matter of Mr. Ram Naresh Patel V/s Mr. Pratap Singh
& Anor. in the file of Regular Civil Suit No. 38-A of 2009, may kindly be
set aside, with costs throughout in the larger interest of Justice.
PLACE : JABALPUR
DATE : ADVOCATE
FOR APPELLANT
IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR
FIRST APPEAL NO. 791 OF 2012.
APPELLANT/ : PRATAP SINGH
VERSUS
RESPONDENTS/ : MR. RAM NARESH
PATEL & ANOR.
LIST OF DOCUMENTS
|
S.No
|
Description of document
|
Date of document
|
Original copy
|
Number of page
|
|
1.
|
Judgment and Decree passed by the Ist Additional Judge to the
Court of Ist Additional District Judge, Mr. Shri Ram Sharma, Bhopal District
–
|
06.07.2012
|
Certified Copy
|
06
|
|
2.
|
Registered
legal notice issued by plaintiff
|
27.07.2012
|
Xerox
|
01
|
PLACE : JABALPUR
DATE : ADVOCATE
FOR APPELLANT
IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR
FIRST APPEAL NO. 791 OF 2012.
APPELLANT/ : PRATAP SINGH
VERSUS
RESPONDENTS/ : MR. RAM NARESH
PATEL & ANOR.
APPLICATION
UNDER ORDER 41 RULE 5 OF THE CODE OF CIVIL PROCEDURE, 1908
Appellant / plaintiff named above most humbly and respectfully
begs to submit as under :
1. Appellant / plaintiff has preferred the instant first appeal under
Section 96 of the Code of Civil Procedure, 1908 against the Judgment and Decree
dated 06.07.2012 passed by the Ist Additional Judge to the Court of Ist
Additional District Judge, Mr. Shri Ram Sharma, Bhopal District – BHOPAL
(Madhya Pradesh) in the matter of Mr. Ram Naresh Patel V/s Mr. Pratap Singh
& Anor. in the file of Regular Civil Suit No. 38-A of 2009, whereby and
wherein directing the appellant to execute the sale deed of the suit land in
favour of plaintiff within a period of 2 months.
2. As per the averments made in the memo of appeal, the appellant has
a good prima facie case in his favour and hopes to succeed in it. If during
pendency of instant appeal the execution of the impugned decree is not stayed,
the appellant would suffer irreparable loss and injury. Copy
of the registered legal notice dated 27.07.2012 issued by plaintiff is filed herewith and marked as Annexure A-1. The balance
of convenience too lies in his favour.
3. From the facts and circumstances narrated hereinabove in the
preceding paras, it is expedient in the interest of justice that pending final
disposal of instant appeal the execution of impugned decree be stayed.
An affidavit in support of instant application is being filed
herewith.
PRAYER
It is, therefore most
humbly and respectfully prayed that during pendency of instant appeal the
execution of impugned Judgment and Decree dated
06.07.2012 passed by the Ist Additional Judge to the Court of Ist Additional
District Judge, Mr. Shri Ram Sharma, Bhopal District – BHOPAL (Madhya Pradesh)
in the matter of Mr. Ram Naresh Patel V/s Mr. Pratap Singh & Anor. in the
file of Regular Civil Suit No. 38-A of 2009, may kindly be stayed in the larger
interest of justice.
PLACE : JABALPUR
DATE : ADVOCATE
FOR APPELLANT
IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR
FIRST APPEAL NO. 791 OF 2012.
APPELLANT/ : PRATAP SINGH
VERSUS
RESPONDENTS/ : MR. RAM NARESH
PATEL & ANOR.
AFFIDAVIT
I, PRATAP SINGH, aged about 52 years, S/o Late Mr. Karan Singh
Thakur, R/o Village – Khajuri Kalan, Tahsil Huzur, Bhopal District – BHOPAL
(Madhya Pradesh), the above named deponent, solemnly affirm and state on
oath as under:
1.
That I am the appellant in the above
mentioned first appeal and am fully conversant with the facts deposed to in the
first appeal.
2.
That the contents of paragraphs 1 to 3 of
the accompanying application are true to my personal knowledge and the contents
of paragraphs are based on legal advice, which I believe to be true. No
material has been concealed and no part is false.
DATED : DEPONENT
DEPONENT
VERIFICATION
I,
PRATAP SINGH, the above named deponent do
hereby verify on oath that the contents of the affidavit above are true to my
personal knowledge and nothing material has been concealed or falsely stated.
Verified at ______this______day of _______
DEPONENT
APPENDIX 1-A
FORMAT OF V A K A L A T N A M A
[Rules
4 (1) of the Rules framed under the Advocates Act, 1961]
IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR
FIRST APPEAL NO. 791 OF 2012.
APPELLANT/ : PRATAP SINGH
VERSUS
RESPONDENTS/ : MR. RAM NARESH
PATEL & ANOR.
I,
the Appellant / defendant No. 1 named below do hereby appoint, engage and
authorize advocate (s) named below to
appear, act and plead in aforesaid case / proceeding, which shall include
applications for restoration, setting aside for ex - parte orders, corrections,
modifications, review and recall of orders assed in these proceedings, in this
Court or in any other Court in which the same may be tried / heard / proceeded
with and also in the appellate, revisional or executing Court in respect of the
proceedings arising from this case / proceedings as per agreed terms and
conditions and authorize them to sign and file
pleadings , appeals, cross objections, petitions, applications,
affidavits, or the other documents as may be deemed necessary and proper for
the prosecution / defence of the said
case in all its stages and also agrees to ratify and confirm acts done by them
as if done by me.
In witness whereof I do
hereby set our hands to these presents, the contents of which have been duly
understood by us, this – day of ----------------- 2012 at Jabalpur
Particulars (in block letters) of each Party Executing Vakalatnama
|
Name and father’s / Husband’s Name
|
Registered Address
|
E-Mail Address (if any)
|
Telephone Number (if any)
|
Status in the case
|
Full Signature/ **Thumb
Impression
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
(6)
|
|
PRATAP SINGH, AGED ABOUT 52 YEARS, LATE MR. KARAN SINGH THAKUR
|
R/O VILLEAGE – KHAZURI
KALAN, TAHSIL HUZUR,
|
|
|
APPELLANT
|
|
Accepted
Particulars (in
block letters) of each Advocate Accepting Vakalatnama
|
|
Full Name &
Enrollment No. in State Bar Council
|
Address for Service
|
E-mail Address (if any)
|
Telephone Number (if
any)
|
Full Signature
|
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
1.
|
VIJAY RAGHAV SINGH
EN. No. M. P. /
ADV / 1554 / 2003
|
SEAT NO. 93,
|
vijayraghav_singh@rediffmail.com
|
IDEA 98261-43925
|
|
|
2.
|
VIJAY SHRIVASTAVA, EN.
No. M. P. / ADV / 949 / 2006
|
SEAT NO. 81, HALL NO.
1, FIRST FLOOR, VIDHI BHAWAN, HIGH COURT PREMISES,
|
NIL
|
RIM 93015 04927
AIRTEL 97554 82448
|
|
|
3.
|
SAURABH SAHNI,
EN. No. M. P. /
ADV / 1184/ 2006
|
HOUSE NO. 862,
|
Saurabh.sahni@gmail.com
|
IDEA 88895 22205
LAND LINE 0761 - 2624978
|
|
|
4.
|
AMIT KUMAR KHARE,
EN. No. M. P. /
ADV / 1291/ 2006
|
HOUSE NO. 1483 / 17,
SARASWATI COLONY,
|
NIL
|
BSNL 94258 66726
LAND LINE 0761 - 2345 005
|
|
*Score out
which is not applicable
** The thumb
impression shall be attested by a literate person giving above particulars.
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