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Satish Khairnar

2023 Supreme(Online)(RAJ) 15690

RAJASTHAN HIGH COURT PRINCIPAL SEAT JODHPUR

BIRMA DEVI – Appellant
Versus
SUBHASH – Respondent
CFA 532 2022
Decided On : 21-09-2023

[2023:RJ-JD:29796]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil First Appeal No. 532/2022

Birma Devi W/o Late Shri Ashwani Kumar, Aged About 52 Years,

By Caste Jat, Resident of Suranwali, Tehsil Pilibanga, District

Hanumangarh.

----Appellant

Versus

Subhash S/o Shri Brijlal, Aged About 45 Years, By Caste Jat,

Resident of Suranwali, Tehsil Pilibanga, District Hanumangarh.

----Respondent

For Appellant(s)

Mr. S.L. Jain

For Respondent(s)

Mr. Sushil Bishnoi

HON'BLE MS. JUSTICE REKHA BORANA

Judgment

21/09/2023

1.

The present appeal has been preferred against the judgment

and decree dated 21.10.2022 passed by the Special Judge

(N.D.P.S. Cases), Hanumangarh in Civil Original Suit No.49/2018

(28/2016) whereby the suit for specific performance of the

agreement and perpetual injunction has been decreed.

2.

Brief facts of the case are as under:

i.

The plaintiff-respondent Subhash filed a suit for specific

performance of agreement dated 09.10.2014 executed in his

favour by the defendant-appellant Birma Devi. It was

averred in the plaint that the defendant had agreed to sell a

portion of her agricultural land measuring 0.759 Hectares

entered/situated as/at Khata no.70/68, Stone no.12/241,

Murraba no.34, Kila no.16, 24 and 25 at Chak no.40 LLW (B)

Tehsil Pilibanga to the plaintiff for a consideration of

Rs.5,50,000/-. An advance payment of Rs.5,00,000/- was

received by the defendant and an agreement to the effect

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was executed on 09.10.2014. Vide the agreement, it was

agreed that the sale deed would be executed and got

registered in favour of the plaintiff by the defendant on

15.05.2015 and remaining consideration amount of

Rs.50,000/- would be paid by the plaintiff to the defendant

on the said date. It was also a condition of the agreement

that if the defendant fails to execute the sale deed on the

said date, plaintiff would be free to get it executed by the

Court and if the plaintiff fails to pay the remaining

consideration amount, the advance amount would be

forfeited by the defendant.

ii. It was further averred in the plaint that on 01.05.2015 i.e.,

ten days before the date fixed for execution of the sale deed

i.e., 15.05.2015, defendant sought extension of time till

13.04.2016 to execute the same. An agreement to the

effect was entered into and handed over to the plaintiff by

the defendant whilst the other terms of original agreement

to sell remained same. On 13.04.2016, plaintiff went to the

office of Sub-Registrar, Goluwala with complete documents

and the remaining consideration amount with an intention to

pay the same to defendant and to get the sale deed

registered in his favour but defendant Birma Devi did not

turn up. Thereafter, despite continuous requests, she kept

on evading the execution of the sale deed. Hence, on

24.08.2016, a registered notice, calling upon the defendant

to receive the due/remaining sale consideration of

Rs.50,000/- and get the sale deed registered in the favour of

plaintiff within 15 days of its receipt, was served upon the

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defendant which was received by her on 27.08.2016. When

the same was not responded to, the present suit was

instituted with a prayer for specific performance of the

agreement dated 09.10.2014 and also for an injunction to

restrain the defendant from alienating the suit property.

iii. A written statement was filed by defendant-Birma Devi and

she categorically denied the execution of agreement to sell

as well as the receipt of the advance amount of

Rs.5,00,000/- on 09.10.2014 qua sale consideration. It was

stated that the value of her agricultural land is about

Rs.15,00,000 and there was no need for her to sell the land.

It was the case of the defendant that plaintiff got her thumb

impressions on the agreement to sell dated 09.10.2014

before Sub-Registrar under the garb of getting her a bank

loan against the subject land. The document dated

09.10.2014 and any sale in pursuance of the said document

was never intended to be executed by the defendant as it

was entered upon due to fraudulent act of the plaintiff

without any sale consideration been received by the

defendant. Therefore, the same cannot be directed to be

acted upon. She admitted the receipt of notice dated

24.08.2016 but pleaded that after receipt of the notice, she

contacted the plaintiff who assured that the said agreement

would be annulled. A prayer for dismissal of the suit with

the aforesaid submissions was made.

3.

On basis of the pleadings of the parties, the learned trial

Court framed the following six issues:

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“7. उभय पक्ष के अभिभवचनों के आधार पर न्यायालय द्वारा

भिनम्नभिलखित भिववाद्यक भिवरभिचत भिकए गए:

(1) आया प्रभितवाभि"या ने वा"ी के हक में भि"नांक 09.10.2014 को

प्रश्नगत सम्प"ा का भिवकय इकरारनामा सप्रभितफल भिनष्पाभि"त भिकया?

(2) आया वा"ी भिवकय इकरारनामा भि"नांक 09.10.2014 में वभि-.त

अपने भि/म्मे की शत2 की पालना हेतु स"ैव तत्पर व तैयार रहा है?

(3) आया वा"ी द्वारा वा" अल्प न्याय शुल्क पर प्रस्तुत भिकया गया

है?

(4) आया वा"ी प्रश्नगत भिवकय इकरारनामा भि"नांक 09.10.2014

की भिवभिनभि".ष्ट अनुपालना करवाने का अभिधकारी है?

(5) आया वा"ी प्रभितवाभि"या के भिवरूद्ध वा" में वभि-.तानुसार शाश्वत

व्या"ेश प्राप्त करने का अभिधकारी है?

(6) अनुतोष?”

4.

The plaintiff got examined four witnesses, himself (PW-1),

Ramchandra Mittal (PW-2) – Waseeqa Nawis, Anil Kumar (PW-3) –

defendant’s son and Ved Prakash (PW-4) – defendant’s brother-in-

law and got exhibited 7 documents (Exhibit 1 to 7). The

defendant got examined herself only (DW-1).

5.

After hearing the parties, the learned Court below, vide the

impugned judgment and decree dated 21.10.2022, proceeded on

to decree the suit of the plaintiff and directed the defendant to

execute the sale deed in her favour after receiving the balance

consideration amount within a period of two months and further

restrained the defendant from alienating the suit property.

6.

Before adverting into the other grounds as raised by learned

counsel for the appellant, consideration of the preliminary

objection raised by him qua the impugned judgment and decree is

relevant. Learned counsel submitted that while deciding issue

No.2, the Court below did not give any specific decision on the

said issue as para No.39, wherein finding on issue No.2 has been

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concluded, is not complete in any sense and therefore, it would be

deemed that issue No.2 remained undecided.

7.

In response to the said submission, learned counsel for the

respondent submitted that after judgment dated 21.10.2022 been

passed, an application for correction of the said discrepancy in

para No.39 was preferred on behalf of the plaintiff and the said
application was allowed vide order dated 15.12.2022. Vide order

dated 15.12.2022, it was observed by the Court below that the

concluding part pertaining to the finding/decision on Issue No.2

could not be typed because of an inadvertent error of the typist

and hence, direction to add two sentences to the said para so as

to conclude the finding on the said issue was given. Vide the said

order, the following two sentences were directed to be added in

red ink to para No.39 (page 19)

“;g nkok izLrqr fd;k x;k gSA vr% ;g rudh oknh us c[kwch

izekf.kr dh gSA vr% ;g rudh oknh ds i{k esa ,oa izfrokfn;k ds

fo:) fuf.kZr dh tkrh gS”

Consequently, the above two lines were added to the para

and an amendment copy of the judgment dated 21.10.2022 was

also issued. The application as preferred before the Court below,

order dated 15.12.2022 and the amended judgment and decree

dated 21.10.2022 have been placed before this Court by learned

counsel for the respondent which are permitted to be taken on

record.

In view of the order dated 15.12.2022, the ground as raised

by learned counsel for the appellant been taken care of, no more

survives.

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8.

Learned counsel for the appellant raised the following other

grounds:

i.

The impugned judgment and decree deserves to be set aside

only on the count that the same was in contravention to the

basic provision of Indian Evidence Act, 1872 (hereinafter

referred to as, ‘the Act of 1872’). Section 138 of the Act of

1872 provides for the process/order for examination of

witnesses. The said process was not at all followed by the

Court below in so far as PW-3 and PW-4, who were the

plaintiff witnesses, were permitted to be cross-examined by

the plaintiff himself after they being declared hostile. There

is no provision under the civil law for declaration of a witness

to be hostile and for permitting the plaintiff to cross-examine

his own witness. Even then, if the plaintiff was permitted to

cross-examine his own witnesses, defendant ought to have

been permitted to re-examine or cross-examine the said

witnesses. A perusal of the statements of PW-3 and PW-4

makes it clear that the defendant did not cross-examine the

said witnesses and hence it is proved that he was denied the

right of cross-examination. The Court below proceeded on

to decree the suit of the plaintiff totally relying upon the

evidence of the said witnesses, i.e., PW-3 and PW-4 only.

The reliance on their evidence was evidently in contravention

to law and hence, the impugned judgment deserves to be set

aside.

ii. It was the specific case wherein it was proved on record that
the plaintiff did not have the complete consideration amount

available with him on the stipulated date of execution of sale

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deed. The plaintiff (PW-1) specifically admitted in his cross-

examination that he was not in possession of complete

balance consideration amount and hence, the Court could

not have concluded the issue of readiness and willingness in

his favour. Learned counsel submitted that it is the settled

proposition of law that the person calling for performance of

contract must prove in unequivocal terms that he was ready

and willing to perform his part of the contract. Proof of

readiness and willingness is a sine qua non for a suit for

specific performance and the plaintiff having miserably failed

to prove the same, Issue No.2 could not have been decided

in his favour. Further, the plaintiff having failed to prove as

to from where he managed the amount of Rs.5,00,000/-

alleged to be paid qua the consideration and as to why he

did not take the possession of the property despite the

substantial part of the consideration amount having been

paid, the issue was wrongly decided against the defendant

and in favour of the plaintiff.

iii. Section 16(C) of the Specific Relief Act, 1963 provides for

proof of not only readiness but also willingness of the party

praying for the relief of specific performance of contract.

To prove readiness, the plaintiff was required to prove

that he was in possession of the complete consideration

amount not only on the stipulated date of execution of sale-

deed but also on all the subsequent dates till the institution

of the suit.

In the present case, it was an admitted case of the

plaintiff that he was not in possession of the balance

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consideration amount and hence, the Court could not have

concluded that the plaintiff was ready to perform his part of

the contract.

iv. The plaintiff has not proved on record as to why the

stipulated date for execution of the sale-deed i.e.

15.05.2015 was extended to 13.04.2016. The same having

not been proved, the factum of denial of execution of sale

could not have been held to be proved.

v. Issue No.1 was also wrongly decided in favour of the plaintiff

despite the specific admission of PW-2, the alleged deed-

writer that no transaction took place before him.

In support of his submissions, learned counsel relied upon

the following judgments:

1. U.N. Krishnamurthy (Since Deceased) Thr. LRs. vs.

A.M. Krishnamurthy, AIR 2022 SC 3361

2. Man Kaur (Dead) by Lrs. vs. Hartar Singh Sangha,

(2010) 10 SCC 512

3. Bal Krishna and Ors. vs. Bhagwan Das (Dead) and

Ors., (2008) 12 SCC 145

4. Hansraj vs. Govind Narain, 2005 (3) DNJ (Raj.) 1465

5. Mirahul Enterprises and Ors. vs. Vijaya Sirivastava and

Ors., AIR 2003 Delhi 15

9.

Per contra learned counsel for the respondent submitted as

under:

i.

Agreement to sell dated 09.10.2014 was a registered

document and there is a presumption in law that a document

which is registered is a valid document.

ii. The factum of the execution of agreement to sell was very

well proved on record and was rather admitted by the

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defendant as well as the attesting witnesses. The said

document bears signatures of the attesting witnesses i.e.

PW-3 and PW-4 who are the son and brother-in-law of the

defendant herself. The said signatures having been admitted

by both the witnesses and even by the defendant herself, it

is not open for the defendant to aver anything contrary to

the same. The fact was also proved vide the register of

Waseeqa Nawis produced in evidence and exhibited as Exh.-

7A.

iii. The agreement (Exh.3) for extension of the stipulated date

of execution also bears signatures of Sunil Kumar, second

son of the defendant and the said fact has not been denied

either by the defendant or any of the witnesses. The same

was clearly proved on record.

iv. The factum of the agreement to sell having been entered

into and the consideration amount of Rs.5,00,000/- having

been paid on that date is even substantiated by the fact that

the defendant purchased 25 bighas of land at some other

place and the dates of said purchase specifically tally with

the dates of present transaction which further fortifies the

case of the plaintiff that the defendant sold the plot in

question for purchasing some other property. The fact of

some other property having been purchased during the same

period was even proved by the statements of the defendant

recorded in another suit wherein she admitted the fact of

having purchased 25 bighas of land.

v. It is totally wrong to aver that the defendant was denied any

right of cross-examination. A perusal of the statements of

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PW-3 and PW-4 would make it evident that there was no

such request even been made by learned counsel for the

defendant and hence, no question of the same having been

rejected arise.

vi. So far as service of the notice calling upon the defendant to

execute the sale-deed is concerned, the same was very well

served on her after she having refused to execute the sale

deed in his favour. The said notice was not responded to and

hence, the suit in question was filed. The defendant had

earlier assured him to execute the sale-deed and hence, no

cause to serve any notice upon her ever arose prior to

15.05.2015.

10. In rejoinder, learned counsel for the appellant submitted that

the statements of the defendant (Exh.8) recorded in some other

matter could not have been considered and relied upon by the

Court in the present suit in contravention to the provisions of law.

In alternate, learned counsel submitted that the defendant is

ready to repay the alleged paid consideration amount with interest

to the plaintiff and the impugned decree be modified to a decree

for repayment of the consideration amount while setting aside the

same for specific performance.

In support of his contention, learned counsel for the

respondent has relied upon the following judgments:

i.

R. Lakshmikantham vs. Devaraji, (2019) 8 SCC 62

ii.

Harvinder Kaur vs. Mandeep Singh, (2020) 1 CivCC

102

iii.
Mattam Ravi and Ors. vs. Mattam Raja Yellaiah and

Ors., AIR 2017 AP 155

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11.

Heard learned counsel for the parties and perused the

material available on record.

12.

Coming to the first ground as raised by learned counsel for

the appellant regarding the permission granted to the plaintiff to

cross-examine his own witnesses and further denying defendant

to cross-examine them. The averment of the counsel that cross-

examination of PW-3 and PW-4 by plaintiff was in contravention to

the procedure for examination as prescribed under the Act of

1872, finds an apt reply in Section 154 of the Act of 1872 which

reads as under:

“S. 154. Question by party to his own witness:-

The Court may, in its discretion, permit the person who

calls a witness to put any questions to him which might

be put in cross-examination by the adverse party.”

13.

The above provision is an apt answer to the averment as

raised by learned counsel for the appellant. The said provision

clearly vests a discretion with the Court to permit the person who

calls a witness to put any question to him which can be put in

cross-examination by the adverse party. Section 154 does not

make any distinction between the civil or the criminal law.

Meaning thereby, the provision is applicable to the proceedings of

civil as well as criminal nature.

Dealing with a similar question and Section 154 of the Act of

1872, the Andhra Pradesh High Court in the case of Mattam Ravi

(supra) held as under:

“7.2. A plain reading of the section makes it clear that

it does not make any distinction between civil and

criminal cases. It only vests discretion in the Court

to permit the person, who calls a witness, to put

any question which can be put in cross-

examination by the adverse party. Such a request

can be made in civil as well as in criminal cases.

What is required to be considered is when such a

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request should be made and how such wide discretion

vested in the Court ought to be exercised by the

Court.”

Therefore, in view of the clear provision of law, it cannot be

concluded that the grant of permission by the Court below to the

plaintiff to cross-examine his own witnesses was in contravention

of law.

14.
So far as the declaration of the witnesses to be hostile and

reading of their evidence is concerned, the Hon’ble Apex Court in

the case of Gura Singh vs. State of Rajasthan (2001) 2 SCC

205, cleared the misconception on the efficacy of the testimony of

a witness declared hostile. After extensively referring to

precedent decisions, the Hon’ble Supreme Court held:

“11. There appears to be a misconception regarding the

effect on the testimony of a witness declared hostile. It

is a misconceived notion that merely because a witness

is declared hostile his entire evidence should be

excluded or rendered unworthy of consideration……”

In view of the above ratio and in view of the settled position

of law, this Court is of the clear opinion that the permission

granted to the plaintiff to cross-examine his witnesses was

perfectly valid in terms of law and further, the deposition of the

said witnesses was rightly relied upon by the Court below to arrive

at a finding while deciding Issue No.1 pertaining to factum of the

execution of agreement in question.

15.

So far as the ground taken by learned counsel for the

appellant that PW-2, the alleged deed writer himself admitted that

the transaction did not take place before him is concerned, the

same is clearly, reading of a part of the evidence. The complete

statement as made by PW-2 in this regard was as under:

“;g lgh gS fd izn”kZ&2 dh fy[kk i<h ds oDr esjs lkeus ysu

nsu ugha gqvk Fkk ysfdu izfrQy jkf”k izkIr djuk Lohdkj fd;k
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FkkA esjs le{k ;fn ysu nsu ugha gksrk gS rFkk foØsrk us jkf”k

izkIr djuk Lohdkj fd;k gS rks eSa nLrkost esa ,slh jkf”k izkIr

djuk fy[krk gw¡ tks eSaus izn”kZ&2 esa fy[kh gSA”

A composite reading of the above statement clarifies that the

said witness has admitted that although the giving and taking of

the consideration amount did not take place before him but the

factum of the receipt of the consideration amount was very well

admitted before him. The overall reading of the statements of

PW-2 does fortify the story/case of the plaintiff.

16.

The Court below, while relying upon the statements of D.W.-

1, defendant witness and PW-3 and PW-4, the attesting witnesses

wherein they specifically admitted their signatures on the

agreement in question, decided Issue No.1 in favour of the

plaintiff. The Court observed that had the document been entered

into fraudulently, the attesting witnesses, who were admittedly

educated, would not have put their signatures on the same. Even

if it is assumed that the defendant was an illiterate lady and

signed the agreement in question in some misbelief, the attesting

witnesses who were the son and brother-in-law, could not have

signed the same under the same misbelief, they being not

illiterate. This Court is of the clear opinion that the finding as

reached by the Court below on Issue No.1 being totally in

consonance with law as well as the material available on record,

does not deserve any interference and is hereby affirmed.

17.

The finding on Issue No.2 regarding readiness and

willingness has also been assailed. It is clear on record that the

date initially fixed for performance of the contract was 15.05.2015

and the same was extended at the request of defendant till

13.04.2016. The factum of an agreement for extension of the

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date has also not been denied by the defendant and the

signatures on the same of other son of the defendant has rather

been admitted by the defendant. Therefore, the plaintiff was

clearly not required to take any action till 13.04.2016. So far as

his readiness and willingness post 13.04.2016 is concerned, the

plaintiff specifically pleaded that he appeared before the office of

the Registrar on 13.04.2016 to get the sale deed executed but the

defendant did not turn up. Further, the defendant was

continuously requested to get the sale deed executed which she

assured to execute and never denied till the month of August

2016. It is only in the month of August 2016 that she tried to

avoid the request of the plaintiff and the plaintiff, soon after that,

served a registered notice dated 24.08.2016 calling upon her to

receive balance consideration amount and get the sale deed

executed. When the notice remained unresponded to, the present

suit was filed on 24.09.2016.

In the opinion of this Court, the above facts are sufficient to

prove the willingness of the plaintiff to perform his part of the

contract and the Court below rightly held the same in favour of

the plaintiff.

18.

So far as the readiness on part of the plaintiff is concerned,

he clearly deposed as under:

“fedj fnukad 13-04-2016 dks “ks’k izfrQy jkf”k ,oa

[kpkZ cS;ukek dk izcU/k dj dk;kZy; miiath;d xksywokyk esa

foØ; vuqcaf/kr Hkwfe dk cS;ukek vius i{k esa djokus ds fy,

mifLFkr jgk ysfdu izfrokfn;k mifLFkr ugha vkbZA”

The averment of learned counsel for the appellant regarding

admission of the plaintiff that he did not possess the consideration

amount is also baseless as the plaintiff deposed as under:

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“izn”kZ&2 ds fnol esjs ikl jftLVªh djokus ds fy;s dqy

izfrQy jkf”k ugha FkhA”

A perusal of the above statement makes it clear that the said

admission is qua the date of execution of agreement to sell and

not qua the stipulated date for execution of the sale deed. The

said statement cannot be read in isolation and it cannot be

concluded that the plaintiff was not possessed of sufficient means

to pay the remaining sale consideration.

19.

As held in Madhukar Nivrutti Jagtap vs Pramilabai

Chandulal Parandekar, (2020) 15 SCC 731, the question as to

whether the plaintiff seeking specific performance has been ready

and willing to perform his part of contract is required to be

examined with reference to all the facts and surrounding factors in

a given case. The requirement is not that the plaintiff should

continuously approach the defendant with payment or make

incessant requests for performance. The Hon’ble Apex Court

further held as under:-

“For the relief of specific performance, which is

essentially a species of equity but has got statutory

recognition in terms of the Specific Relief Act, 1963,

the plaintiff must be found standing with the contract

and the plaintiff’s conduct should not be carrying any

such blameworthiness so as to be considered

inequitable. The requirement of readiness and

willingness of the plaintiff is not theoretical in nature

but is essentially a question of fact, which needs to be

determined with reference to the pleadings and

evidence of parties as also to all the material

circumstances having bearing on the conduct of

parties, the plaintiff in particular.”

Coming to the facts of the present case, as observed above,

in terms of the agreement to sell dated 09.10.2014, the stipulated

date for execution of sale was 15.05.2015 and the said date was
extended at the request of the defendant only to 13.04.2016. In

the said circumstances, what can be concluded would be that the

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defendant was not ready to perform her part of the contract on

the original stipulated date of execution. An analysis of the overall

circumstances and the conduct of the parties in the present matter

is sufficient to show that the plaintiff, who admitted the execution

of the original agreement as well as the agreement for extension

of the date for execution of sale, subsequently declined to execute

the same. Further, an important aspect in the present matter is

that out of the total sale consideration of Rs.5,50,000/-, the

substantial amount of Rs.5,00,000/- was paid in advance and due

consideration amount was just Rs.50,000/-.

20.

As is the settled position of law, the factum of readiness and

willingness is to be adjudged with reference to the conduct of the

parties and the attending circumstances. Testing on the

touchstone of the ratio as laid down by the Hon’ble Apex Court,

this Court is of the clear opinion that the plaintiff successfully

proved by cogent evidence that he was ready and willing to

perform his part of the contract and the finding of the Court below

on Issue No.2 is totally in consonance with the evidence as led by

the parties and the same is hereby affirmed.

21.
So far as the findings on other issues are concerned, no

challenge to the same has been made by the counsel before this

Court during the course of arguments and hence, the Court is not

required to delve into the same. Even otherwise, the findings on

Issue Nos.4 & 5 are totally dependent on the findings on Issue

Nos.1 & 2 and the findings of Issue Nos.1 & 2 having been

affirmed by this Court, findings on Issue Nos.4 & 5 are also hereby

affirmed.

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22.

So far as Issue No.3 pertaining to the court fee is concerned,

the Court below observed that the defendant who examined

herself did not depose a single statement regarding the said issue

in her cross-examination. Though she stated that market price of

the land in question is Rs.15,00,000/- per bigha, she did not

produce any sale deed or DLC rates to substantiate the said fact.

On the contrary, the plaintiff specifically deposed that the

prevalent market price at that point of time was Rs.1.5-2 Lacs per

bigha and DLC rates of the chak in question in the year 2014 was

Rs.1,80,000/- per bigha. The reason why the rates of land in

question were comparatively lesser than the market price was also

given by the plaintiff and no evidence to controvert the same was

led by the defendant.

In view of the evidence as led by the parties, the Court

below decided the issue against the defendant and rightly so. This

Court does not find any ground to interfere with the same and the

finding on Issue No.3 is also hereby affirmed.

23.

Regarding the alternate plea raised by learned counsel for

the appellant for a modified decree for re-payment of the

consideration amount in lieu of the decree for specific

performance, it is suffice to state that the said plea was never

taken by the defendant before both the Courts below and not even

in the present memo of appeal. It is the settled proposition of law

that a decree to the extent of repayment of the consideration

amount in lieu of the decree of specific performance can only be

granted by a Court if a plea qua the same has been made and

evidence has been led to the effect that the same would suffice

the purpose or that the same is justifiable keeping into

[2023:RJ-JD:29796]

(18 of 18)

[CFA-532/2022]

consideration the enhanced market price or so. In the present

matter, no such plea had ever been taken by the defendant and

hence, the said plea cannot be permitted and entertained by this

Court at this stage.

24.

The findings on all the issues having been affirmed by this

Court, no ground to interfere with the impugned judgment and

decree dated 21.10.2022 is made out and the present appeal is

hence, dismissed being devoid of merits.

25.

Stay petition and all the pending applications, if any, stand

disposed of.

(REKHA BORANA),J

T.Singh/-

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