Suit for specific performance of agreement to sell --- Fraud , collusion and misrepresentation --- Petition for setting aside of judgment and decree under S. 12 ( 2 ) , C.P.C. , pasted in favour of respondent , on the plea of fraud , collusion and misrepresentation was dismissed --- Scope --- Plaintiff filed suit for specific performance of agreement to sell dated 15.02.2004 --- Defendan No. 1 appeared in person , tendered affidavit and got recorded statement to the effect that he had no objection if the suit of the plaintiff was decreed --- On said statement of defendant No. 1 , suit was decreed Petitioner claimed that agreement to sell dated 15.02.2004 was a forged document , prepared in back date to frustrate his agreement to sell dated 13.04.2006 --- Validity --- Petitioner was in possession of the original title documents of the plot ( original Provisional Offer of Allotment Order ) dated 26.01.2004 --- Record showed that the trial Court passed the impugned order without considering as to whether Provisional Offer of Allotment Order retained status of a title document ; whether an agreement to sell could be made on the basis of Provisional Offer of Allotment Order ; the consequences of the defective plaint , affidavit and the statement of the defendant did not contain the details of the stated agreement ; the worth of the unregistered agreement to sell inter - se the plaintiff and the defendant dated 15.11.2004 ; the allegation of fraud and misrepresentation in presence of defective plaint , affidavit and the statement of the defendant and the fact of delay in approaching the Court by the plaintiff for seeking decree of specific performance of an agreement could not be resolved without affording the parties a chance to adduce their respective case / plea in a proper manner ; the claim in suit for specific performance of agreement to sell was to be assessed on the touchstone of Art . 113 of the Limitation Act , 1908 ; the period of limitation for filing application under S. 12 ( 2 ) , C.P.C. was to be assessed in terms of Art . 181 of the Limitation Act , 1908 ; the exercise of jurisdiction by the Court in terms of S. 23 of the Specific Relief Act , 1877 for decreeing the suit for specific performance of contract was discretionary in nature and the discretion was not to be exercised arbitrarily but should be based on sound legal principles after analyzing and gauging the circumstances ; the Court while deciding a matter , even on compromise or on a conceding statement , had to see the legality and genuineness of the issue brought before it ; and in case of contest by the third party , the order and decree by operation of its own term would become redundant particularly when there was allegation of fraud and misrepresentation --- Impugned order was set aside , as a result of which application of petitioner was allowed with the direction that main suit shall be deemed pending at the stage where it had been prior to passing of impugned decree and order and petitioner is afforded an opportunity to join proceedings in the suit being necessary and proper party --- Constitutional petition was allowed .
Suit for specific performance of agreement to sell --- Fraud , collusion and misrepresentation --- Petition for setting aside of judgment and decree under S. 12 ( 2 ) , C.P.C. , pasted in favour of respondent , on the plea of fraud
Writ Petition No. 2665 of 2022
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