Karnataka High Court
Smt.Noorjahan D/O Ameensab Hadimani ... vs Abdul Ravvoof S/O Mehabubsab ... on 16 October, 2020
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
REGULAR FIRST APPEAL NO.200013/2016
BETWEEN:
1. SMT. NOORJAHAN D/O. AMEENSAB HADIMANI
AGE: 33 YEARS OCC: HOUSEHOLD WORK
R/O. UKKALI, TQ. B.BAGEWADI
2. SMT. LALABI D/O. AMEENSAB HADIMANI
AGE: 31 YEARS OCC: H.H.WORK,
R/O. UKKALI, TQ. B.BAGEWADI. .... APPELLANTS
(BY SRI G.G.CHAGASHETTI & SRI. I.R.BIRADAR, ADVS.)
AND:
ABDUL RAVOOF S/O. MEHABUBSAB NAGARBAWADI
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O. NEAR BADIKAMN,
VIJAYAPUR - 586 101. ... RESPONDENT
(BY SRI MANVENDRA REDDY, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CODE OF CIVIL PROCEDURE PRAYING TO
ALLOW THIS REGULAR FIRST APPEAL AND TO SET ASIDE
THE JUDGMENT AND DECREE DATED:22.01.2016
PASSED BY THE SR. CIVIL JUDGE AT BASAVANA
BAGEWADI IN O.S.NO.380/2011.
THIS REGULAR FIRST APPEAL HAVING BEEN
HEARD, RESERVED FOR JUDGMENT COMING ON FOR
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal filed by the defendants lays challenge to the judgment and decree passed by the Senior Civil Judge, at Basavan Bagewadi in O.S.No.380/2011 dated 22.01.2016 decreeing the suit of the plaintiff for specific performance of contract of sale.
2. The parties will be referred as the plaintiff and the defendants as per their ranking before the Trial Court for the sake of convenience.
3. Brief contentions of the parties are as follows:-
The plaintiff instituted a suit seeking relief of specific performance of contract of sale in respect of agricultural land directing the defendants to execute the sale deed after receiving balance consideration of Rs.12,78,000/-. Alternatively, sought for refund of the earnest money along with interest at the rate of 18% p.a. 3
4. It is the contention of the plaintiff that defendants are full sisters and absolute owners of suit land bearing R.S.No.912, measuring 23 acres, 18 guntas, situated at Ukkali village. It is contended that in the year 2010, the defendants brought the land for sale to meet their legal necessity. After negotiation, the defendants agreed to sell the land for a total consideration of Rs.14,78,000/-. It was further agreed that out of the total sale consideration, a sum of Rs.2,00,000/- shall be paid as an earnest money and the remaining sum shall be paid at the time of execution of sale deed. Accordingly, in the presence of witnesses the plaintiff paid a sum of Rs.2,00,000/- to the defendants. In this regard, the terms of agreement were reduced into writing and a deed of agreement was registered in the office of the Sub-Registrar, Bagewadi. 4
5. It is further contended that the plaintiff has been ready and willing to perform his part of contract, but the defendants went on postponing the execution of the sale deed on one or other false pretext. Though the plaintiff has requested them many times, the defendants postponed execution of the sale deed. Then the plaintiff got issued a notice on 16.08.2011 calling upon them to execute the sale deed, but the defendants gave false and evasive reply. Then the plaintiff filed the present suit seeking the above said relief.
6. Defendants Nos.1 and 2 appeared and filed their written statements. They contended that the said land was owned by their father by name Ameensab. The said Ameensab was not having any male issues. The defendants are only daughters to him. The husbands of the defendants are not having land property or house property. So, looking into their poor financial conditions, the father i.e., Ameensab got mutated their 5 names to the suit land. Then they came to Ukkali village alongwith their husband and started cultivating the suit land and it is only source of income to the family of the defendants. It is further contended that they are illiterate persons and do not know sale and purchase transaction. They are solely depending upon the suit land for their livelihood. It is further contended that the defendants do not know the plaintiff and any talks with them. They never intend to sell the said property to any body, much less, to the plaintiff.
7. It is their defense that in the month of September 2010, the father of the defendants called them stating that he has taken a loan from the plaintiff and the plaintiff is demanding a document from him. He told both the defendants to execute a document as demanded by the plaintiff as a security for the said loan borrowed by him. Accordingly, they have signed the papers as a security for the loan taken by their father. 6 They were taken by their father and the husband of defendant No.1 along with the plaintiff to Sub-Registrar Office. They were asked to sit in the corner of the Sub- Registrar Office then their photos were taken and signature were taken. They do not know the nature and contents of the documents.
8. It is contended by the defendants that for the first instance they came to know about the sale transaction to the effect that it is an agreement of sale. In fact, it was contended by the defendants that they have not entered into any such agreement. The plaintiff is a native of Bijapur. He was indulging in advancing loans and got executed agreements in his favour. The price of the land per acre is more than Rs.10,00,000/- (Rupees Ten Lakh). This suit is filed only to engulf the property of the defendants. They contended that as their father told them about taking loan, if the exact amount of loan taken by their father is 7 shown to the Court they are ready to repay the same to the plaintiff. With these contentions, they prayed for dismissal of the suit.
9. On the basis of the above pleadings, the following issues are framed by the Trial Court:
i. Whether the plaintiff proves that the defendants executed the agreement of sale dated 20.09.2010 agreeing to sell the suit property for a valid consideration for Rs.14,78,000/- and received earnest amount of Rs.2,00,000/-?
ii. Whether the plaintiff proves that he is always ready and willing to perform his part of contract?
iii. Whether the defendants prove that they have executed the document for security of the loan?8
iv. Whether the plaintiff is entitled for the relief of specific performance of contract as sought for?
v Whether the plaintiff is entitled for the alternative relief of refund of earnest money with interest?
vi. What order or Decree?
10. In order to prove his case, the plaintiff got examined himself as PW.1 and got examined one witness as PW.2 and got marked sixteen documents as Exhibits-P1 to P16 and closed his side evidence. The defendant No.1 and 2 got examined themselves as DWs.1 and 2 and got examined the husband of defendant No.1 by name of Maheboobsab as DW.3 and closed their side evidence no documents were marked for defendants.
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11. After hearing both sides, the Trial Court decreed the suit. Aggrieved by the same, these defendants have preferred this appeal on the following grounds:-
a) That the judgment and decree is illegal, erroneous in law based on non-consideration of material evidence brought on record.
b) The scribe of the alleged agreement of sale Ex.P.2 was not examined nor any steps taken to examine him.
c) DW.3 evidence clearly indicates that the transaction is a loan transaction between the father of the defendants and plaintiff, but the Trial Court failed to consider his evidence.
d) PW.1 also admitted that he has instructed the bond writer to write the documents, but not the defendants.10
e) The jurisdiction to decree the specific performance of contract under Section 20 (1) of Specific Relief Act is a discretionary.
f) Only after receiving a notice by the plaintiff, the defendants came to know about the nature of the documents. In fact they have executed the documents as per the say of their father for the security of the loan taken by him.
g) Though the plaintiff has admitted that the defendants have not intention to sell the suit property and they are not having any property standing in their names, when the sale agreement of sale executed. But inspite of that the Trial Court decreed the suit.
h) The plaintiff by taking unfair advantage of their father and used this suit as a instrument of oppression.
i) The plaintiff intentionally issued notice to defendants after death of their father in the month of August - 2011.11
j) Though the alleged agreement of sale has taken place on 20.09.2010 and he had not taken any steps till the death of their father.
That itself shows that plaintiff failed to perform his part of contract With these main contentions, they have prayed to allow the appeal.
12. I have heard Sri. I. R. Biradar, learned counsel for the appellants an Sri. Manvendra Reddy, learned Senior counsel for the respondent.
13. The learned counsel for the appellants Sri. I.R. Biradar, argued that the plaintiff failed to prove the agreement of sale. The scribe of the said document is not examined. Defendants are illiterate and the said agreement of sale was not read-over to them. Simply they were made to sign the said document as per say of their father without knowing the nature of document. Plaintiff has not taken any steps till the death of the father of the defendants. He kept quite nearly for more 12 than 11 months from the date of alleged Agreement of Sale. The evidence of DW.3 one of the attesting witness to the said agreement clearly indicates that it is loan transaction. The Trial Court has not considered his evidence. The admission made by the PW.1 in his cross- examination is not properly appreciated. The learned counsel further argued that the relief of specific performance of contract being a discretionary relief and when there is a evidence that the plaintiff was never willing to perform essential terms of the contract, then the Trial Court ought not have decreed the suit.
14. Against this, Sri. Manvendra Reddy, learned Senior counsel for the respondent argued that the Agreement of Sale is a registered one. If the defendants denied the same, the burden of proof is on the defendants to prove that the said document is only a security for loan obtained by their father. There are no material to show that the value of the land was Rs.10,00,000/- per acre at the time of sale agreement 13 as contended by the defendants. No sale statistics of the said year were produced. No evidence is adduced to show the market value of the property. The defendants have not pleaded any hardship in their pleadings. In the cross-examination they have admitted that they are having other lands. It is argued that DW.3 is none other than the husband of one of the defendants. His evidence also indicates that there is an Agreement of Sale. The cross-examination of defendants and their witness clearly indicates that the Agreement of Sale is executed by them. The plaintiff has also given his evidence and adduced evidence of one attesting witness to the said agreement of sale. The plaintiff has also produced the documentary evidence, which supports his case.
15. The learned counsel further argued that the agreement of sale is a registered agreement, if such a registered document is not believed then the sanctity of the contract will be at stake. In support of his argument, the learned counsel relied upon the following 14 decisions, (1) 2014 (5) KCCR 1270 (SC) in the case of K.Prakash v. B.R.Sampath Kumar, (2) 2014 (5) KCCR 1280 in the case of Yellappa and others vs. Hussainsab Fakrusab Angadi, (3) MANU/SC/0975/2014 Equivalent Citation : AIR 2015 SC 580, 2015 (1) AKR 397 in the case of Zarina Siddiqui vs A. Ramalingam, (4) AIR 2018 SC 340 :
AIR 2018 SC (CIVIL) 877 in the case of Ramathal vs. Maruthathal and (5) 2019 (2) AKR 509 in the case of Mehaboob S/o Hussainkhan Pathan v. Noor Ahmed S/o Bashir Ahmed Kalaigar and others. With these contentions, the learned counsel prayed for dismissal of the appeal.
16. From the above material the points that arise for my consideration are :
01. Whether the respondent/plaintiff proves that the appellants/defendants executed the Agreement of Sale on 20.09.2010, agreeing to sell the suit property for a valid consideration of 15 Rs.14,78,000/- and received Rs.2,00,000/- as an earnest money.
02. Whether the respondent/plaintiff proves that he is and was ready and willing to perform his part of contract?
03. Whether the appellants/defendants prove that they have executed the said document i.e., agreement of sale as a security for the loan borrowed by their father?
04. Whether the judgment and decree passed by the Trial Court is illegal, perverse and needs interference by this Court?
17. The undisputed contentions in this case are that the suit land earlier belonged to the father of the defendants. It is also admitted that their father transferred the said suit land in the name of these defendants. As on the date of the execution of the said deed, the suit land stood in the name of the defendants. The defendants also admit the execution of the said document and agreement of sale at Exhibit-P2, but they 16 contend that it is only as a security for the loan borrowed by their father. But defendants have not stated when and how much amount their father borrowed as loan.
18. In order to prove his case, the plaintiff has given his own evidence as PW-1. In the examination-in- chief, he has reiterated the contention taken by him in the plaint. He has stated about the execution of the agreement of sale by these defendants and receiving of a sum of Rs.2,00,000/- (Rupees Two Lakh), as an earnest money by them, in the presence of the witnesses and the said agreement was registered in the office of the Sub-Registrar on 20.09.2010. He has also stated that he has been ready and willing to perform his part of contract and he requested the defendants to execute the sale deed by receiving the remaining amount. But the defendants postponed the same. Hence, he issued notice to them. As they gave untenable reply, he filed the instant suit.
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19. In support of his oral evidence, he has produced the RTC extracts of the suit land. Exhibit-P1 - Record of Right indicates the suit land bearing survey No.912, measuring 23 acres and 18 guntas, which is standing in the name of these defendants for the year 2009-2010. Exhibit-P2 is the registered agreement of sale which indicates that the said suit land was agreed to be sold to the plaintiff for the total sale consideration of Rs.14,78,000/-, out of which, a sum of Rs.2,00,000/- was received as an earnest money and there was an agreement to execute the sale deed within a period of 11 months thereafter. Even the defendants have acknowledged the receipt of the sum of Rs.2,00,000/- on that day. He has stated that the father of the defendants has also signed the said agreement and the husband of defendant No.1 has also signed the said document as an attesting witness. Exhibit-P3 is the legal notice dated 16.08.2011. Exhibit-P3A is the postal receipts and Exhibits-P4 and P5 are the postal 18 acknowledgements, which indicates that notice is received by defendants on 28.08.2011. Exhibit-P6 is the reply notice where the defendants have admitted about execution of the said document. But it is stated that as per the say of their father, they have signed the document as a security for the loan taken by their father. It is further stated that the plaintiff has to take the amount from their father but unfortunately their father died. Hence, they have denied their liability to execute the sale deed. Exhibit-P7 is the RTC in respect of Sy.No.912 of the suit land for the year 2013-2014 which is also standing in the name of defendants. Exhibit-P8 is the RTC extracts in respect of survey No.998 of the said village measuring 13 acres, 12 guntas and Exhibit-P9 is the survey No.866 measuring 10 acres 6 guntas standing in the name of the defendants for the year 2013-2014. These properties are admittedly came to the defendants after the death of their father. Exhibit-P10 is the mutation extract which 19 discloses that the father of the defendants has made a partition and has allotted suit property to defendants and retained the other two properties. Exhibits-P11, P12, P13, P14, P15 and P16 are all the mutation order to show as to how the properties were transferred. Exhibit-P16 is the mutation extract.
20. Though the plaintiff was cross-examined at length, there is nothing in his cross-examination so as to disbelieve his evidence. Only few suggestions are made which he has denied. It is suggested that the father of the defendant has given those properties only for their livelihood. Hence, these types of suggestions are contrary to the contention of the defendants. On the other hand, the defendants themselves have contended that the said property was given to them in a partition made by their father. It is suggested that the defendants have no source of income except this property, he has denied it. It is suggested that he 20 pressurized the father of the defendants to return the hand loan, as he was not having money, plaintiff asked defendants father to execute a deed for security of the loan. In view of his pressure, the defendants could not go against his father and hence this sale agreement was executed, he has denied the said suggestion. It is suggested that the suit property value is Rs.10,00,000/- per acre, which also he denied.
21. In support of his evidence, the plaintiff got examined one Sri.Bude Sab of the said Ukkali village as PW.2 who is the attesting witness to the said agreement of sale. He has also supported and corroborated the evidence of PW-1. He has also stated about receipt of Rs.2,00,000/- by the defendants and execution of the said agreement of sale and registration of the said deed. He has also stated that the father of the defendants was present, he has stated the name of the scribe, he has also stated the husband of defendant No.1 has also 21 attested the said document. Though he was also cross- examined at length, there is nothing in his cross- examination so as to disbelieve his evidence. It is suggested that this witness is in the habit of giving loan to the farmers and he used to get documents from the farmers, as and how he wishes and he is in the habit of purchasing the lands of the farmers if they fail to repay the loan. But, these types of suggestions which are denied by PW.2 are not pleaded in the written statement. Making such suggestion and bringing up a new case is not permissible. Without their being any pleading, the party cannot suddenly bring up a new case in the cross-examination. He has clearly denied that the father of the defendants has not borrowed any loan.
22. Against this, defendant Nos.1 and 2 have given their evidence as DW.1 and DW.2. In their examination-in-chief Affidavit they have reiterated their 22 written statement contention, it is also evident from their evidence that they were residing at Sollapur. Defendant No.2 husband secured a job as a water man in the Civil Hospital at Sollapur. But in the cross- examination DW-1 has clearly admitted that the suit property is standing in their name. They have also admitted the receipt of the notice issued by the plaintiff. The marriage of the defendants had taken place about 42 years ago from the date of they giving evidence. It is suggested to DW.1 that as her father's health was not good and they were not getting good income. So, they agreed to sell the land, which she has denied. But she has admitted about going to Sub-Registrar's office, admits their photos on registered document. But she went to the extent of denying the signature of her father and when a question is put to her that the agreement was written as per their say, she kept quiet and did not answer that question as observed by the trial court at page-5 of the deposition. She has clearly admitted that 23 after the said agreement was written it was read over she has put her signature. Hence, this admission falsified the defence of the defendants. She has also stated that she is not aware why her father has taken a loan from a person at Bijapur.
23. Similarly DW-2, Lalbi has also clearly admitted in her cross-examination about their photo appearing in the registered agreement Exhibit-P2 she admits that she has put her thumb impression signature on it. She has clearly stated that her father and her sister husband were also present. She has clearly admitted in the cross examination that the contents of Exhibit-P2 are known to herself her husband and her father. This clearly indicates that the said document was written, it was read over to them, the father of the defendant was present, he has also attested the said document, the husband of defendant No.1 also attested the said document. To a question she 24 has stated that the sale talks were concluded for purchasing the said land for Rs.14,78,000/- and they have received Rs.2,00,000/- she has stated that it is known to her father. She has also admitted that they have got another 24 acres of land in their name after the death of their father.
24. So the evidence of these defendants clearly indicates that they went to the Sub Registrar office. The agreement was written and it was read over to them and then registered. They were aware of the contents of the said agreement. Now contrary to the contents of registered agreement, without any basis, they are setting-up a new defence that it is a security for the loan borrowed by their father which they fail to prove.
25. Again the evidence of DW-3 i.e., one Mehaboob who is the husband of defendant No.1 strengthens the case of plaintiff and practically demolish the defence set-up by the defendants. 25 Admittedly, he is working as a Water Man in the Civil Hospital Solapur. He has also attested the said agreement of sale as a witness. But he gives a contrary evidence in his examination-in-chief to that of DW.1 and DW.2 stating that the said document was not read over to the defendants. But the defendants have clearly admitted that the document was read over to them. In the cross-examination, he has clearly admitted that the father of the defendants was present at the time of the registration of the agreement of sale. He has further admitted that by taking a sum of Rs.2,00,000/-, these defendants i.e., Lalabi and Noorjahan executed the agreement of sale. So this admission in the cross- examination totally falsifies the defense of the defendants.
26. From the evidence of the plaintiff and defendants and the documentary evidence referred to above, it is crystal clear that the said agreement of sale 26 was written, read over to the defendants, they have received a sum of Rs.2,00,000/- and the said document was registered. Simply because, they are illiterates they cannot take a contention that the plaintiff has misused their illiteracy and created this agreement of sale. It is not their defence also. Even assuming, that they are illiterates their father who has given the land to them was present and he has signed the said agreement. The husband of one of the defendant who is working as a Water Man at the Civil Hospital was also present at the time of execution and registration of the agreement of sale and he has also attested to the said agreement of sale. Therefore, there is no question of this plaintiff taking undue advantage illiteracy of the defendants. The defendants also admit receipt of an amount, but they put blame on their father stating that their father had taken some loan from the plaintiff and for security of that loan amount their father asked them to execute the present agreement of sale. Hence, they executed the 27 said agreement of sale. Admittedly, their father was having other two lands which were standing in his name. They are now standing in the name of these defendants. His house is also now standing in the name of the defendants. If at all the defendant's father had taken a loan and if at all the plaintiff insisted him to execute a document, in this regard, he has got two lands standing in his name which he could have given as security. When he has given the suit land to these defendants for their livelihood, there was no reasons for him to ask these defendants to offer their lands as a security. Such a contention is not at all probable. On the other hand, he himself was present when these defendants executed the agreement of sale and it was registered in the Sub-Registrar office. There is no pleading or evidence to show when and how much amount the father of defendants borrowed. Simply taking vague, ambiguous contention will not help the defendants.
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27. The contention of the appellants in their appeal memo that the Scribe of the document was not examined also does not hold good in view of the admission of the defendants about the document being read over to them and they have received the amount and it is registered. Apart from that the plaintiff has taken summons to the said witness - scribe through court as evident from the records of the trial court. But it appears that the Scribe did not attend, so no adverse inference can be drawn against plaintiff as the execution of agreement of sale and receipt of money is admitted by defendants in their evidence.
28. The appellants made much about the non- consideration of the evidence of DW-3 i.e., the husband of the first defendant. As already discussed hereinabove, the evidence of DW-3 is fatal to the case of the defendants and his evidence has totally nullified the defense of the defendants. The instruction to write the 29 agreement was given by the plaintiff, is also of no consequence, as according to the defendants they are illiterates. Then it is quite natural that their father and the husband of defendant No.1 and plaintiff would have instructed the Scribe to write the documents, which was admittedly read over to these defendants, signed by them and they appeared before Sub-Registrar and got it registered. They also acknowledge receipt of Rs.2,00,000/-.
29. The learned counsel for the appellant had drawn the attention of this Court to the cross examination of the plaintiff PW.1 at para-10. I have carefully perused the evidence of PW-1. The suggestions made to him are contrary to the contention of the defendants. It is suggested that the defendants' father was cultivating suit land as a owner, which is not the case of the defendants. It is suggested when they executed this agreement of sale in the year 2011, there 30 were no other properties standing in the name of the defendants. He has admitted it. In what way it will help the defendant is not forthcoming. Again it is suggested that in the year 2011, there was no intention to sell the property. The plaintiff has stated that it is true. Admittedly, the sale agreement and transaction had taken place in the year 2010. Subsequently, the father of the defendants died and whatever properties standing in the name of the father came to these defendants. So, suggestion regarding of the year 2011 has no meaning at all. They were already having other two lands and house in their name in the year 2011, such a suggestion will not help the defendants in any way, why such suggestion is made is not forthcoming.
30. The defendants have not produced any oral or documentary evidence to show what was the market value of the lands in Ukkali village during the year of agreement of sale. Simply, taking a contention that the lands were having very high price i.e., Rs.10 Lakh per 31 acre without their being any iota of evidence will not help the defendants. No hardship is either pleaded or proved. On the other hand, the defendants have now got the other two lands from their father, which is admitted by DW-2. The extent of said lands is 24 acres. They have also got house from their father. So it is not that the suit schedule property is the only land available for their livelihood. Even the defendants went to the extent of stating that they do not know what is the amount borrowed by their father and their contention is that if the plaintiff discloses the amount borrowed by their father they are ready to return the said amount. Such a imaginary contention will not take the defendants case any further.
31. The learned counsel for the appellant relied upon a decision reported in 2014 (5) KCCR 1270 in the case of K.Prakash vs. B.R. Sampath Kumar, wherein the Hon'ble Supreme Court considered the scope of 32 Section-20 of the Specific Relief Act 1963, it is held at para 17, 18 and 19 as follows:
17. The principles which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists a condition precedent to the grant of decree for specific performance that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing.
Normally, when the trial court exercises its discretion in one way or other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Section 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree is established then the Court has to exercise 33 its discretion in favour of granting relief for specific performance.
18. Mr. Shetty, lastly submitted that grant of decree for specific performance in favour of the appellant will cause a great hardship for the reason not only because of the lesser price shown in the agreement but also because of the rise in price which have been increased ten times the price agreed between the parties.
19. Subsequent rise in price will not be treated as a hardship entailing refusal of the decree for specific performance. Rise in price is a normal change of circumstances and, therefore, on that ground a decree for specific performance cannot be reversed.
32. Further the learned counsel also relied upon another judgment in the case of Zarina Siddiqui vs. A. Ramalingam, reported in AIR 2015 SC 580 the Hon'ble Supreme Court considered and referred to its earlier judgments, it is held at para-37 as follows:
37. As held by this Court time and again, efflux of time and escalation of price of the property by itself cannot be a valid ground to deny the relief of specific performance. But the Court in its discretion 34 may impose reasonable conditions including payment of additional amount to the vendor. It is equally well settled that the plaintiff is not to be denied specific performance only on account of phenomenal increase of price during the pendency of litigation.
33. The learned counsel for the appellant further relied upon the judgment of the Hon'ble Supreme Court of India reported in AIR 2018 SC 340, in the case of Ramthal vs. Maruthathal, at para Nos.21 and 23 is held as follows:
21. The Ld. Senior Counsel appearing for seller contends that the Specific performance being an equitable remedy, condition precedent of 'readiness and willingness' has to be specifically pleaded and proved by the buyer for enforcement of the specific performance [refer K. Prakash v. B. R. Sampath Kumar, 2015 (1) SCC 597: (AIR 2015 SC 9)]. She further submits that there are only vague averments in the pleading that the buyer was ready and willing to perform his part of the contract. There is no dispute with regard to the proposition that in a suit for specific performance burden is always on the plaintiff to aver and prove 35 that they are always ready and willing to perform their part of the contract throughout. Section 16 (C) of the Specific Relief Act mandates that not only there be a plea of readiness and willingness but it also has to be proved by acceptable evidence.
Requirement of fulfilling the conditions under section 16 (C) of the Specific Relief Act, 1963, is a condition precedent for obtaining the relief of specific performance. Whereas in the instant case the plaint as well as the documents available on record goes to show that it was specifically pleaded that buyer was ready and willing to perform his part of the contract. Additionally the evidence of PW1 also proves readiness and willingness on the part of the buyer. In light of the aforesaid discussion, the contention of the Ld. Senior counsel appearing on behalf of the seller is repelled as being meritless.
23. The buyer has taken prompt steps to file a suit for specific performance as soon as the execution of the sale was stalled by the seller. From this discussion, it is clear that the buyer has always been ready and willing to perform his part of the contract at all stages. Moreover it is the seller who had always been trying to wriggle out of the contract. Now the seller cannot take advantage of 36 their own wrong and then plead that the grant of decree of specific performance would be inequitable. Escalation of prices cannot be a ground for denying the relief of specific performance. Specific performance is an equitable relief and granting the relief is the discretion of the court. The discretion has to be exercised by the court judicially and within the settled principles of law. Absolutely there is no illegality or infirmity in the judgments of the courts below which has judicially exercised its discretion and the High Court ought not to have interfered with the same.
34. Further the learned counsel also relied upon another judgment of the learned Single Judge of this Court reported in 2019(2) AKR 509, in the case of Mehaboob s/o Hussainkhan Pathan vs. Noor Ahmed s/o Bashir Ahmed Kalaigar and others, wherein it is held at para-8, as follows:
8. The undisputed facts are that the appellant and the defendant - deceased Noor Ahamed were entered into an agreement of sale in respect of the suit property stated supra. In the sale agreement, nowhere it is mentioned that such agreement is 37 executed as a measure of security. In the absence of specific wordings in the sale agreement to the extent that such sale agreement is only with reference to security measure, one cannot draw inference that such sale agreement is only with reference to security. The Court below while deciding R.A.No.448 of 2009, has not apprised Ex.P2-sale agreement, wherein it is crystal clear of sale of agreement. The appellant has shown is readiness and willingness to execute the sale agreement as and when it is due, at the same time, the defendant - deceased - Noor Ahmed has not shown his interest to execute the sale agreement on one or the other pretext including intends to give it to his son etc., Merely taking note of Section 22 of the Specific Relief Act, one cannot draw inference that it is discretionary in respect of extending the relief of specific performance under the Specific Relief Act. Ex.P2 cannot be ignored while applying Section 22 of the Specific Relief Act. 9 :Thus, the Court below has erred while taking note of Section 22 of the Specific Relief Act in denying the specific performance in the matter without appreciating the contents of Ex.P2 - sale agreement. Accordingly, R.A.No.448 of 2009 stands dismissed while affirming the decree passed in O.S.No.4 of 2003, dated 19th January 2006.38
35. In the light of legal principles stated in the aforesaid decisions stated supra, if the evidence of plaintiff and defendants are considered, then it is evident that the plaintiff has successfully proved that the defendants have executed the agreement of sale on 20.09.2010 agreeing to sell the suit schedule property for a consideration of Rs.14,78,000/- and received an earnest amount of Rs.2,00,000/-. The plaintiff has also proved that he was asking the defendants to execute the sale deed, but as they did not execute, he issued notice and immediately filed a suit which indicate that he was always ready and willing to perform his part of contract. On the other hand, the defendants have failed to prove that the said agreement was executed only for the security of the loan borrowed by their father.
36. The agreement being a registered one and proved by the plaintiff and as he has already paid Rs.2 lakh as a part performance of his contract, as there are no grounds to refuse the equitable relief of specific 39 performance and exercise discretion in favour of plaintiff, the plaintiff is entitled for the relief sought for. Accordingly, I answer the points for consideration at sl.nos.1 and 2 in Affirmative and point no.3 in Negative.
37. I have perused the judgment of the trial court. The learned Civil Judge has framed the issues and discussed the pleadings and evidence. The learned Civil Judge has also referred to the principles of the Hon'ble Apex Court and decision of this Karnataka High Court, and has come to a right conclusion that the plaintiff has made out the case and is entitled for specific performance. Simply because there is no mention of evidence of DW-3, the judgment cannot be said as either perverse or illegal. On the other hand, it is based on sound principles regarding appreciation of evidence in a suit under Specific Relief Act, 1963. Therefore, I find no grounds to interfere with the judgment of the trial court. Accordingly, I answer points in the negative.
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38. Therefore, the appeal being devoid of merit is liable to be dismissed. Accordingly, I pass the following order.
ORDER The appeal filed under Section-96 of Civil Procedure Code by the defendants - appellants is hereby dismissed with costs.
The judgment and decree passed by the Senior Civil Judge, at Basavana Bagewadi in O.S.No.380/2011 dated 22.01.2016 is hereby confirmed.
Send back the records secured to the Trial Court forthwith.
Sd/-
JUDGE KJJ